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Cite as: [1871] SLR 8_357, [1871] ScotLR 8_357

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House First Division.

Saturday, February 11. 1871.

8 SLR 357

Magistrates of Glasgow

v.

Hay (Common Agent in the Barony Locality).

Subject_1Process
Subject_2Teinds
Subject_3Expenses of Common Agent
Subject_4Locality — Interim Scheme.
Facts:

Held that the common agent in a process of augmentation and locality was entitled to payment of his expenses after the interim scheme of locality had been made up and approved of, and that he was not bound to wait until the objections had been disposed of and the interim scheme become final.

Farther held that the principle upon which he was then entitled to payment of his expenses was the same as that which entitled the ministers to immediate enjoyment of their augmented stipend, and that the rule by which the expenses were to be divided among the heritors was the same as that whereby the augmented stipend was allocated—namely, the interim locality.

And consequently held that suspension of a threatened charge on a decree for expenses in name of the common agent was incompetent, any objection to his account common to all the heritors being disposable of at taxation of the account; and any objection to the scheme of division peculiar to individual heritors being necessarily dependent upon the questions raised under the interim scheme of locality.

Headnote:

This was an action of suspension at the instance of the Magistrates of Glasgow of a threatened charge under a decree for expenses, pronounced in favour of the respondent, as common agent, by the Teind Court on 10th June 1870 in the barony process of locality.

It appeared from the statements of parties that in the year 1864 a process of augmentation, modification, and locality had been raised by the ministers of the Barony Parish of Glasgow. Along with their summons the ministers lodged a rental of the parish in which the several rents of each heritor were distinguished. The total rental of the parish was stated therein at £1,224,032, 11s. lid. By interlocutor of the Court of Teinds, dated 21st December 1864, the whole heritors were held confessed upon the ministers' rental, except Mr Crawford of Milton, and a few others who combined with him in objecting to it on the ground that the building rental or yearly value, and not the agricultural or true teindable value, of their lands had been taken. A remit was made by the same interlocutor to the Lord Ordinary on Teinds to prepare the case. The ministers' rental, except in so far as modified by these objections, which were given effect to by the Lord Ordinary, became the proven rental. The total rental of the parish is stated in the scheme of the proven rental at £1,164,735, 5s. 11 1 2d., and the teind at £232,947, 1s. 2d. 3–10ths. This scheme was approved of by the Lord Ordinary on Teinds on 31st January 1866, and avizandum made with it to the Court. It was found, however, that the proven rental thus made up was altogether useless as a teindable rental, inasmuch as it was simply a copy of the valuation roll of the parish as well as of the burgh of Glasgow, which is not within it, and included an immense number of names of parties who were not liable in stipend, and had never paid any. The complainers, the Provost, Magistrates, and Town Council of Glasgow, are heritors in the parish, and neither they nor any of their co-heritors appeared to oppose the augmentation. On 31st January 1866 the Court of Teinds advised the scheme of the proven rental and the prepared state, and after hearing counsel for the ministers and for the Crown as titular, granted an augmentation of 12 chalders to each minister, to commence with crop and year 1864. A remit was at the same time made to the Lord Ordinary on Teinds to prepare localities. On 22d June 1866 the respondent, William Bremner Hay, who had been elected common
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agent, on a competition for the office, by a majority of the heritors according to the proven rental, was confirmed as such by the Lord Ordinary. On 29th June 1866 the heritors were ordained, for the second time, to produce their rights to teinds and valuations, but no rights or valuations were produced by any of the heritors. A remit was, on or about 26th June 1868, made by the Lord Ordinary to the teind clerk to prepare a locality, and, in obedience to this remit, he reported two localities for the first and second ministers respectively upon the 1st March 1870. These localities were, on 4th March 1870, approved of by the Lord Ordinary as interim localities on the motion of the common agent, and on 11th March they were allowed to be seen and objected to as final localities.

