Scottish Court of Session Decisions

In the year 1813 a summons of augmentation, modification, and locality was raised at the instance of the minister of Bonhill, in the Presbytery of Dumbarton, against the heritors, and on 26th January 1814 the stipend was modified at 15 chalders, with £8, 6s. 8d. for communion elements, which was stated in the interim scheme of locality to be equal in all to £375, 5s. 10 1 2d. The scheme of locality in force at the date of this case was made and approved interim by the Lord Ordinary on 2d June 1827, and showed a deficiency of teind amounting to about £75, 16s. 3 4 10 l., as compared with the modified stipend. According to this interim locality, teind to the amount of 1 boll of meal, 6 bolls of bear, and £6, 1s. 2d. of money (equivalent in all to £7, 9s. 2d.), was paid by the lands of Stonefield, Stonefield's part of Napierston, and Balloch, contained in the interim locality, to the parish of Kilmaronock, and teind to the amount of 38 bolls 2 f. 2 p. 3 1 2 lips. of meal, and 6 bolls of bear, and £1, 8s. 4d. of money (equivalent in all to £85, 10s. 4 1 2d.) was paid by the lands of Auchindennan, Auchindennan Dennistoun, Stockrogart, and Cameron, also entered in the said locality, to the parish of Luss. Objections were now lodged by the Rev. William Simpson, present minister of the parish of Bonhill, to this interim scheme of locality, which raised two questions—1st, Whether the objector, the minister of Bonhill, was entitled to teind from the above-mentioned lands which were originally situated in the parishes of Kilmaronock and Luss respectively, but now formed part of the parish of Bonhill, in virtue of a decree of disjunction and annexation of the High Commission? and 2d, Whether the teinds of certain lands known as Haldane's Farm, and situated in or about the centre of the annexed lands, were valued or not?

The decree of disjunction and annexation of the lands in the parish of Luss, which it was shown must have been in the year 1648, had been lost, but a copy of the decreet of disjunction, annexation, and locality of the lands in the parish of Kilmaronock was extant. This was proved to be a genuine copy, having been annexed to the memorial for Mr William Stewart, minister of Bonhill, in a process of augmentation of Bonhill in 1793, which is referred to in the interlocutor of the Teind Court of 2d December 1794, quoted infra. It commences with the tenor of the summons—“At Edinburgh the 23d day of Jaxsnuary 1650 years, anent the summons raised before the Lords Commissioners for plantation of kirks and valuation of teinds, at the instance of Mr William Stewart, minister of Bonhill, within the presbyterie of Dumbarton, against the heritors of the lands in Luss and Kilmaronock to be disjoined, and against Mr Archibald M'Lachlane, parson of Luss, and Mr Stirling, minister at Kilmaronock;” and proceeds on a narrative of the Act 1641:—“That where by ane late Act of Parliament, holden at Edinburgh in anno 1641 years, his Majesty and the Estates having granted power and commission to the Lords and other Commissioners for valuation of teinds to value and cause value the teinds, personage and vicarage, of whatsomeever lands within this kingdom whilks as are yet unvalued, and to modify, set down, and appoint to each minister ane constant and local stipend, as likewise to disjoin and seperate too large and spacious parochins and plant them severally, and to disjoin and dismember such parts and portions of parochins lyand contigue, and whereof any part is far distant fra the proper paroch kirk and mair near to the next adjacent paroch kirk fra their own proper paroch kirk fra the whilks they lay far distant, and to unite and adjoin them to the other parish kirk, and that upon special recommendation of the Presbytery Synod or General Assembly to the saids Commissioners for that effect, as the said Act of Parliament more fully bears. And seeing that the teinds, personage and vicarage, of the said paroch of Bonhill are not valued as yet, and although the said teinds were valued yet nevertheless the samin are not sufficient for making up of ane competend stipend to the said minister and his successors furth thereof, there being but ane small quantity of teinds within the said parochin, and seeing the town of Dumbarton has twelve boll of teinds as yet furth of the said paroch, and furth of the lands of Noblestoun, Naperston, and Hil-town, it is necessary the same be assigned to the minister as ane part of his stipend. Necessary therefore it is and expedient that ane just valuation be made of the teinds of the hale lands within the said parochin, and for the better provision of the said kirk with ane competent stipend, that the lands after mentioned lyand within the parochins respective underwritten, pertaining to the persons after nominate, lyand far distant fra their paroch kirks and more near and awest to the said kirk of Bonhill, in manner following, viz.—The lands of Auchendennan-Dennistown,

