Scottish Court of Session Decisions

This action was raised by John Duncan of Park-hill, in the county of Forfar, against Mrs Brown, widow of Alexander Brown, farmer, Sunnyside, Montrose, and Miss C. J. Mann, residing at Hillside in the same county. The facts of the case are summarised by the Lord Ordinary as follows:—“This action is brought by one of the heritors of the parish of Montrose against two of the other heritors, to recover a sum of £94,19s. 6d. which is said to be the amount due by the defenders to the pursuer in respect of over-payments of stipend. By an interim scheme, dated 20th June 1862, for allocating an augmentation awarded on 23d May 1859, a proportion of the augmentation amounting to 13 b. 1 f. 2 p. 2 3 8 1. of meal, the like amount of barley, and £4, 16s. in money, was allocated on the teinds of the pursuer's lands, which had previously paid no stipend; and the defenders' lands, which already paid of old stipend 2 bolls 3 firlots and half a lippy of meal, and 3 bolls 1 firlot and 1 1 4 lippy of barley, were burdened in addition with 2 firlots 3 pecks 3 3 8 lippies meal, the like amount of barley, and 5s. 3 1 2d. of the augmentation. The interim scheme was objected to by the Principal and Professors of St Mary's College, in so far as it allocated the teinds of the pursuer's lands for stipend, on the ground that these were college teinds; the objections were sustained; and by a scheme approved as a final scheme on 13th March 1874 the pursuer's teinds were exempted and a further burden was laid upon the defenders' teinds. It follows that if the rights of parties are still to be regulated by the last-mentioned scheme, the pursuer was an over-paying heritor, and the defenders were under-paying heritors for the period between 1859 and 1874, during which the stipend was paid in accordance with the scheme of 1862. But it appears that the amounts allocated on the defenders and certain other heritors by the final scheme of 1874, and also by two previous localities of stipend awarded in 1806 and 1822, were in excess of the true liability; and all these localities were accordingly set aside by decree of reduction, obtained on 8th December 1878, in an action at the instance of the heritors in question against the minister, titulars, and the remaining heritors of the parish. The ground of reduction was that the decrees of locality sought to be set aside were ‘erroneous’ and ultra vires, inasmuch as the lands of the defenders and other heritors

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pursuing the action were thereby localled upon for stipend in excess of the value of the teinds. It appears from the state of teinds that the defenders’ rental was stated for the purposes of the locality at £60, and consequently that the amount of the teind was taken to be £12, whereas they averred in the action of reduction that the true agricultural value of the lands did not exceed £15, 6s. 4d., and that the teind did not exceed one-fifth of that sum, or £3, 1s. 3d. At the date of the action the defenders’ teinds had not been valued. But the process was sisted to allow a valuation to be raised; and this having been done, the value of the defenders’ teinds was found to be precisely as they had alleged, £3, 1s. 3d., and the respective values of the teinds of the heritors complaining of the decrees of locality were in like manner found to be below the amounts on which these decrees had proceeded. The ground of reduction was thus established, and the Lord Ordinary accordingly gave decree in terms of the conclusions of the libel, but ordained the locality of 13th March 1874 to stand as an interim rule of payment to the minister until the pursuers should furnish him with a new decree of locality, and remitted to the clerk to prepare a locality accordingly. A rectified scheme was thereafter prepared, and by interlocutor of 14th March 1879 the Lord Ordinary ‘approved of the said scheme as a final locality of the said stipend, commencing with crop and year 1878 and in time coming.’ By the new scheme of locality thus approved of, the pursuer's lands areexempted from stipend, as they had already been by the locality of 1874. The defenders' teinds, on the other hand, were surrendered and exhausted. But the whole amount of the teind being less than the stipend previously localled upon them, the effect of the new locality, which now stands as the final and only susbsisting locality of the stipend, was to relieve them of a burden which the reduced decrees had erroneously laid, not only upon their teinds but upon their stock. The result is that it is now established by final decree of the Court of Teinds that during the period to which the present action relates—that is, from 1859 till 1874—the teinds of the pursuer's lands were wrongly allocated for stipend, these teinds being by law entitled to exemption so long as there were other teinds in the hands of the heritors which could be made available to the minister. On the other hand, it is established that the defenders during the period in question were not in the position of retaining teind which ought to have been burdened with stipend to the relief of the pursuer, because the locality which wrongly burdened the pursuer's teinds was likewise wrong in allocating not only the whole of the defenders’ teinds but also a portion of their stock.”

