Scottish Court of Session Decisions

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Cite as: [1865] ScotLR 1_72, [1865] SLR 1_72

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SCOTTISH_SLR_Court_of_Session

Page: 72↓

Court of Session Inner House Second Division.

1 SLR 72

Duke of Buccleuch

v.

The Magistrates and Town Council of Sanquhar.

Subject_1Teinds
Subject_2Arrears
Subject_3Usus.
Facts:

Defence to an action by a titular of teinds for payment of arrears founded upon an alleged usus, repelled.

Headnote:

This is an action at the instance of the Duke of Buccleuch as titular and patron of the parish of Sanquhar, concluding against the defenders for payment of the whole teinds in their lands lying within the parish of Sanquhar, under deduction of that proportion of the teinds which is payable to the minister as stipend. It is not disputed that the Duke is in right of the teinds of the lands in question. The summons contains conclusions applicable to two sums of £310, os. 5 1 2d., and £718, 19s. 9d., with interest respectively. It is proved from the rental of the Queensberry estates, of which the teinds in question form part, and from the accounts of the factors, that down to Martinmas 1810 no higher sum was exacted in name of teind from the burgh of Sanquhar than £5, 18s. 2d., which was the sum received from the burgh in full of their teinds, less the teind for the Duke's property in the burgh. The defenders admit that from this date (1810), although they continued to be charged on the rentals as due annually in name of teind this sum of £5, 18s. 2d., no actual payment of teind has been made by the burgh of Sanquhar; and one of the reasons assigned for there being no settlement is, that in 1815 the Buccleuch family became tenant of the burgh in certain leases, which gave the burgh a counter claim in name of rent of £18, 10s. annually. The pursuer alleges that from the year 1822 down to crop and year 1830 inclusive, the teind of the defenders' lands was not much more than sufficient to meet the share of the stipend modified on 18th December 1822, which was ultimately localled thereon, and has been paid by him (the pursuer) to the minister of Sanquhar. It is to this payment by the pursuer of the stipend of the minister throughout the above-mentioned period that the first conclusion of the summons is applicable. But this claim has been arranged by the pursuer obtaining credit for the amount in the counter-account of rents due by him to the burgh; and a minute restricting the libel was accordingly put in. The second and remaining conclusion of the summons is for payment of teind alleged to be due by the defenders to the pursuer as titular from 1830 to 1863. The defence against this claim is that down to 26th June 1862, when the agent of the Duke intimated an intention to exact the full measure of his legal right, no higher sum can be charged against the burgh in name of teind than the sum of £5, 18s. 2d., payable by use and wont. It is admitted that the teind has never been valued.

The Lord Ordinary (Kinloch) sustained the defence, holding it to be finally established in teind law that where for a long term of years there has been a use of payment of a certain annual sum in name of unvalued teind, this must be held to be the
Page: 73↓
amount legally due in any question as to arrears, and until formal intimation is made of an intention to exact the full measure of legal right. Against this judgment the Duke of Buccleuch reclaimed.

The case was advised to-day.

Judgment:

Lord Benholme, who delivered the leading judgment, said, that the plea which had been sustained for the defenders by the Lord Ordinary was the second which proceeded upon an alleged tack arrangement or use of payment. It appeared that in the year 1726 the chamberlain of the Duke of Queensberry received directions to take payment from the burgh of Sanquhar of the sum of £5, 18s. 2d., and therefor to grant them a complete discharge, but without specifying any amount. The chamberlain acted in terms of these instructions down to 1810, since which time no payments have been made, but it is quite clear that the arrangement was purely gratuitous, and that the titular was no longer bound than he chose to abide by it. His Lordship then referred to the cases upon which the Lord Ordinary's judgment was founded, and said that the principle of these cases was, that when a party took upon himself the character of titular, and in that character granted discharges for teinds, this was a colourable title under which the heritor might possess and consume surplus teinds. In the cases referred to the discharge had been granted by the minister, who, in so doing, necessarily assumed that he was parson, and had right to the teinds as such. His Lordship also referred to an older case, as illustrating the difference in reference to this question between a parson and a stipendiary. In the present case the Lord Ordinary's judgment appeared to proceed upon the ground that stipend was paid to the minister throughout the period to which the claim for arrears applies, and he can see no reason for distinguishing it from the cases in which such payments have been sustained as constituting a colourable title. But the minister of Sanquhar was notoriously a stipendiary, and therefore the ground of judgment relied upon by the Lord Ordinary completely failed. There was, however, another ground which, though not expressly pleaded on record, appeared to have been in the Lord Ordinary's mind. After the accession of the Dukes of Buccleuch to the Queensberry estates the sum of £5, 18s. 2d., which had been exacted from the burgh of Sanquhar in name of teind, was transferred to their rental books, and appears entered therein down to the year 1860. But these entries were not communicated to the burgh, and could not be regarded as limiting the titular's right to the sum in question. On these grounds the Lord Ordinary's interlocutor must be recalled. Whether that will prove beneficial to the titular or not he could not say.

The other judges concurred.

The interlocutor of the Lord Ordinary was therefore altered, the defenders' second plea-in-law repelled, and the case remitted back to the Lord Ordinary.

Counsel:

Counsel for the Pursuer—The Solicitor-General and Mr Watson. Agents— Messrs J. & H. G. Gibson, W.S.

Counsel for the Defender— Mr Cook and Mr Hall. Agent— Mr Kennedy, W.S.
1865