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pertaining to Mungo Lindsay of Bonhill; the lands of Auchindennan-Rii, pertaining to Robert Napier of Kilmachew; the lands of Cameron, pertaining to Sir Umphray Colquhoun of Balvie; the lands of Stockrogert, pertaining to James Lindsay of Stockrogert; the lands of Tillichewn Meikle Tillichewn, pertaining to our right trusty cousin James Duke of Lennox, lyand within the parochin of Luss, being some six, some seven, some eight miles distant from the paroch kirk thereof, and near and awest to the said kirk of Bonhill by the space of ane mile and ane half at farthest; and the lands of Milntown, pertaining to John and Robert Napier of Kilmachew; the lands of Balloch, pertaining to our said deceast cousin James Duke of Lennox; the lands of Ladresbeg and Blairwhass, pertaining to Sir John Haldane of Gleneagles; the lands of Ballagan, pertaining to the College of Glasgow, lyand within the parochin of Kilmaronock, being three miles and more distant fra the kirk thereof, and within a mile at farthest to the foresaid kirk of Bonhill, be disjoined and dismembered fra the said kirks respective and parochins thereof wherein they now ly, and be adjoined and annexed to the said kirk of Bonhill, whereunto they ly awest, as said is—for the ease and comfort of the people and inhabitants of the said lands, the heritors of the whilks lands have supplicate the presbytery for disjoining thereof fra their saids proper paroch kirks and adjoining of the samen to the said kirk of Bonhill, whilk the said presbytery have recommended to the saids Commissioners, and the samen lands ought and should be disjoined and annexed in manner foresaid for the reasons and causes following.… And the said lands lyand within the said several parochins being sua disjoined fra their saids proper paroch kirks respective and annexed to the said kirk of Bonhill, ane just valuation ought to be made of the teinds thereof. Lykeas for the more speedy trial of the worth of the teinds of the lands within the said parochin of Bonhill and lands foresaid craved to be annexed thereto, and for eschewing longsome process therein, the said minister is content to refer both stock and teinds of the samen to the heritors' oaths of verity simple to the effect that ane valuation being made by the saids Commissioners of the said paroch of Bonhill and lands craved to be annexed thereto as said is, the saids Commissioners may proceed and modify and set downe ane competent and local stipend and provision to the said minister and his successors serving the cure at the said kirk of Bonhill and grant an sufficient maintenance for an reader and schoolmaster thereat.”

