Scottish Court of Session Decisions

In 1883 the Reverend Hugh Maclachlan, minister of the united parish of Ardchattan and Muckairn, in the county of Argyle, raised in the Court of Teinds a summons of augmentation, modification, and locality. In that process Mrs Elizabeth Margaret Downing Macdonald or Stuart, heritable proprietrix of the lands of Dalness, situated in the united parish of Ardchattan and Muckairn, stated that the lands of Dalness were included in the decree of valuation of the lands of Inverawe, also in the said united parish, and that there were no surplus teinds of these lands, as they had been exhausted in former schemes of locality of the parish.

This was an action at the instance of the minister against Mrs Stuart to have it declared that the teinds of the lands of Dalness were unvalued, and were not included in the valuation of the teinds of any other lands, and were liable to be localled on for the stipend of the minister of the united parish of Ardchattan and Muckairn.

The earliest title to the lands of Dalness which was produced was an instrument of sasine in favour of Dugald Campbell, heir-apparent of Inveraw, and Agnes Campbell, his future spouse, dated 3d and 4th May 1633, proceeding upon a charter by Archibald Campbell of Inveraw, his father, dated 1st May 1633. The lands were therein described as “totis et integris tribus mercatis trarum de Achacharne” and “totis et integris quatuor mercatis trarum de Innerraw … totis et integris quatuor mercatis trarum de Drumnachois duabus mercatis trarum de Dallenessa cum custodia forreste ac silvarum de Glenetteiff fideliter ac cum effectu prout custos silvarum et forrestarum et cervorum in eisdem existentium custodire tenentur … totis et integris sex solidatis et octo denariatis trarum de Branry.”

There was also produced a copy of a tack, dated 3d May 1608, granted by Archibald Campbell of Inverawe to Agnes Macdonald of the lands of Dalness. This tack contained the following, viz.— “The saids Angus being alwise bound to keep the forest of Buachilletive and the foresaid Archibald Campbell of Inverau gives hereby to the said Angus as much power as any Forrester in Scotland haye for preserving of the said forrest.”

In a charter of novodamus, dated 29th October 1650, granted by the Marquis of Argyle in favour of Dougall Campbell of Inveraw, and of Archibald Campbell, his son, the description of the lands was the same as in the sasine of 1633.

By feu-contract dated 23d May 1764 Mrs Campbell of Inveraw feued to John Macdonald the twenty shilling land of old extent of Dalness, with the teinds, parsonage and vicarage. The feuar was taken bound to pay eighteen merks for the lands and ten merks for the teinds, and there was this further obligation imposed upon him—“as also for the said office of fforrestry to kill whatever number of deer shall be called for in the proper season yearly for the use of the said Mrs Janet Campbell and her successors, and to bring the said deer upon his own expences from the fforrest to the lands of Inverealine, and being bound and obliged faithfully to keep the said forrest and deer therein conform to use and wont.”

The defender of this action was the successor of John Macdonald in the lauds of Dalness.

The report of valuation of the lands in the parish of Ballevoden by the sub-commissioners of the Presbytery of Argyle in 1629 set forth that the sub-commissioners had been directed to try and inform themselves by all lawful means of the worth “of all landis of each paroche, of the said presbitrie, in stock and teynd,” and that therefore they had “faithfullie trewley and dilligentlie proceidit in trying and cleiring of the saides waluatiounes of the parochynes underwrettene lyand within the said presbitrie of Argyll.”

The report then went on to declare that the lands underwritten pertaining to Dougall Campbell, fiar of Inveraw, for himself, and taking burden on him for Archibald Campbell of Inveraw, his father, lying within the parish of Ballivaddin in Bandvaloch, “hes payet in time bygane, pays presentlie, and may pay as a constant rent in stock yearly in time coming the particular rent and duty underwryten,” “viz., Their lands of Inneraw, of rent 29 bolls meall, 6 bols bear, of personage teind 6 bolls meall, and for ye vicarage yrof eight punds Scots money. Their lands of Branrie, of rent twa bolls bear, 2 stanes cheyis, of personage teinds 2 firlots meall, and for ye vicarage yrof 40 shilling. Their lands of Achacharne, of rent 30 stanes cheyis nine merks money, of personage teind ane boll half boll meall, and for ye vicarage yrof eight pundis 13sh. 4d. money. And their lands of Drumachois, of rent 60 stanes cheyis eight pundis money, of personage teind 2 bolls meall, and for ye vicarage yrof £9, 6s. 8d. money.”

