Scottish Court of Session Decisions

This was an action for the recovery of certain over-payments of stipend, brought by Kenneth Mackenzie, C.A., judicial factor on the estate of the late Mr James Cheape of Strathtyrum and Balgone, in the parish of St Andrews. A process of augmentation had been raised in the parish in 1810, and another in 1830. In the first of these the pursuer's lands of Strathtyrum were localled on for stipend under the interim, but exempted under the final locality. The lands of Balgone were localled on in both processes by the interim localities, but finally they also were exempted.

The pursuer originally raised an action on 2d July 1870 against the Crown as titular of the teinds of the parish of St Andrews, in respect that it had received the benefit of these over-payments, having drawn the teinds primarily liable in stipend, and also, if it did not so draw the teinds, that it alone had the power of protecting the interests of all parties by drawing the surplus teinds during the dependence of the locality, and was not now entitled to throw the burden of proceeding against a multitude of small under-paying heritors upon the pursuer.

The Crown pleaded—“It is only against the under-paying heritors, and not against the Crown as titular, that the pursuer has any claim for repayment.” The pursuer then, by minute of date 13th July 1871, agreed to proceed against the principal under-paying heritors, and craved that the action against the Crown might be sisted hoc statu. He then raised an action on November 30, 1871, against the United College of St Salvator and St Leonard and the College of St Mary in St Andrews, as proprietors of the lands of the Priory Acres and other lands in the parish of St Andrews (1) for the sum said to be due by them down to 5th April 1865 (the date to which the states of the over and under-payments had been brought down) in respect of overpayments by Mr Cheape; and (2) for a sum said to be due in respect of an account due to the Teind Clerk for preparing these states. These lands had been originally exempted in the interim localities, but localled on in the final localities, in both the processes referred to above.

The Colleges pleaded, inter alia—“The defenders are entitled to absolvitor from the conclusions of the summons in so far as applicable to the teinds of the Priory or Prior's Acres, in respect that they have not received or intromitted with the teinds of these acres, the same having been drawn by the Crown as titular, or by its tacksman as aforesaid.”

These actions were conjoined, and the Lord Ordinary ( Mackenzie), on 21st June 1872, allowed the pursuer a proof. The Lord Advocate, for the Crown, reclaimed, and on 10 July 1872 the Court remitted to Roger Montgomerie, Esq., advocate, to inquire into the matters at issue and to report. On July 20, 1877, Mr Montgomerie, made his report.

If bore that the reporter was satisfied that the pursuer's authors had made over-payments of stipend. There had been produced to him, besides the processes of augmentation and locality, a document entitled “Statement showing the surplus teinds in the parish of St Andrews for last half of crop and year 1809, crop 1859 and intervening crops, and the amount of teinds received by the Crown for crops and years 1832–1859 and intervening years.”

The reporter, with regard to this document, said—“The statement is divided into three periods—the first from 1809 to 1825, during which the interim locality in the augmentation of 1809 was in force; the second from 1826 to 1829, during which the rectified interim locality in that augmentation was in force; and the third from 1830 to 1859, during which the interim localities in the augmentations of 1809 and 1830 were in force. The surplus teinds during each period are given, but it is only from the year 1834 onwards that the amount received by the Crown is given, and even in this period the sums set down as having been received are few and far between, and in no case are they in conformity with the sums set down as due. In most cases the sum received is smaller than that due, although in a few the sums received are in excess of those due. From 1809 to 1825 the surplus teind amounted to £12, 512, 19s. 2¾d.; from 1825–29 it amounted to £3972, 10s. 10d.; and from 1830–59 it amounted to £19, 823, 19s. 6½d.; whilst during the last period the statement shows that the Crown received £3855, 6s. 4½d.

In the ‘statement’ the teinds of the Prior's acres are said to have been ‘let on tack to the University of St Andrews from 1763 to 1838, at a rent of £53, 15s. 6d. per acre. In 1839 the tack was put an end to. Mr David Berwick held a sub-tack from the University, and insisted on retaining possession for some years. After a litigation there was received from him a sum of £213, 1s. 5d. In 1842 the Crown took the management of the teinds of the Priory Acres into its own hands, and collected the same from the various heritors.’ A statement of the sums received and the stipends paid by the Crown in respect of the teinds of the Priory Acres, which is subjoined in the ‘statement, ’

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shows that since 1834 the Crown, after deducting payments, has a balance in its favour from the teinds of the Priory Acres of £939, 14s. 8d., which is included in the sum said to have been received by the Crown from 1830 to 1859. Except as regards the tack-duty from these Priory Acres, this statement does not give any information as to the receipts of the Crown prior to 1834.”

He further added—“In regard to the action against the Colleges, it has been urged upon the reporter that the Colleges have never touched the teinds from these lands, that every penny was paid either to the tacksman or the Crown receiver, and this is consistent with the statement produced by the Crown, so far as it goes, and with the presumption that the tacksman would uplift all the teind due. It is clear that the Colleges were under-paying heritors, and the benefit of these under-payments must have accrued to the titular or his. tacksman. The two Colleges and the University are separate corporations, so that the fact of the University having held from the Crown a tack of the teinds of lands belonging to the Colleges during the time in which the under-payments of stipend took place in no way affects the present case.

The reporter in conclusion reports that the lands held by the United Colleges consisted partly of Prior's Acres, the teinds of which were set in tack by the Crown, and partly of other lands, the surplus teinds of which must be assumed to have been uplifted by the Crown receiver, as no books or accounts showing what was actually received have been produced, and no account of the receiver's intromissions have been given notwithstanding repeated calls for such books and accounts.

That the lands held by St Mary's College consisted of Prior's Acres, the teinds of which were set in tack by the Crown to the University.

If the reporter is right in assuming that the Crownas titular must be held to have uplifted all the surplus teinds in the case of the College lands, in respect of the non-production of books and accounts, the same assumption will apply to the case of all other lands in the parish of which they are entitled to uplift the teinds.”

When the case came again before the Court the Crown argued—A claim of this kind had never been made against a titular. The proper defender was the under-paying heritor, for the titular was not debtor to the minister, and could not therefore be called to account by one claiming in the minister's right, which was the position of the over-paying heritor. But there was no evidence that the Crown had received the surplus teinds. The payments made had been made in rental bolls, the principle of which payment was that they were held equivalent to the full teind—Erskine, ii. 10, 25. The surplus teind had all been drawn by the heritors, and recourse must be had against them. It would be seen from the case of The University of St Andrews v. The Crown, July 10, 1838, 16 S. 1350, that the principle of the tacks given by the Crown as titular in St Andrews was to throw all liability for stipend on the tacksman.

The pursuer argued—It might be that there was no instance of such a claim against a titular, but it was a principle of law that the true debtor was the teind, and all intromittors therewith were liable—Connell ii., 459. The heritor was merely the hand by which the titular paid to the minister. The minister was, so to say, the assignee of the titular's debt. The titular, therefore, was in titulo to receive the whole surplus teind, and there was a presumption that he did so. If he did so, he was clearly liable to the overpaying heritor. All that was contended for by the Crown in the case referred to by the pursuer, and all that was established there, was, that free teind must be localled on before rental bolls; there was no decision of any question between the titular and his tacksman in general.

The Colleges argued, with the pursuer, that the titular was liable. The Colleges were not lucratæ, so that there was no equitable claim against them; for they had paid in tack-duty or rental bolls all the value of their teinds to the Crown. Rental bolls had this peculiarity, that they were what the titular agreed to accept as full value for the teinds due to him. The Court could not now go back on that bargain and try to ascertain what the value of that teind was.

At advising—