Scottish Court of Session Decisions

By the final locality of the parish of Kilmorack. the defender, Mr Chisholm Batten, was localled upon for a certain amount of stipend. Having thereafter led a valuation by which his teind was fixed at a less sum than that localled, he brought a reduction of the locality. This reduction contained no conclusion for having a new locality made up, and decree of reduction was accordingly granted, reserving the force of the locality as an interim rule of payment till a new locality should be obtained. No new locality has yet been obtained, and, in these circumstances, the minister now sues Mr Chisholm Batten for his stipend according to the old locality.

In defence, it was pleaded (1) that the action was incompetent, because, if the decree of locality was good, it authorised a direct charge upon letters of horning; (2) that the action was bad upon the merits, in respect it sought to make the heritor liable in more than the amount of his teind as fixed by the valuation, which was not a result within the powers of the Court, notwithstanding of the reservation in the decree of reduction, which the defender pleaded was ultra vires and incompetent.

The Lord Ordinary ( Ormidale) held the action incompetent, adopting the defender's plea to that effect. The following is the Lord Ordinary's interlocutor:—“ Edinburgh, 24 th November 1868.—The Lord Ordinary having heard counsel for the parties, and considered the argument and proceedings—Sustains the first plea in law for the defenders, dismisses the action, and decerns: Finds the defenders entitled to expenses; allows them to lodge an account thereof, and remits it when lodged to the auditor to tax and report.

“ Note—It was not disputed that the pursuer could have proceeded at once to enforce payment of the sums of money he now sues for, by diligence under the decree of modification and locality already held by him; and it was conceded by the pursuer that it would be incompetent for a party holding an ordinary decree of this Court for a debt to institute a second action in order to obtain another decree for the same debt. It appears to the Lord Ordinary that it is also incompetent for the pursuer to seek by the present action to obtain a decree for payment of sums of money which have been already constituted in his favour, although not at his instance, by a decree of the proper Court, in virtue of which diligence is just as available to him as it would be by the decree he has concluded for in this action.

“Letters of horning at the instance of ministers holding decrees of locality and modification, are by the Act 1633, cap. 8, authorised to be issued, under which a charge of payment within ten days may be given; and, by Act of Sederunt, 22d June 1687, it is declared that ⁅where a decree of locality is obtained by a minister for his stipend, any succeeding minister needs not obtain a decree conform thereupon, but upon a bill given in by him to the Clerk of the Bills in the ordinary way, and production of his presentation, collation, and institution, with the decree of locality obtained by his predecessor, letters of horning may be direct against those liable in payment of his stipend, notwithstanding any form, custom, or practice to the contrary.⁆ There can be no doubt, therefore, that the pursuer might, without the necessity of any action such as the present, have proceeded with diligence on the existing decree of locality to enforce payment of the sums in question, and why he did not do so does not appear, and has not been explained.

“The only ground on which the pursuer supported the present action was, that under a decree of modification and locality, differing, as he said, in this respect from an ordinary decree of the Court of Session, diligence would be incompetent at the instance of his assignee or other representative, as found in the old case of Livingstone, 17th December 1612, Mor. 10,320; but to this it seems sufficient to answer that the present action is not at the instance of an assignee or other representative. Besides, the case of Livingstone> having occurred prior to the Act of Parliament and Act of Sederunt above referred to, cannot be treated as of authority in the present discussion, the more especially when the provisions of the Personal Diligence Act, 1 and 2 Vict. c. 114, are kept in view. By section first of that Act provision is made for decrees in the Court of Session, Teind Court, and Court of Justiciary, containing warrants to arrest and poind; and by section seventh provision is made for any person acquiring right to such decrees either by ⁅assignation, confirmation, or other legal evidence of such acquired right,⁆ to have diligence at his instance, in virtue of them, to the same effect as the original creditor therein.

“The Lord Ordinary, for the reasons now adverted to, has been unable to see any sufficient ground for sustaining the present action. He thinks that to have done so would be acting contrary to the obvious policy of the enactments bearing on the matter, and be productive of unnecessary litigation and expense. In the present instance, the pursuer, through his counsel, stated, in answer to an inquiry by the Lord Ordinary, that he not only did not depart from, but insisted in his conclusion for expenses against the defenders; and this just shows that the defenders have a material interest in resisting the action, and maintaining that it should be dismissed.”

The pursuer reclaimed.

The Court recalled the Lord Ordinary's interlocutor, sustained the competency of the action, and continued the cause to be heard on its merits.

Clark and Watson for pursuer.

Lee and Mackay for defender.

After argument upon the merits, the Court held that the heritor having taken his decree of reduction subject to the reservation contained in it, that reservation must receive effect; that, in virtue of the reservation, the old locality subsisted as an interim scheme; and therefore, that the minister was entitled to decree in terms of the conclusions of his summons.