Scottish Court of Session Decisions

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Cite as: [1878] ScotLR 15_412_1, [1878] SLR 15_412_1

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SCOTTISH_SLR_Court_of_Session

Page: 412↓

Court of Session Inner House First Division.

Tuesday, March 5. 1878.

[ Lord Rutherfurd Clark, Ordinary.

15 SLR 412_1

Montgomery (Common Agent in South Leith Locality)

v.

Smith Sligo's Trustees (Heritors).

Subject_1Teinds
Subject_2Process
Subject_3Locality
Subject_4Objection to locality being approved final.
Facts:

A rectified scheme of locality had formed the rule of payment for nearly three years, and was then approved final on the motion of one of the heritors. Against this interlocutor the common agent reclaimed, on the ground that it was his intention to allocate the stipend due from certain lands among some feuars who had acquired their rights since the date of the preparation of the interim scheme. The reclaiming note was refused.

Observations on delay in teind processes.

Headnote:

Page: 413↓

In this process the stipend was modified on 30th January 1867. A locality was prepared, and by interlocutor, dated 15th July 1875, a rectified locality was approved of as a second interim scheme of payment. In July 1877 the case was put to the roll by Smith Sligo's Trustees, who were heritors in the parish, to have the scheme approved final, and on that date the motion was allowed to drop, in respect that there was no appearance for the common agent. When the case appeared again on the motion roll in October following, the common agent resisted the motion, on the ground that it would be necessary to allocate the stipend due from certain lands in the parish among new feuars who had recently acquired rights. Nothing was done on that date, but on 8th February 1878 the Lord Ordinary pronounced an interlocutor approving of the scheme as a final locality.

The common agent reclaimed, and when the case came up in the Single Bills he stated, in answer to a motion by Smith Sligo's Trustees to refuse the reclaiming note, that he had had no other notice of the motion to the Lord Ordinary than the appearance of the case in the Teind Roll; that in consequence of the transference of certain lands in the parish to new feuars an adjustment of the share of stipend among these feus was necessary, and if it was not allowed the minister would be put to great inconvenience in collecting his stipend. What he now intended to ask was that the feuars should be held as cited, and a remit made to re-adjust the locality.

The respondents answered—If the giving off of feus was to be held a sufficient excuse for delaying the finality of a locality in such a parish as South Leith, a final locality would never be pronounced at all.

At advising—

Judgment:

Lord President—I am for refusing this note, and I hope our judgment in this matter will be taken as a precedent for avoiding delay in similar cases. If such a motion as this is to be entertained in consequence of every fresh feu that is given off from every estate in the parish, I cannot see how any locality in such a parish as South Leith is ever to come to an end, and I cannot see any object in keeping it open. It has been said that the minister will be prejudiced. I am quite unable to understand how that can be, and both the Lord Ordinary and the teind clerk, as I have learned, are equally unable to do so. As the minister has not come here, I cannot in these circumstances give any weight to such a suggestion. It is stated by the parties whom the reclaimer represents that they have no interest in the matter whatever, and the conclusion therefore seems to be that there is no party who has any interest whatever to keep this locality open any longer, and therefore I cannot justify the view of the common agent that it should be kept open.

Lord Deas and Lord Mure concurred.

Lord Shand—I am of the same opinion, and I may say that I very willingly take any opportunity of putting a stop to the grievous delays that are taking place in these localities. It may be a proper practice that when a locality is being kept open by some reason beyond the control of the common agent he should use the time thus occupied in redistributing the stipend among the feuars who have acquired their property in place of the one or more heritors who have sold it. But after a locality is ready to be closed I can see no reason to keep it open for the purpose of allocating the stipend among new feuars who are in a position to be brought in. A locality may be closed, and the very next day a feu may be given off which would alter the locality were it allowed to be opened up. In the case of such parishes as South Leith there never would be a final locality if we were to sustain a reclaiming note in circumstances such as the present.

The Court refused the reclaiming note.

Counsel:

Counsel for Common Agent (Reclaimer)— Kinnear. Agent— Party.

Counsel for Respondents— Thoms. Agents— Hill & Fergusson, W.S.
1878