Scottish Court of Session Decisions

This was a question between Miss Margaret Turnbull Robertson of Dalladies, and David Flett, writer in Edinburgh, her curator bonis, and Mr Macknight, W.S., the Common-Agent in the locality of Fettercairn. Miss Robertson was heritable proprietor of the lands and teinds of Dalladies, in the parish of Fettercairn, and county of Kincardine. The teinds of said lands were valued, by decree of valuation dated 4th July 1810, at two firlots one peck two lippies and two-fifths of a lippy oatmeal, three pecks and four-fifths of a lippy bear, with £16, 16s. & 1 12d. money sterling. In the two processes of locality of stipend which immediately preceded the one in which this question arose, more than the just proportion of the respective augmentations of stipend was laid upon the teinds of Dalladies. The condeseenders therefore craved that the teinds of said lands should be so localled on as that the whole stipend payable from said teinds for the future should be in the proportion which said teinds bore to the teinds of the other heritors in the said parish who had heritable rights to their teinds; and that such amount of augmentation, and no more, should be laid upon said teinds of Dalladies as would, when added to the old stipend, make the whole stipend payable therefrom amount to the said proportion.

The Common-Agent admitted the accuracy of the facts stated by the condescenders, but contended. that as the previous localities were now final, the stipend thereby localled upon the lands of Dalladies must continue to be paid, irrespective of the augmentation in course of being localled, until the said localities were set aside by an action of reduction at the instance of the objectors.

The Lord Ordinary pronounced the following interlocutor and subjoined Note:—

“ Edinburgh, 11 th December 1872.—The Lord Ordinary having heard parties' procurators on the closed record between Miss Robertson and her curator bonis and the Common-Agent, and having considered the closed record, writs founded on, and whole process,—Finds that in localling the augmentation recently awarded effect must be given to the decree of valuation produced and founded on by the objectors: Finds that the old localities, which are final and unreduced, cannot be interfered with or altered in the present process until and unless the said final localities are reduced and set aside; but finds that, in localling the augmentation, regard must be had not only to the decree of valuation, but to the amount of old stipend localled on the objector's teinds; and finds that the proportion of the augmented stipend to be localled on the objector's teinds must be such as, taken along with the old stipend payable by her, does not exceed the fair proportion corresponding to the amount of her valued teind, and so as to give the objector relief against any over-allocation, so far as can be done without interfering with the final localities; and to this effect sustains the objection of Miss Margaret Turnbull Robertson and her curator, and decerns: Finds the Common-Agent liable in expenses, and remits the account thereof, when lodged, to the Auditor of Court to tax the same and to report.

Note.—This is a curious question, and does not seem to be decided in any recorded case. At least, the Lord Ordinary has not been referred to any decision, or even to any dictum or authority whatever.

In the absence of authority, the Lord Ordinary thinks himself entitled to proceed on equitable principle, and to give the objector the relief she seeks, if it can be done without transgressing any fixed rule.

The objector's teinds are valued. In the former localities, however, she or her predecessors did not produce the decree of valuation, and the consequence was that her teinds were localled on for a larger sum than they would have been if she had produced her decree of valuation.

The localities became final, and the objector has paid under them without complaint, and she is still willing to do so. She explains that it is not worth her while to reduce them. The expense would exceed the benefit which she would obtain.

Then comes the augmentation. And in the new locality the objector produces her valuation, and says, ‘I pay too much already under the old locality; take that into view, and lay so much less augmentation upon me.’ This can be done easily, and at once; and, without disturbing the old and final locality, the objector can obtain relief in localling the augmented stipend.

There is strong equity in this; and, in the absence of any fixed rule to the contrary, the Lord Ordinary gives effect to the equitable plea. He understands there is no contrary practice; for although it is not uncommon to strike the free teind by deducting the old stipend, and allocate proportionally, this is done when no such specialty arises as in the present case. It is equally easy to take the gross teind and allocate proportionally thereon, and then make the old stipend part of the allocation. This would equitably provide for variations on the rental where teinds are unvalued and struck at one-fifth of the rent.”

The Common-Agent reclaimed.

At advising—