Here the narrative of the original summons ends, and the decreet commenced—“Whilk being oft and divers times called, and lastly this day, and the said minister compearand be John Pitcairn advocate his procurator who craved dis-memberation and annexation of the saids lands of Balloch, Milntown, Little Ladrish, Blairwhoss, and Ballagan lyand as said is conform to the foresaid recommendations of the said presbytery and to ane new recommendation for that effect for annexing of the saids lands formerly annexed and also craved the agreement whereby the Laird of Luss has augmented him in 200 merks to be approven by the saids Commissioners, and also craved augmentation out of the lands to be annexed conform to the rental given in by him and that the remainder defenders heritors might be holden as confest thereupon. And the Duke of Lennox compeared by Mr Peter Wedderburn advocate his procurator and the remainder defenders being oft times called and not compearand the reasons and allegations of both parties compearand being read heard and considerat be the saids Commissioners and they being therewith well and ripely advised the said Commissioners disjoined dismembered and divided the said lands pertaining to the foresaids persons lyand within the said parochin of Kilmaronock and unites and annexes the samen to the kirk and parochin of Bonhill to remain therewith as a part of the said parochin in all time coming, and decerns and ordains the inhabitants to resort and repair to the said paroch kirk of Bonhill as proper parochiners thereof in all time coming, and sick-like the saids Commissioners ratifies allows and approves the said agreement underwritten and interponed and be their presents interpones their decreet and authority thereto in all points whereof the tenor follows. Sir John Colquhoun of Luss is content and condescends that out of the teinds of the lands lately disjoined from the kirk of Luss and unite to the kirk of Bonhill and the privileges thereof be two hundred merks money yearly locallit to the minister of Bonhill in satisfaction of all further stipend or augmentation can be imposed upon the tiends of the saids lands. … And lykeways the saids Commissioners holds the heritors of the paroch of Kilmaronock as confest and added and augmented likeas they be their presents add and augment to the minister's former stipend of four chalders victual and fourteen bolls and two hundereth merks granted by the Laird of Luss and the fourtie three merks for the vicarage of the old paroch allowed for the elements, two hundred merks of money and two boll victual two part meal and third part bear furth of the annexed lands of Kilmaronock, making in haill five chalders victual of the quality foresaid, of the whilk five chalders victual two boll thereof is by the saids Lords Commissioners converted into money at £6, 5s. the boll whilk extends to £12, 10s. money and is decerned and ordained be the saids Lords to be added to the foresaid sum of two hundred merks payable out of the above annexed lands of Kilmaronock, and to be divided proportionally amongst the heritors thereof, conform to the localitie underwritten, and four hundereth merks of money and 43 merks for the vicarage of the old parochin allowed for the communion elements, whilk stipend foresaid the saids Commissioners decerned and ordained, and be their presents decerns and ordains to be paid to the said minister and his foresaids out of the teinds of the said lands within the said old and new unite parochins of Bonhill locallie, be the persons after mentioned and their successors in the of the teinds of the saids lands ilk ane of them for their own parts thereof conform to the division and localitie following.”

Then comes the locality by which the proportion of the augmentation of Bonhill to be paid by the Kilmaronock lands is localled on each of the heritors owning the annexed lands, and the Luss lands are thus dealt with:—“Furth of the lands of Meikle Tillichewan, pertaining heritably to James Duke of Lennox, the Laird of Luss, titular of the tiends thereof, four score pounds; furth of the lands of Meikle Tillichewan, pertaining

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heritably to the said James Duke of Lennox, and the said Laird of Luss, titular of the tiends thereof, four score merks; furth of the lands of Balloch, pertaining heritablie to the said James Duke of Lennox, 31 merks eleven shillings eight pennies, with five pounds viccarage; furth of the lands of Blairwhase, belonging to Sir John Haldane of Gleneagles, and in feu to of Blaramachan, fiftie-five pound four pennies, with five merks of viccarage; furth of the lands of Ladreshbeg, belonging to the said Sir John Haldane, and in feu to John and John Ewings elder and younger, and to John Logan, threttie-four pound seven shilling, with fortie shilling of viccarage; furth of the lands of Milntown, pertaining to Robert Naper of Kilmachew, twentie pound fourteen shillings, with fortie shillings of viccarage; furth of Ballagan, fortie-three shillings eight pennies of viccarage.”

The minutes of the Presbytery of Dumbarton, dated November 27, 1649, contain the following:—“Do therfore de novo recommend the annexation of the sd lands wtin the paroch of Kilmarinnok to the paroch of Bonhill and the augmentation of the sd stipend furth of the sd lands formerlie belonging to the parochin of Luss and of the sd lands yet belonging to the parochin of Kilmarinnok”—which'showed that the disjunction and annexation of the Luss lands must have been before the disjunction and annexation of the lands in Kilmaronock.

In a locality of Luss in 1793 the minister of Bonhill appeared, contending that the lands annexed to Bonhill should be withdrawn from the locality of Luss, but retired from the process after the following interlocutor had been pronounced:—

“ Edinburgh, 2 d December 1794.—The Lords having advised the memorial for the minister of Bonill, memorial for Sir James Colquhoun of Luss, and heard parties' procurators thereon, in respect there is sufficient evidence that the lands of Auchindinnan, Denniston, Auchindinnan-Rii, Stock-rogert, Cameron and Tillishewans were annexed to the parish of Bonhill quoad omnia, Finds that the rent of these lands must be struck out of the rental given in by the minister of Luss.”

