Scottish Court of Session Decisions

This was a suspension of a threatened charge upon an interim decree of locality. The suspenders were the trustees of the late John M'Neill of Ardnacross, and the respondent the Rev. Colin Campbell, minister of the united parishes of Kilninver and Kilmelford. The ground of suspension was that the stipend which the suspenders had been called upon to pay greatly exceeded the true amount of their teind, as determined by a valuation of the Sub-Commissioners in 1629. The suspenders averred that decree of approbation of the said sub-valuation had been obtained by other heritors in so far as it referred to their lands. In 1866 the suspenders raised an action of approbation of the said sub-valuation, and obtained decree in absence. An error in the summons was afterwards discovered,

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which rendered the decree disconform to the grounds on which it proceeded. The suspenders have consequently themselves raised an action for reduction of the said erroneous decree of approbation, and of new for approbation of the sub-valuation. The summons was executed shortly before the present note of suspension was presented.

The suspenders offered to consign the sum for which they were charged, and to find caution for expenses.

The Lord Ordinary on the Bills ( Mure), on 6th April 1872, refused the note, with expenses.

“ Note.—This is a suspension of a threatened charge upon a decree of interim locality, and proceeds upon the assumption that the complainers are possessed of a valuation of their teinds which has been disregarded in the preparation of the interim scheme; that they have in consequence been called upon to pay more than the true value of their teind; and that the decree is therefore to that extent invalid and inept, as involving an encroachment upon stock.

The application is mainly rested upon the cases of M'Cartney, March 4, 1817, and Oswald, Nov. 21, 1835, in both of which suspensions of charges proceeding upon decrees of interim locality were sustained, notwithstanding the provision of the 5th section of the Act of Sederunt 1809. But these cases differed, in the opinion of the Lord Ordinary, in several material respects from the present. For in both of them there were decrees of approbation of the sub-valuation, which showed distinctly that the stipend which had been allocated exceeded the valued teind; while in the present case there is as yet no available approbation of the sub-valuation, for the complainers are only in the course of endeavouring to obtain one. In the case of M'Cartney, the decree, although produced with the heritors' rights, in terms of the Act of Sederunt 1809, but disregarded in preparing the interim scheme, had been given effect to in a final locality, in which the error made in the interim scheme had been corrected,—notwithstanding which, the minister, though aware of the correction, insisted upon charging upon the interim decree; and it was upon this ground mainly that the judgment in that case proceeded. In the case of Oswald, again, the minister was admittedly insolvent; and it was also taken as an admitted fact, in disposing of the case, that all the other teinds in the parish were exhausted; so that, in the event of the sum charged for being erroneously paid, no relief of overpayments could be got either from the heritors or minister. But here, on the other hand, there is no imputation against the solvency of the respondent; and parties are directly at issue as to whether the teinds of the other heritors are exhausted.

In neither of these cases, moreover, does it appear that any payment of stipend had been made under the alleged erroneous interim scheme, while here payment has been made under the interim scheme for four years without objection, and without any attempt having been made to have the scheme rectified under the provisions of the Act of Sederunt of 20th June 1838; which provisions appear to the Lord Ordinary to be almost of themselves sufficient to take this case out of the rule applied in the cases of Oswald and of M'Cartney, because, at the time those cases were decided, it was not competent to obtain a rectification of an interim scheme in the manner provided by sec. 2 of the Act of Sederunt 1838.

The 4th section of this Act of Sederent, no doubt, contemplates that a suspension may be brought after interim decree, with a view to a surrender of teinds. But this must, as the Lord Ordinary conceives, be intended to meet cases where the party bringing the suspension may have only very recently acquired materials to enable him to apply for a rectification of the interim scheme, or may not have had an opportunity of surrendering in the locality; and not such a case as the present, where the complainers have for some time been in possession of the materials on which the surrender is proposed to be made, and have been endeavouring to effect a surrender in the process of locality, but have hitherto failed in succeeding to satisfy the Lord Ordinary in that cause that they are in a position to do so.

In these circumstances, it appears to the Lord Ordinary that, were he to pass the note with a view to a surrender, he would in effect be reviewing the judgment of Lord Gifford, refusing to allow the complainers to surrender on their alleged valuation; while he would at the same time be sustaining the competency of stopping payment of a charge upon an interim decree of locality in a case where the party is not in possession of a valid operative decree of valuation, but is merely in the course of endeavouring to obtain one, and which, having regard to the terms of the Acts of Sederunt of 1809 and 1838, he does not consider he would be warranted in doing.”

The suspenders reclaimed.

G. H. Pattison and Watson for them.

Millar, Q.C., and Duncan, for the respondent, were not called upon.

At advising—