Scottish Court of Session Decisions

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Cite as: [1866] SLR 1_192_2, [1866] ScotLR 1_192_2

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SCOTTISH_SLR_Court_of_Session

Page: 192↓

Court of Teinds Inner House Second Division.

Wednesday, Feb. 28. 1866.

1 SLR 192_2

Cowan

v.

Cook and Others.

Subject_1Teinds
Subject_2Valuation
Subject_3Approbalion
Subject_4Dereliction. Headnote:

Circumstances in which held that an heritor's right to obtain approbation of a sub-valuation of teinds made in 1862 had not been lost by dereliction.

This is an action of approbation of a sub-valuation of the teinds of the lands of Boghall at the instance of William Cowan, Esq., of Linburn, against Mr Cook, the minister, and Lord Hopetoun, the patron and the titular of the teinds of the parish of Bathgate. The sub-valuation was made in the year 1629, when the teinds were valued at 440 merks, or £24, 8s. 10d., being one-fifth part of 2200 merks, or £122, 4s. 5d. The action was opposed by the minister, who pleaded that Mr Cowan was not now entitled to obtain the approbation of the valuation by reason of dereliction of the right so conferred on him. The Court to-day repelled this plea and pronounced decree of approbation as concluded for. The judgment of the Court was delivered by

Judgment:

The Lord President, who said—The length of time which has elapsed since 1629 is clearly no objection to the approval of this valuation. There is no prescription in regard to such a matter. It is

Page: 193↓

not stated that there is any irregularity apparent ex facie of the valuation, but it appears that an augmentation was awarded to the minister of Bathgate in the year 1793, and a locality was fixed consequent thereon early in the year 1800, and as no step has been taken since then to obtain an approval of the valuation, this action is now met by a plea of dereliction. That is a well — known plea which has been sustained in many cases. The question is, whether it is applicable to the circumstances of the present case. The stipend, which was modified in 1793, consisted partly of money and partly of victual. Since that time there have been a great many years during which payments have been made by the heritor of the lands in question in excess of that required by the sub-valuation; and the inference deduced is that the heritor must be held to have relinquished his right. It is not very easy to see on what principles the previous cases have proceeded. It is sometimes stated that the ground of the plea is that the heritor supposes that there is a defect in his decree, and therefore has abstained from asking its approval. In some cases again, it is said that the decree had not been used because it was not for the interest of the heritor to do so. On the part of the heritor it is argued that a person is not to be presumed as intending to abandon a right which he has acquired, but it may be apparent that at all events he has intended not to insist on it. The question is—Do the circumstances of this case justify us in holding that the heritor relinquished his right? The cases where overpayments have been made are much more numerous than those where they have not. Sometimes the overpayments were very small, and sometimes they were considerable. In the first year after 1799 the overpayment was very considerable. But there are also circumstances favourable to the heritor. It does not appear that prior to 1793 there was any overpayment. Then the years 1799 and 1800 are well known to have been years of great scarcity, and therefore exceptional. Again from 1805 to 1818 the heritor in possession of the lands was a pupil, and although I do not say that the years of pupilarity are to be deducted as in prescription, the fact is a circumstance in the case of some importance. Then from 1821 downwards there seem to have been 20 years of overpayment, and only 10 of under-payment, but the average sum overpaid is only £1, 7s. a year. It appears to me therefore that in the circumstances of this case the heritor cannot be held to have relinquished his right. He could not seemingly have raised the question without litigation, which was expensive, and not very desirable in such a matter. It is therefore reasonable to suppose that he waited until now when there has been a new augmentation, and a new locality, and therefore an increase of the interest he had to have the valuation approved of.

The pursuer asked for expenses, but his motion was refused, the difficulty having been caused by his own delay.

Counsel:

Counsel for Pursuer— Mr Clark and Mr Shand. Agent— Mr James Dalgleish, W.S.

Counsel for Defender— Mr Cook. Agents— Messrs W. & J. Cooke, W.S.
1866