In the locality of Bonhill (1795–1807) the annexed lands were not localled on for stipend. There was then free teind in Bonhill sufficient for the augmentation then granted.

The extent and nature of the usage of payment is seen from the opinion of the Lord President, infra.

The second question was, as already stated, whether the teinds of Haldane's Farm were valued or not. This property is composed of two feus, the Spittal of Ballagan, and the mill and mill-lands of Ladrishbeg.

The records of the Sub-Commissioners of Teinds (Presbytery of Dumbarton) contain the following entries:—“26th February 1630.

Item, the lands of Ballagan appertaining to the Colladge of Glasgow, ly and wt. in the said parochin of Kilmaronock, is valuit to be worth yeirlie in stok and parsonage teynd to

23 bolls meill,

wt. 40/of viccarage.

probin be witness at the instants of Mr George Young, and of the regents of the Colladge of Glasgow, and als be Jon Conyngham of Dumqu-hassie, takisman of the teynds of the said parche kirke, conform to the process.

Item, the lands of Lytil Laderish ptaining to the said Laird of Glenegles, is valuit to be worth in stok and teind to

27 bolls 2 p. meill,

wt. 40/ of viccarage,

yeirlie probin be witness at the said fiscal's instants.”

The titles relating to the Spittal of Ballagan are narrated in the Lord Ordinary's opinion, infra.

A precept of clare constat of 1686, referred to in the Lord Ordinary's opinion, contains the following:—“Nec non pro salutione prestatione observatione et impletione mihi meisque antedict omnium reliquorum divoriorum servitorum actorum clausularum provisiorum et conditionum particulariter et ad longum specificat et content in originali carta feudifirmaeœ concess per quondam Jacobum Halden de Glenneglis quond. Gullielmo M'Kechnie avo predicti Gullielmo diet mollendini terrarum mollendinarium aliorumque suprascript cum pertinen de data apud Lenricke in Monteith ultimo die mensis Junii anno Domini Millesimo sexcentesimo decimo sexto.”

On this part of the case the minister contended that the teinds of Haldane's Farm were unvalued. Mr Orr Ewing, the proprietor of the subjects, contended that they were valued.

On 16th June 1882 the Lord Ordinary ( M'Laren) pronounced the following interlocutor:—“The Lord Ordinary having considered the cause in the question between the minister and Archibald Orr Ewing and others, Finds that the mill and mill-lands of Ladrishbeg, now belonging to Mr Orr Ewing, are unvalued, and to that extent sustains the objections for the minister, and quoad ultra repels the objections stated for him, and appoints the cause to be enrolled for the purpose of ascertaining the value of the lands now found to be unvalued,” &c.

“ Opinion.—Two questions are raised under the objections to the interim locality for Mr Simpson, and answers for certain of the heritors. The first question is, Whether the minister is entitled to teind from certain lands originally situated in the parishes of Kilmaronock and Luss, but now forming part of the parish of Bonhill, in virtue of a decree of disjunction and annexation of the High Commission made in the year 1648?

The second question is, Whether the teinds of Haldane's Farm, the property of Mr Orr Ewing, are unvalued?

I. It is proved that the subjects annexed to Bonhill by the decree of 1648 (which I need not enumerate) have paid stipend to the ministers of Kilmaronock and Luss respectively notwithstanding their disjunction from those parishes. The usage of payment has been continuous from the date of the disjunction and annexation, as the proceedings in subsequent processes of locality clearly show. The heritors successfully defended themselves in the locality of Bonhill (1795–1807) against the claim of the minister to teinds out of the subjects in dispute, including the subjects paying stipend to the minister of Kilmaronock as well as the subjects paying to the minister of Luss. Moreover, when the minister of Bonhill entered appearance in 1793 in the locality of Luss (an unusual step), and endeavoured to reclaim the teinds from the minister and heritors

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of Luss he had only an apparent success. Because although by the interlocutor of 2d December 1794 the subjects in dispute were ordered to be struck out of the proven rental, yet when the locality of Luss was afterwards made up the lands in question were entered in it for the amount of the old stipend which had been in use to be paid to the minister of that parish, and I understand that the old stipend exhausts the teinds of those lands.