The pursuer pleaded—“(1) The final locality of 1874 is the rule of payment of the stipend of the minister of Montrose for crops 1859 to 1873 inclusive. (2) The heritors who over-paid under the interim locality of 1862 are entitled to rectification in terms of the final locality of 1874. (3) The pursuer having made payments to the minister in excess of the sums localled on him in the final locality, or justly due by him, is entitled to repayment of said excess from the underpaying heritors, and the sums sued for being the defenders' proportion of the pursuer's over-payments, the pursuer is entitled to decree in terms of the summons.”

The defenders pleaded—“(1) The rights and liabilities of over and under paying heritors being regulated by the final locality of 1879, the pursuer has no claim for over-payments against the defenders. (2) The locality of 1874 having been reduced and set aside, the claim of the pursuer is unfounded, and the defenders ought to be assoilzied. (3) The sums of principal and interest sued for not being due by the defenders, they should be assoilzied.”

The Lord Ordinary assoilzied the defenders.

Opinion—[ After the narrative above quoted].—In those circumstances the pursuer claims to be relieved by the defenders of the over-payments made by him under the interim scheme of 1862. I am of opinion that the claim is not well founded. The pursuer appeals in support of it to the well-established rule by which underpaying are held liable in repetition to overpaying heritors when the true scale of liability has been ascertained and determined by the adjustment of a final scheme of locality. But it is not, as I understand, maintained that this rule can be made available to the pursuer if the only subsisting locality, i.e., the final locality of 1879, is to be taken as fixing the extent of the defenders' liability. And indeed it is obvious that if that scheme is to be taken as regulating the adjustment of over and under payments the defenders cannot be in the position of underpaying heritors. For the final scheme establishes that under the previous interim scheme the defenders were not paying less but more than by law they were liable to pay. It is accordingly maintained that although the scheme of 1879 fixes the rule of payment from and after the date when it came into operation, the defenders' liability for the period prior to the reduction must still be measured by the scheme of 1874. But it appears to me that a scheme which the defenders have succeeded in reducing as erroneous cannot be appealed to as regulating their liability for any purpose whatever.

It seems to be clear that the pursuer cannot succeed unless he is entitled to found upon the scheme of 1874 as fixing the defenders' liability. The ground of the overpaying heritor's right to reimbursement has been stated in different ways. But in all the authorities the ultimate basis of the claim is assumed to be the payment by the overpaying of the underpaying heritor's debt. Thus it is stated by Lord Benholme in Haldane v. Ogilvy, 10 Macph. 62, that the claim is ‘strictly and simply a claim of debt—a claim for money advanced by the creditor for the debtor at a time when their respective pecuniary liabilities were misunderstood;' and in Mackenzie ( cheape's Factor) v. The Lord Advocate, 5 R. 589, the doctrine is thus explained by the Lord President —‘The claim of the minister for payment of his stipend is a claim which the law gives against the heritors of the parish—against the party who holds the land and who is answerable for the teind.… And in a case where the heritor has not paid his debt to the minister the claim subsists against him, and that claim is, according to the practice of the Teind Court and of this Court, held to be transferred to the overpaying heritor so as to prevent an unnecessary circuity of actions, and the overpaying heritor thus comes to be the creditor of the underpaying heritor.

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He comes, as it were, in place of the minister in making that demand.'

The pursuer therefore undertakes to prove that in the years 1859–73 the defenders were liable by law to pay a share of the stipend allocated upon him in addition to what they actually paid. But that cannot be established by the scheme of locality of 1874 either on the ground of its fixing the liabilities of the heritors by final decree, or on the ground of its affording evidence of the amount of the defenders' teinds. The scheme is of no force or value for either purpose, because it has been reduced as erroneous, and inconsistent with the rights of parties.

