Scottish Court of Session Decisions

This was a case which arose in connection with the locality of the parish of Row. Sir James Colquhoun, Baronet of Luss, sought to surrender his teinds. The minister objected.

The following interlocutors were pronounced:—

“ Edinburgh, 4 th July 1871.—The Lord Ordinary having heard parties’ procurators, and having considered the condescendence and surrender for Sir James Colquhoun of Luss, Bart., and the answers thereto for the Reverend John Lawrie Fogo, minister of Row, Nos. 65 and 66 of process, with the old localities and proceedings—Finds that for a period greatly exceeding forty years the condescender, the said Sir James Colquhoun, and his predecessors and authors, have, under final decrees of locality, paid to the successive ministers of the parish of Row amounts of stipend considerably exceeding the amount of the value of the teinds contained in the decrees of valuation held by the said Sir James Colquhoun and his predecessors and authors, and now proposed to be surrendered: Finds, in point of law, that the minister of Row, for himself, and his successors in office, has by such prescriptive over-payments acquired a right to insist that said payments shall be continued, notwithstanding the decrees of valuation: Finds that the said Sir James Colquhoun is not entitled by surrendering his teinds to free himself from the obligation to continue to make the overpayments in the same way as has been done during the prescriptive period, and decerns: And before further answer, appoints the cause to be enrolled, with the view of ascertaining the precise amount of the prescriptive over-payments, reserving meantime all questions of expenses.

Note.—It was quite fairly and candidly admitted by the counsel for Sir James Colquhoun that his object in insisting in a surrender in terms of his condescendence and surrender, No. 65 of process, was to free himself in future from all over-payments of stipend, and that notwithstanding that such over-payments had been made under final decrees of locality for a period greatly exceeding forty years.

It was not disputed that such over-payments had been made for more than forty years, although their precise amount was disputed, and thus the question of law was fairly raised, Whether Sir James Colquhoun, by now surrendering the exact amount of his valuations, can now get rid of such over-payments in all time coming.

There was a subordinate question, Whether, even supposing that the over-payments are still to continue, Sir James Colquhoun may still, notwithstanding, surrender his valued teind, subject to the continuance of the over-payments. This question, however, is of little importance, being rather a question of form than of substance, and at most only affecting Sir James’ liability for a share of the expenses of future localities.

The Lord Ordinary is of opinion that, by reason of the prescriptive over-payments under final decrees of locality, the minister has acquired a right thereto, and that the heritor is not entitled to shake himself free of his liability by surrendering the mere amount of his valued teind. The Lord Ordinary has thought it better to decide this important point of law by substantive findings, rather than by sustaining the surrender under a

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declaration or qualification. This course is the more expedient, as the exact amount of the prescriptive overpayments is in dispute.

It is now finally fixed that a decree of valuation of the High Court cannot be derelinquished even by prescriptive overpayment, but the precise effect of such over-payments has perhaps not been fully determined by the decided cases. The leading cases are:— Locality of Fearn ( Munro), 21st Nov. 1810. F.C. 38; Maxwell v. Blair (Eastwood Locality) 3d July 1816, F. C. 182; Locality of Maderty ( Moray), 9th July 1817, F.C., 371. Reference may also be made, as bearing upon the question of surrender, to Connel i. 521, and sub, and cases quoted, Buchanan on Teinds, p. 216 and sub; Locality of Lamington, 24th May 1798, F. C.; Tawse v. Earl of Glasgow ( Locality Paisley), 20th June 1821, Shaw, T. Cases, 8; Cuthbert v. Waldie, ( Ednam Parish), 24th Nov. 1824, Shaw, T. C. 75; Baird v. Minister of Polmont, 3d July 1832, 10 Shaw, 752; Richmond v. Common Agent in Orwell, 8th March 1866, 4 M. 554.

It appears to the Lord Ordinary to be finally decided by the case of Maderty, above cited, that a minister may acquire a right to overpayments by prescription, notwithstanding a High Court decree of valuation. This case was very fully argued and decided upon informations to the Court, and it seems to determine the substantial question raised in the present case. The Lord Ordinary feels himself bound by this decision, which he does not think is inconsistent with the previous cases of Fearn and Maxwell, and which he cannot hold to be over-ruled by the case of Baird v. Minister of Polmont. No doubt, in this last case Lord Moncreiff remarks upon the case of Maderty as a special case, and the ground of the decision in Polmont case was that the decree of locality on which the alleged over-payments proceeded had been tempestive reduced, so that the over-payments were really without a title.