In these circumstances I think justice will be done by applying the principle laid down in the cases of Abbotshall and Ballingry [cited infra]. The learned Judges who took part in these decisions did not doubt that the High Commission had jurisdiction to reserve to the minister from whose charge the lands were taken away his right to the stipend which had been in use to be paid from the teinds of such lands. It appears from these cases that this power was frequently exercised by the High Commission, and in the present case I think it must be presumed that the disjunctions from the two parishes were made under reservation of the minister's rights. A copy of this decree is printed. In the memorial to which the copy is annexed it is stated that the original is not extant. But it is referred to in the interlocutor of Court of 2d December 1794, and for the purposes of the present decision I accept the copy as authentic. The decree is entitled ‘Decree of Disjunction, Annexation, and Localitie.’ After disjoining the lands in question from Kilmaronock and Luss, and annexing them to Bonhill, the decree proceeds to allocate the stipend of the minister of Bonhill, and gives him nothing out of the annexed lands. It is true that the decree does not contain in terms a reservation of the rights of the ministers of Kilmaronock and Luss. But the omission to assign a stipend to the minister of Bonhill out of the annexed lands is significant, and is, in my opinion, sufficient evidence of the intention of the High Commission, when followed by a usage of payment for more than 200 years, to support the plea of the heritors that they are under obligation to pay stipend to the ministers of the parishes from which their lands were disjoined. I may also observe that the decree narrates an obligation by Sir John Colquhoun to pay a sum of 200 merks to the minister of Luss, apparently in lieu of teinds which might otherwise be due from the annexed lands. In the decerniture this sum is allocated to the minister of Bonhill as part of his stipend. This sum converted into sterling money (£11, 2s. 6d.), and charged on the lands of Tillichewan, appears in the note of the old stipend of Bonhill reprinted from the locality of 1792.

II. The question whether the teinds of Haldane's Farm are valued is twofold. This little property has been formed by the union of two feus, named respectively the Spittal of Ballagan and the mill and mill-lands of Ladrishbeg. I shall consider the two cases in their order.

(1) I hold that the teinds of the Spittal of Ballagan are valued—that they are in fact included in the valuation of the teinds of Ballagan, of which the ‘Spittal’ was then a part. The valuation was then by the SubCommissioners for the Presbytery of Dumbarton. It is quoted in the record, and bears date 26th February 1630. The lands are there described as pertaining to the College of Glasgow. Twenty-five years thereafter the College of Glasgow disponed Ballagan to Sir John Colquhoun of Luss, and in 1768 a charter of resignation and confirmation of the Spittal of Ballagan was granted by Sir James Colquhoun, heir of Sir John, to John M'Allister, in which the intermediate titles are narrated. From this document it appears that Ballagan and the Spittal of Ballagan had been feued out as one subject by Sir John Colquhoun (the grantee of the College) to Donald M'Kechnie, by whom they were divided. The disponee is accordingly taken bound to pay ten merks as his proportion of the cumulo feu-duty, and also to pay a proportion of the sum of forty merks, being the composition payable for the entry of heirs and assignees of the said Donald M'Kechnie. Thus it is proved that the Spittal of Ballagan is part of the estate of Ballagan, valued in 1630, acquired by Sir John Colquhoun in 1655, and feued out by him prior to 1661, when the Spittal was for the first time made the subject of a separate conveyance.

(2) I hold that the mill and mill-lands of Ladrishbeg are unvalued. It is true that the lands of Ladrishbeg, or Little Ladrish, pertaining to the Laird of Gleneagles, were valued by the Sub Commissioners in 1630. But the mill and mill-lands had been feued out by the Laird of Gleneagles in the year 1616, as appears from the reference to the original charter contained in a precept of clare constat dated 1686. The valuation of the lands of the Laird of Geneagles, made by the Sub-Commissioners of Teinds, would not, in my apprehension, cover estate of which Gleneagles held only a bare superiority. It is noticeable that in the county valuation made a few years later by the Commissioners of Supply Ladrishbeg and the mill thereof are entered as separate subjects, while there is only one entry applicable to Ballagan. This is in accordance with what we have seen to be the actual state of the titles at that date (County Valuation 1657).”