An argument was, however, maintained for the pursuer, which, although I have come to think it unsound, appeared to me very worthy of consideration. It is said that the defenders by their proceedings have deprived the pursuer of his remedy against those heritors who were actually underpaying during the period in question. It is said that if they had stated their objection in due time they would have obtained a final scheme, which would have conclusively established the liabilities of the heritors to the minister, and consequently their respective rights and liabilities inter se for the whole period during which the augmented stipend was payable. But the scheme which they have procured in the process of reduction commences only with crop and year of 1878, and therefore, it is said, cannot regulate the rights of parties for the period prior to 1878. It is argued therefore that if the pursuer were now to proceed against the underpaying heritors, he would have no final scheme to appeal to as showing by whom the excess of stipend wrongly laid upon him ought in fact to have been borne; and it is said that the defenders have thus deprived him of his remedy against the other heritors, and must therefore be content to bear the liability which would otherwise have attached to the true underpayers. I express no opinion as to the liability of heritors who are not parties to this process. But as against the present defenders I think the argument fails. The decree ordaining a new locality to commence as from 1878 decides nothing as to the adjustment of over and under payments. It fixes only that the new locality shall be operative as a rule of payment to the minister as from that date. It may or may not be that payments made under the scheme of 1874 are to be taken as well made. But what the pursuer has to maintain is, not that payments already made shall stand, but that the scheme of 1874 must be accepted as the standard for correcting the erroneous payments made under the scheme of 1862. Now, if that contention is rested, not on the merits of the scheme itself, but on the proceedings of the defenders, it resolves into a plea of bar by conduct. The question therefore is, whether the defenders are barred by their conduct from disputing the accuracy of the scheme of 1874? and I think that question is necessarily decided in their favour by reason of their having already obtained a decree of reduction. The pursuer's argument comes to this, that as between him and the defenders the scheme of 1874 must still remain effectual, because if it were set aside he could not be restored to the position in which he stood before it was approved of as a final scheme. But if that contention were well founded it would have afforded a good defence to the action of reduction. After decree of reduction has been pronounced I cannot hold that the defenders are barred from founding upon it by reason of any difficulty in giving complete restoration to another heritor who was called as party to the action, and the plea that the defenders are barred from maintaining the invalidity of the scheme which has been reduced is, in other words, a plea that they are barred from founding upon the decree of reduction which they have obtained.

The result is that I think the pursuer has failed to prove his case, and the defenders must therefore be assoilzied with expenses.”

The pursuer reclaimed, and argued—The pursuer was undoubtedly entitled in 1874 to repayment of these sums, and in spite of what has followed he must still have a remedy, and the only persons against whom he can have it is the defenders, as underpaying heritors then. It is their fault if they have let the true debtor escape. The main question is as to the effect of the decree of reduction and final locality of 1879. In 1874 the defenders would have had no answer to pursuer's action; had they any now in virtue of that decree? Had they paid it to the pursuer then, it would have been impossible for them to recover it, for then he would have held it under a final decree of locality, and it is settled that you cannot go back by way of condictio indebiti on a final decree of locality. Mere words of style in a decree of reduction must not be read too literally, but with reference to the operative conclusions of the summons. The reduction is only a reduction so far as necessary to set up the new locality. It is certain that a reduction of a decree of final locality can never operate retro to the effect of setting up claims adverse to the new final locality. Here it is said to operate retro negatively to extinguish claims. The former practice was that the decree of reduction contained at the same time a new locality. It was a modern innovation to separate the decree of reduction and the locality. The only difference is that now we have two interlocutors instead of one; the effect of the whole is the same as formerly. The Teind Court had no jurisdiction to force repetition of overpayments like those here, and the pursuer was thus compelled to come to the Court of Session.

Authorities— Cuthbert v. Waldie, Jan. 24, 1840, 2 D. 447; Mags. of Montrose v. King's Coll. of Aberdeen, hoc cit.; Weatherstone v. M. of. Tweeddale, Nov. 12, 1833, 12 S. 1; Chisholm-Batten v. Cameron, Jan. 16, 1873, 11 Macph. 292; Lawson v. Lindsay, Shaw's Teind Cases, 32; Maxwell v. Jardine, ib., 143; Juridical Styles, 2d ed., iii. 518.

Argued for defenders—This case differs from all previous cases in the fact that while the pursuer has admittedly paid more than he owed, he cannot show that the defenders, from whom he seeks to recover it, have paid less than they should. The scheme of 1874 was absolutely reduced and set aside by the decree of 1879, which can have no other meaning. That scheme was set aside because it did the defenders injustice. To revive it now to the effect contended for by the pursuer would be to do them injustice again. The pursuer's remedy was to have objected in the action of reduction; he failed to do this, and his remedy is gone. In any view, he was not suing the proper debtor. It is true the Teind Court cannot

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reduce to the effect of affecting the interests of the heritors inter se, but it may correct by way of re-allocation.

Authorities— Campbell's Trustees v. Sinclair, April 15, 1878, 5 R. (H. L.) 119; E. of Moray v. Inglis, Nov. 12, 1836, 15 S. 2.

At advising—