In the present case the old decrees of locality, in virtue of which the prescriptive payments have been made, have never been reduced, and it is impossible to reduce them, because they are long ago protected by prescription. It is vain to say, as was ingeniously urged by the counsel for Sir James Colquhoun, that every new augmentation operates eo ipso as a decree of reduction of all the old localities, however long they may have stood, or although they have been pronounced in litigated causes. This is not so. The old localities and res judicatæ therein are all final, either as res judicatæ, or as decrees unchangeable after the prescriptive period, and all that can be settled in such augmentation is how the augmentation is to be localled, otherwise there would be no finality at all in teind causes. It is quite fixed that judgments in one locality are final in all subsequent ones, and there is no different rule for decrees protected by prescription.

The minister's right to prescriptive over payment seems also to rest on sound reason. His title to the benefice, and his decree in the locality, constitute a good title on which to found prescription, and where the heritor under such a title pays the amount decerned for for forty years without challenge, there seems no ground for allowing him after that to open it up. He is barred, both by the positive prescription in respect of possession by the minister, and by the negative prescription, which cuts off the heritor's right to challenge the old decree. The decree of valuation will protect the heritor from all future augmentations, for it has not been derelinquished; but it will not protect him from the law of prescription, which prevents him from challenging a decree which he has implemented without objection for more than forty years.

As to the subordinate question, or question of form, the Lord Ordinary is inclined to think that, notwithstanding the prescriptive over-payment, the heritor may still surrender, provided it is made clear that, besides the surrendered teind. the heritor is still to pay the fixed and prescriptive over-payment. In this way the Lord Ordinary reconciles the cases of Fearn and Maxwell with that of Maderty, but the over-payments must be fixed, and with this view the Lord Ordinary has appointed the case to be enrolled.

The Lord Ordinary was referred to an unreported decision of Lord Barcaple in the case of Auchterlony, 22d December 1866, which was acquiesced in, and in which Lord Barcaple refused to sustain a surrender where there had been over-payments. In that case, however, it was only a portion of the valued teind which was proposed to be surrendered, and there had been no apportionment fixing its amount. This by itself would support Lord Barcaple's judgment, and his Note shows that it was rather the form of the surrender than its substance which was considered objectionable.

Surrenders were introduced by the Court in the case of Lamington, see Connell, i., 521. Their primary object was to save heritors from over-payments in a new locality by reason of increased value of victual, when the valuation of the teinds was in money. Their practical effect was to save the heritor, whose payment was fixed and unalterable, from taking part in localities, and from the expenses of a process in which he had no interest. If, in the present case, Sir James’ constant payment is fixed and unalterable, there seems nothing in principle to prevent him from giving up that payment so as to save him from the trouble and expense of taking part in future processes of locality.”

Edinburgh, 24 th July 1872—The Lord Ordinary having heard parties’ procurators on the condescendence and surrender by Sir James Colquhoun, and answers there to for the minister, with special reference to the teinds of the lands of Kilbrides; Finds that the sub-valuation of the teinds of the lands of Kilbrides, dated 7th January 1629. approved of by final decrees of approbation dated 20th February 1793 and 10th March 1813, must be held to apply only to the teinds of the lands of Easter Kilbride and to the teinds of the lands of Wester Kilbride, and not to the teinds of the lands of Middle Kilbride: Finds that the teinds of the lands of Middle Kilbride have been separately valued by decree of valuation dated 3d June 1870. Finds that the amount of the valued teinds of Easter Kilbride and of Wester Kilbride, as contained in the said sub-valuation and decrees of approbation, has always been paid by the proprietors of these lands to the minister of Cardross, under the original arrangement, when the present parish of Row was disjoined therefrom: Finds that, in considering and fixing the over-payments to which the minister of Row is entitled by reason of prescriptive possession thereof, the payments of the valued teind to the minister of Cardross must be held to have been solely in respect of the lands of Easter Kilbride and Wester Kilbride, to the teinds of which lands alone the final decrees of approbation