On the 10th June 1870 the respondent moved the Lord Ordinary for decree for his expenses as common agent, and of that date the pretended decree sought to be suspended was pronounced in absence. An extract of the decree was obtained by the respondent on 29th July following. By this decree their Lordships, as Commissioners of Teinds, ordained the whole heritors, &c., of the Barony Parish to make payment to the respondent of the sum of £1602, 18s. 9d., being the taxed amount of his expenses as common agent in the process of augmentation and locality up to the date of extracting the interim decree of locality, and that in proportion to their several teind rentals in process and scheme of division made up and certified by the clerk as relative thereto. No appearance was made for the complainers, or, in fact, for the other heritors when the motion for this decree was made, but they attended the auditor at the taxation, and the respondents' account was considerably modified in consequence of their objections. In the scheme of division, which was made up by the teind clerk in terms of the said decree, the whole teind of the parish was stated as being only £30,260, 19s. 6d. 38–60ths, in place of £232,947, 1s. 2 1 2d., as set forth in the proven rental. The teind of the complainers was therein stated at £3482, 10s. 9 3 4d., and a sum of £184, 9s. 5d. was allocated upon them as their proportion of the expenses of the locality. The complainers alleged that this scheme of division was grossly erroneous and disconform to the teind rentals of the several heritors in process; that it was without warrant in law or in the decree of 10th June 1870, and if adopted as the rule of division, would impose upon them far more than their fair share of the expenses of the interim locality; that it was never submitted to them or their agents, and they have had no opportunity of objecting to it up to the present time; and that it had never been submitted to or approved of by the Lord Ordinary on Teinds or by the Court of Teinds. The complainers farther objected that the expenses had been allocated not according to the proven rental, when their share would have been something like £12, instead of £184, but had been divided according to an interim scheme of locality, against which they alleged several informalities of procedure, and erroneous and improper conduct and gross neglect of duty on the part of the common agent.

They pleaded, inter alia—

“1. The threatened charge ought to be suspended as disconform to and unwarranted by the decree of 10th June 1870, on one or more of the following grounds:—(1) That the expenses have not been allocated amongst the whole heritors of the parish according to their teind rentals in process. (2) That the complainers have had allocated upon them a share of the expenses in excess of the proportion effeiring to their teind rental in process. (3) That no share of the expenses has been allocated upon a large number of heritors whose rentals are included in the scheme of the proven rental. (4) That the complainers have had allocated upon them a share of expenses as proprietors of lands, of which they are not proprietors, and for which they are not entered as proprietors in the proven rental.

2. The decree of 10th June 1870, and threatened charge, ought to be suspended, in respect that decree for expenses in favour of a common agent in a locality is competent only after a final locality has been made up.”

The respondent pleaded—“1. The decree sought to be suspended having been pronounced in the Court of Teinds, it is incompetent to suspend it in the Bill Chamber. 2. The said decree being in all respects in conformity with law and practice, as observed in teind cases, the suspension is incompetent and groundless, and should be refused.”

The Lord Ordinary on the Bills ( Mackenzie) passed the note upon consignation; and when the case came before him upon a closed record he pronounced the following interlocutor:—

“ Edinburgh, 3d February 1871.—The Lord Ordinary having heard the counsel for the parties, and considered the closed record, before answer allows the parties a proof of their respective averments, with the exception of their averments in regard to the practice of the Teind Court, and to the complainers a conjunct probation; and appoints the proof to be led before the Lord Ordinary on a day to be afterwards fixed.

Note.—Should it be found necessary, after the proof is led, to ascertain the practice of the Teind Court, as alleged in the record, a remit will be made for that purpose.”

Against this interlocutor the respondent reclaimed.

Millar, Q.C., and Burnet for him.

Shand and Mackay for the complainers.

Reference was made to Duke of Buccleuch, November 10, 1868, 6 Law Reporter, 88; M'Diarmid v. Earl of Moray and Others, March 5, 1862, 24 D. 715; M'Laren's Procedure Acts, p. 584–5; Connell on Tithes, 1, 543.

At advising—

Judgment:

The Lord President—I am not at all prepared to agree with the Lord Ordinary in the course which he has taken in allowing this proof. On the contrary, I am of opinion that there are no relevant grounds of suspension stated here, and that the reasons ought to be repelled, and the letters found orderly proceeded. The position of the common agent in the locality is, in many respects, a very peculiar one, and it became a position of still greater peculiarity in this locality by reason of the very extraordinary circumstances of the parish. We all know the wonderful extent and population of the Barony Parish of Glasgow, and the great difficulty that there must necessarily be in adjusting a locality of such a parish. The first cause of embarrassment apparently arose from the kind of rental upon which the ministers obtained their augmentation. I suppose they had no other means of making a rental, except just taking the valuation of the parish as they found it in the Valuation Roll, and leaving that to be rectified afterwards. If I recollect rightly, when this augmentation was

