Scottish Court of Session Decisions

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Cite as: [1867] ScotLR 3_123_1, [1867] SLR 3_123_1

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SCOTTISH_SLR_Court_of_Session

Page: 123↓

Court of Teinds.

Wednessday, Dec 19. 1867

3 SLR 123_1

Minister of Kilbirnie

v.

The Heritors

Subject_1Augmentation of Stipend
Subject_2Objection that Teinds Valued.

Facts:

An objection having been stated to an augmentation that the whole teinds of the parish had been valued in 1636, and the decree of valuation having been recognised in an augmentation granted in 1815, and since then acquiesced in, although it was now said to be invalid, held that the minister must first raise a declarator of the invalidity of the decree, and process sisted for this purpose.

Headnote:

This was a process of augmentation, modification, and locality, at the instance of the Rev. John Orr, minister of the parish of Kilbirnie, against the heritors. The last augmentation was granted in 1815. The minister now asked for an augmentation of 10 chalders, and £15 for communion elements.

Marshall (with him Rutheefurd Clark), for the heritors, objected (1) There was no free teind. The parish consisted of three baronies, Ladyland, Glengarnock, and Kilbirnie. By three separate decrees, applicable to the various baronies, the whole teinds in the parish had been valued, and the minister was in possession of the total valued teind. The decree of valuation of the lands and barony of Kilbirnie was dated 16th March 1636. To this valuation the minister for the time was a party, for the decree was an incidental proceeding in a process of augmentation at his instance. But even if the minister was not cognisant of this decree, the valuation was not thereby invalid, as it was an act of the High Commission of 1633. Simpson v. Skene, 20th June 1837, 15 S. 1163. (2) If the augmentation asked were granted, the stipend would at once be leviable. As the interim scheme of locality could not be reviewed, there would be no opportunity of then having the validity or invalidity of the decree of 1636 ascertained. (3) The augmentation asked was excessive.

Hamilton Pyper, for the minister, argued—The decree of March 1636 was null, in respect the minister was not called as a party. Brown v. Stewart, 31st January 1851, 13 D. 556; Minister of Banchoty-Devenick v. the Heritors, July 1 1863, 1 M'P. 1014, and February 3, 1865, 3 M'Ph. 482; Kirkwood v. Grant, Nov. 7, 1865, 4 M'Ph. 4.

Judgment:

The Lord President—This question is one of expediency, convenience, and justice, rather than of law or of fixed rule. Here an augmentation is asked to which confessedly objections as to the granting or refusing of it will be made by the heritors. I don't mean to say that the mere production of a decree of valuation ex facie bad will be a stopper to a process of this kind. But if a decree of valuation is produced which has certain sanctions attached to it, and which obviously requires discussion and inquiry,

Page: 124↓

then comes the question, what are we to do at this stage of such a case? Although I may be inclined to draw certain inferences from the tenor and import of this decree, I think it does require consideration, and has certain sanctions attached to it. It is a decree which has received effect in the process of 1815. It had then been produced, and no objections had been taken to it or none had received effect. Then there has been acquiescence in that view of matters for fifty years. There was sufficient opportunity to bring an augmentation, and there were strong considerations to induce the minister to do so. He has not done so. I think, therefore, there has been acquiescence. In these circumstances I think this decree requires further discussion. At what stage is that to be had? If we grant the augmentation at present, it would appear the result would be that the heritors would be compelled to pay under the interim scheme of locality, although it might be ascertained in the discussion of the final scheme that this was a valid decree. That would be inconsistent with justice. Therefore, I am disposed to sist procedure until an action of declarator is raised for the purpose of ascertaining the validity or invalidity of this decree; and I think this action should be at the instance of the minister. Meantime, he will have the benefit of the date at which he has brought his augmentation.

The Lord Justice-Clerk—I concur; but I cannot help expressing regret that there are no means of trying such a question as this in the process of augmentation. Whether it would be competent to us to grant the augmentation conditionally upon there being found to be free teind, and remitting to the, Lord Ordinary to ascertain that before preparation of the interim scheme, I give no opinion. But I cannot help saying that I do not see any reason why this should not be made competent by Act of Sederunt, there being no statute law on the subject. But I don't much regret, in the present case, that we should come to the conclusion of requiring the minister to clear his way by an action of declarator, because the incumbent of the parish since 1815, having remained quiescent, it is no great hardship that he should be called upon to take a step which, under other circumstances, might be a hardship.

The other Judges concurred.

Solicitors: Agent for the Minister— John Gillespie, W.S.

Agents for the Heritors— Tods, Murray, & Jamieson, W. S.

1867