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apply; and finds that all sums paid to the minister of Row for the full prescriptive period, in respect of the lands of Easter Kilbride, Wester Kilbride, or Middle Kilbride, must be held to be over-payments over and above the valued teinds of Easter Kilbride and Wester Kilbride; and finds that the said payments made to the minister of Row for the full prescriptive period must continue to be paid without deducting therefrom any part of the valued teind paid during the same period to the minister of Cardross; and, with these findings, appoints the case to be enrolled, that the amount of the prescriptive over-payments may be fixed and adjusted, reserving all questions of expenses.

Note.—The condescendence and surrender by Sir James Colquhoun of Luss, Bart., and the answers thereto for the minister of Row, raise a great many questions of much difficulty, both in point of principle and in matters of detail.

The Lord Ordinary, by his interlocutor of 4th July 1871, disposed of the chief question of principle as to which the parties were at issue. He found that an heritor who, notwithstanding old decrees of valuation, has for forty years and upwards, under final localities, paid more than the amount of the valued teind, is bound to continue such over-payments, although the decrees of valuation are not thereby derelinquished, and that such heritor cannot get quit of such over-payments merely by surrendering his valued teind, This judgment has in the meanwhile been acquiesced in, and parties were further heard upon the questions of detail as to what the amounts of the prescriptive over-payments really were.

There are a great many lands, and the facts as to some of them are rather intricate, but ultimately both parties explained to the Lord Ordinary that they thought they could adjust all mere questions of amount, excepting as to the lands of Kilbrides, of which there are three parcels, Easter Kilbride. Wester Kilbride, and Middle Kilbride. The ascertainment of the amount of over-payments for these lands depends upon questions of principle, which were argued before the Lord Ordinary, and he has now endeavoured to dispose thereof.

The question chiefly turns upon the effect of the old sub-valuation of 1629, as explained or affected by the two decrees of approbation thereof of 1793 and 1813. It may be quite true that the sub-valuation of 1629 was originally intended to apply to the whole three Kilbrides, and not merely to two of them. The Lord Ordinary is of opinion, however, that it is too late now to maintain this, but that it is finally fixed by the two decrees of approbation of 1793 and 1813, both of which are now unchangeable, and that the old sub-valuation only applies to Easter and Wester Kilbride, and thus leaves the teinds of Middle Kilbride unvalued. This conclusion is confirmed, if confirmation were necessary, by the fact that in 1870 Sir James Colquhoun led before the High Court a new and independent valuation of the teinds of Middle Kilbride.

The incidence and application of the different valuations being thus fixed, the next question is, From the teinds of what lands was stipend paid to the minister of Cardross? Now the stipend paid to the minister of Cardross for more than a century is the exact amount, even to a fraction, of the valued teind contained in the sub-valuation and two decrees of approbation. The Lord Ordinary thinks that the inference is irresistible, that it was the valued teinds of the lands of Easter and Wester Kilbrides that have always been paid, and are now payable to the minister of Cardross. It would be a very forced and violent conclusion to hold that although the exact valuation is paid, it is not paid in respect of the teinds valued, but in respect of certain other teinds which are not valued. Possibly this might be made out by evidence, but certainly there is every presumption against it, and not a particle of evidence was adduced or referred to by Sir James. The Lord Ordinary was not asked to grant any proof, and indeed proof could hardly he otherwise than by documents, and the parties had none to produce. Viewing the matter as one of presumption, the Lord Ordinary can come to no other conclusion than that the valued teind paid in Cardross was the valued teind of Easter and Wester Kilbrides, and that no part of it was the unvalued teind of Middle Kilbride.

It follows that all the prescriptive payments made in Row in respect of Easter and Wester Kilbride, are over-payments which must continue to be made to the exact amount fixed by prescription.

“In this view there is no question about Middle Kilbride. The teind thereof is fixed by the valuation of 1870, and the whole amount of that valuation is now to be unconditionally surrendered, but no deduction can be made therefrom in respect of the payments made in Cardross, for these payments were made, not for Middle Kilbride at all, but for Easter and Wester Kilbride alone.