The minister reclaimed against this interlocutor, but acquiesced in the finding with regard to the Spittal of Ballagan.

In the course of the debate a remit was made on 14th November 1882 to the Teind-Clerk to inquire and report whether there was any free teind in the parish of Luss, and what was the amount, and what was the amount in 1814. On 20th November the Teind-Clerk reported that the free teind amounted to £573, 7s. 10d., and that in 1814 it amounted to £249, 14s. 3d.

Argued for the minister—The minister of Bonhill is entitled to reclaim from the annexed lands teind sufficient to give effect to his augmentation, even though there should be no free teind to recompense the minister of the parish from which the lands had been disjoined, the right of the parish minister being pre-eminent. (This contention was not insisted in after the report of the Teind-Clerk had been lodged.) At any rate, he is entitled to do so if there is sufficient free teind to recompense the minister thereby deprived. The general rule is to give effect to a reservation of teind contained in a decree of disjunction and annexation if it be expressed, but there has been no case in which such a reservation has been presumed except in Abbotshall, where the circumstances were special. There is here no reservation in the Kilmaronock decree, and none can be

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presumed in the Luss decree. Not only would it be contrary to practice to presume such a reservation in the case of Luss, but there could in point of fact be none, since Luss was a parsonage, and the parson drew the whole teind. Moreover, the minutes of Presbytery (quoted above) show a clear desire to augment the stipend of the minister of Bonhill—Connell on Tithes, i. 442, ii. Ap. p. 15; Connell on Parishes, p. 60; Johnson v. Heritors of St Cuthbert's (North Leith case), M. 14,834; Common Agent in Locality of Abbotshall v. The Minister of Kirkcaldy, November 22, 1815, F. C; Pennell v. Malcolm (Ballingry case), July 20, 1869, 7 Macph. 1078; Earl of Mansfield v. Sir A. D. Stewart, January 30, 1880, 7 R. 552; Duke of Athole v. Lord Advocate, February 23, 1880, 7 R. 583. As regards the objections for the heritors of the annexed lands in the locality of Bonhill (1795–1807), it was quite right they should be sustained, because none of the annexed lands should have been localled on until the free teind in Bonhill was exhausted; the minister did not then offer any opposition to the heritors' contention, and therefore those proceedings could not make the present question res judicata. With regard to the Luss locality in 1793, the minister was successful in all he wished, viz., to have the annexed lands struck out of the proven rental—the basis of the augmentation—and having got this done he then retired, having no further interest or title. The mill and mill-lands of Ladrishbeg must be held to be unvalued as they were feued out in 1616, whereas the decree of valuation by the Sub-Commissioners of the lands of Ladrishbeg was not until 1630.

Argued for the heritors of Luss and Kilmaronock—The rule of the North Leith case could not be applied in the case of a proper parsonage, because the parson differs from a stipendiary minister in drawing the whole teind as stipend. The lands were disjoined from Luss in 1848, and therefore the agreement between Sir John Colquhoun and the minister of Bonhill in 1650 can only be explained by assuming a reservation in the decree of disjunction.

Argued for Sir James Colquhoun, the titular of Luss—In Kilmaronock the stipend was localled on the whole disjoined lands, but in Luss on the Tillichewans. It was to be presumed that in the decree of annexation there was a reservation in favour of Luss of the teind belonging to the parish in consideration of 200 merks yearly— Lochore and Capeldrae Coal Company v. Common Agent in Locality of Ballingry, March 15, 1878, 5 R. 763; Connell on Tithes, ii. Ap. pp. 16, 78; Fogo v. Colquhoun, December 6, 1867, 6 R. 105.

Argued for Mr Orr Ewing—If the name of Ladrishbeg was enough to carry the mill and milllands in the case of annexation, then it was enough to carry them in the case of valuation—Connell on Tithes, ii. Ap. p. 95; Nicol v. Paul (Banchory Devenick case), May 14, 1867, 5 Macph. (H. of L.) 62; Deans of the Chapel Royal and Her Majesty's Advocate v. Johnstone, &c., March 18, 1869; 7 Macph. (H. of L.) 19.

At advising—