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awarded, special attention was called to that at the discussion, and if the Court had thought that it was possible for the ministers to produce a rental such as we usually have in a rural parish, we should not have proceeded to award the augmentation on the rental which they actually did produce. But when the case came before the Lord Ordinary with a view to the preparation of a locality, I am not surprised to find it stated by the common agent that it was found utterly impracticable to proceed on the footing of the rental at all, and that the first thing that required to be done was to ascertain which were the heritors that had teinds, and, with a view to the making of the interim scheme, which is the first thing to be done, and which required to be done with the utmost possible despatch, in order to give the ministers the benefit of their augmentation—with a view to making that interim scheme, the proven rental had to be very much altered, or rather given up altogether, as the foundation of the scheme, and materials other than the proven rental used with a view to that scheme. The consequence of that, I have not the least doubt, is, that the interim scheme may be open to a great many very serious objections. I think it is highly probable, and there is a well known form by which the heritors who find themselves aggrieved will get redress against the errors of that interim scheme. They will object to the interim scheme, and so far as I can see they can get full redress in that way. They seem to think, from some of the statements that have been made to-day, that the forms of process will not give them all the redress they require, and if that be so, let them resort to the remedy of reduction, if that be competent, and if it be necessary. But in the meantime the interim scheme, liable as it may be to multitudes of objections, and very serious objections, forms a rule for the payment of stipend, and upon that interim scheme the ministers of the Barony Parish must be at present receiving their stipend. In the meantime the common agent, doing the best he can for the heritors in these very embarrassing circumstances, necessarily incurs a very large amount of expenses, consisting to a very great extent of outlays, and that account has been duly taxed by the auditor, and the taxed amount of that account he seeks to get the payment of. Now it surely is not to be said that he is not to get payment merely because this happens to be a very embarrassing and also a very expensive litigation, and one in which, accordingly, the common agent's account is exceptionally large, and consists to an exceptional extent of outlays. Is that a reason for refusing him payment? That seems to be utterly absurd. Now, if he is not to get payment in the way in which the Lord Ordinary in the locality has given it, by a decree for payment, I don't know any other way in which he can get it at present. If he is not to get it in that way he must wait until a final decree is approved of. Now a final decree in this parish may not be approved of in the present generation, and therefore the common agent's grandchildren may be the first to receive payment of this account. That is an absurdity which it is quite impossible for the Court to listen to. If the common agent is to obtain payment of this account at all, he must obtain payment of it just upon the same footing as that upon which the ministers obtain payment of their stipend. The respective liabilities of the heritors in the meantime are fixed by the interim scheme of locality, and it seems to me that the reason, or the reasons, which are given in support of the ministers obtaining in the meantime full payment of their stipends—whatever may be the amount of injustice done as between particular heritors afterwards to be adjusted—applies with equal force to the payment of the common agent in the locality. He requires sustenance just as much as the ministers. He cannot carry on the process without money, and he cannot be expected to lie out of the money he has already expended for behoof of this large body of clients, constituting the whole heritors of this parish. And therefore it appears to me that until the interim scheme of locality is altered the common agent must continue to be paid his expenses by the heritors in proportion to their liabilities as ascertained by that interim scheme. If we were to hold anything else, and if we were to affirm this interlocutor of the Lord Ordinary allowing a proof of the averments on record, it is manifest that we should just in this process of suspension have discussed before us the whole objections to the interim scheme of locality. Now, anything more absurd in practice than that it would be difficult to conceive. All the different questions of teind law which are to be ultimately settled in that process of locality are by this indirect proceeding of a suspension of an interim decree for payment of expenses, to be transferred from the Teind Court to this Court, and disposed of here in the first place, and then, of course, afterwards disposed of in the Teind Court; for the disposal of them here in this suspension would not in the least degree settle the question as in the process of locality. They must be all discussed and settled thereafter again there. That is just one of the results of such a proceeding as the present, which among others goes to show the utter incompetency of what is proposed. In short, it appears to me that the plain and simple view of the matter is, what I have stated at the outset, that so long as this interim scheme of locality stands, it fixes the proportion of liability of the heritors, as heritors and parties in that process of locality, and until it is altered they must pay in terms of that scheme.

Lord Ardmillan—I think that a very simple principle, long recognised in the disposal of teind questions, sufficiently solves the question before us. These processes of locality are generally very long-lived, and the laws for the protection of the just rights of the minister always allow to the minister an immediate and indisputable claim to the stipend awarded, leaving the heritors to adjust their rights inter se in any way they may. That has always been held to be the law with regard to the minister. Now, I think, as his Lordship says, that the principle is the same with regard to the common agent. If there be any objection to the common agent's account—which is common to every heritor—if it be said that the common agent has charged £100 for what he should have charged only £20, and that that should not be paid to him at all, I think there may be something in such an objection. That is a question of audit, and it may be a question that the auditor would leave to the Court, but if the question is, whether one heritor or another shall pay most to the common agent, or how the relative obligations of the heritors to the common agent are to be adjusted inter se, that is not a matter which can at all justify the Court in allowing the common agent in the meantime to be deprived altogether of his remuneration, until after perhaps half a century of litigation, until all the questions among all the heritors in the Barony Parish of Glasgow are

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settled. If the common agent were left to get his remuneration at that period only, I don't believe that any of the heritors at present living would have to pay him anything at all.

Lords Deas and Kinloch concurred.

Solicitors: Agents for the Complainers— Messrs Campbell & Smith, S.S.C.

Agent for the Respondent— Party.

1871