In like manner, the exact over-payments for Easter and Wester Kilbride must be fixed upon the evidence, and, as prescriptive over-payments, must continue to be made notwithstanding the old valuations.

The Lord Ordinary trusts the parties will now by joint minute apply the above findings and exhaust the matters of detail connected with the surrender.”

19 th March 1873.—The Lord Ordinary having considered the condescendence and surrender for Sir James Colquhoun of Luss, Bart., and the answers thereto for the Reverend John Lawrie Fogo, and heard parties’ procurators—Sustains the surrender in so far as concerns the teinds, parsonage and vicarage, of the following lands, viz,—Faslane, Stronmallinoch, Letterowal, Letterowalmore, Stuckiedow, Auchingaich, Meikle Ballernick, Tombuy, Finnart, Portincaple, Feorlinebreck, Deorling, Malligs, Castle Kirkmichael, Stuck, Easter Ardencaple, Drumfad, Little Drumfad, Stronrattan, Little Ballernick, Auchenvennelmore, Ardencaple, East Kilbride, Laggarie, Ardenconnell, Letruelbeg, Stuckiehoich, Blairvattan, Blairvaddick, Wester Kilbride, Auchenvennelvoulin and Ballecknock, Blairvrion, Blairnairns, Middle Kilbride, or Ballemeanoch, and Gortan, amounting in whole to 115 bolls 2 firlots 1 peck 2 lippies and 13–15ths of a lippy of meal, at 9 stones per boll, 25 bolls 2 firlots 3 pecks 2 lippies and l-5th of a lippy bear, and £89, 18s. 2½d. sterling, under deduction of the teind or stipend of the said lands of Faslane, Auchengaich, Meikle Ballernick, Deorling, Meikle Drumfad, Little Drumfad, Stronerattan, Little Ballernick, Auchenvennelmore, Auchenvennelvoulin, and Ballieknock, Blairnairn, and Easter and Wester Kilbrides, payable to the minister of Cardross, and of the lands of Auchintaal, payable to the minister of Roseneath, amounting in whole to 72 bolls 2 pecks and 2 lippies of meal, and 3 bolls 1 firlot of bear, and £3, 7s. 2 8/12d

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sterling, leaving as the amount of the surrendered teinds 43 bolls 1 firlot 3 pecks and 13–15ths of a lippy of meal, 22 bolls 1 firlot 3 peeks 2 lippies and 1–5th of a lippy of bear, and £86, 10s. 11½d. sterling of money: Also sustains the surrender of the teinds of the said lands of Gairlochhead and Stucknaduff, but without prejudice in any respect to and under reservation of the prescriptive right of the minister of Row to a stipend of 6 bolls of meal and 5s. 1 6/12d. sterling of money out of Gairlochhead, and 5 bolls of meal and 7s. 5d. sterling out of Stucknaduff, which stipend is hereby reserved entire to him: Further, finds and declares that the surrender of the said teinds of Faslane, Deorling, East Kilbride, Wester Kilbride, Auchenvennelvoulin, and Ballecknock is not to prejudice or in any way affect the prescriptive right of the minister of Row to a stipend in excess of what is paid to the minister of Cardross, of 8s. 4d. sterling out of Fas-lane, 1 firlot of meal and 7s. 9 5/12d. out of Deorling, 3 firlots 3 pecks and 1 lippy and 4–5ths of a lippy of meal and 4s. 2d. sterling out of East Kilbride. 2 bolls 1 firlot and 1 lippy and 8s. 11 9/12d. sterling out of West Kilbride, amounting in all to 3 bolls 1 firlot 3 pecks 2 lippies and 4–5ths of a lippy of meal, whereof 1 boll 1 firlot 1 peck 2 lippies and 4–5ths of a lippy, at 8 stones per boll, the rest being 9 stones, and £1, 9s. 3 2/12d. sterling money: Remits to the clerk to prepare a rectified locality and state of arrears of stipend: Finds the minister entitled to expenses, subject to modification: Allows an account thereof to be given in, and remits the same when lodged to the auditor to tax and to report.”

Sir James Colquhoun reclaimed.

At advising—