From the decreet of approbation dated 5th March 1777, produced by the defender, it appeared that the summons was raised at the instance of Lieutenant-Colonel Robert Campbell of Finab, the then proprietor of Inverawe, and other heritors, against the Officers of State and the ministers of the respective parishes in which their lands lay, and that it contained conclusions for the division of the cumulo valuations of the teinds of such lands as had been valued in cumulo, but which at the date of the approbation belonged

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to different proprietors. The decreet set forth that the Court of Session, as Commissioners for the Plantation of Kirks and Valuation of Teinds, ratified and approved of the report of the subcommissioners of the Presbytery of Argyle, inter-poned their authority to the decreet, and “hereby find and declare the just worth and constant yearly avail of the stock and teind parsonage and vicarage of the said pursuer Colonel Robert Campbell of Finabs Lands lybelled to be now and in all time coming the particular quantities of victual and sums of money following, vizt., The lands after mentioned lying in the parish of Ballivaddin or Ardchattan belonging at the time of the valuation to Archibald Campbell of Inveraw and Dugald Campbell fiar thereof his son now to the said Lieutenant-Colonel Robert Campbell of Finab pursuer, vizt., The rent of his lands of Inveraw twenty-nine bolls meal and six bolls of bear, of parsonage teind six bolls meal and the vicarage thereof eight pound scots Item the rent of his lands of Branrie two bolls of bear and two stones cheese, of parsonage teind two firlots of meal and the vicarage thereof forty shillings scots Item the rent of his lands of Drumahois three scores stones cheese and eight pounds scots of parsonage teind two bolls meal and the vicarage thereof nine pound six shilling and eight pennies scots Item the rent of his lands of Innercharrachan or Innercharnan belonging at the time of the valuation to John Macdougal of Ragray and now to the said Lieutenant Col Robert Campbell pursuer lying in the said parish of Ballivaddin forty merks scots of parsonage teind one firlot of meal and the vicarage thereof three pound six shilling and eight pennies scots Item the rent of his lands of Inverellan or Innerlane belonging at the time foresaid to the said John McDougal and now to the said Lieutenant-Colonel Robert Campbell lying in the said parish of Ballivaddin forty merks scots of parsonage teind one firlot of meal and the vicarage thereof three pounds six shilling and eight pennies scots.”

A process of augmentation, modification, and locality was raised in 1764, and came to an end in February 1771. In this process neither the lands of Dalness nor the name of Mr John Macdonald, the then proprietor, appeared. From the interlocutors in that process it appeared that the lands of Inverawe were exempted from stipend because they were found to be part of the bishop's fourth.

The next process of augmentation, modification, and locality was raised in 1799. In that process Coll Macdonald of Dalness appeared in the proven rental for a rent of £300. In 1806 a scheme of locality was prepared and approved final, but neither Coll Macdonald nor the lands of Dalness were mentioned therein.

In another process of augmentation, &c., raised in 1816, the Court modified to the minister the whole teind of the parish as valued by the subcommissioners in 1629. By the scheme of locality which was approved final on 5th March 1817 no part of the stipend was allocated on Dalness, but the whole of the teind of Inverawe as valued in 1629 was laid on Mr Campbell of Inverawe.

A proof was led with regard to the situation of the lands of Dalness, from which it appeared that they were about twenty miles distant from Inverawe.

The pursuer pleaded—“(l) The teinds of the said lands of Dalness not being valued or included in the valuation of the teinds of any other lands, and being libelled to be localled on for stipend, the pursuer is entitled to decree of declarator as concluded for.”

The defenders pleaded—“ Res judicata, in respect that it was decided in the process of augmentation, modification, and locality raised in 1816 that the proprietor of Dalness was not liable in teind in respect thereof.”

The facts upon which this plea was based are very fully stated in the opinion of of Lord Adam infra.

The defenders further pleaded—“(2) The lands of Dalness having been included in the valuation of the lands of Inverawe and others in 1629, approved of by the decreet of approbation and valuation in 1777, are not liable to be revalued or localled upon for teind separately from the said lands of Inverawe and others.”

The Lord Ordinary ( M'Laren) on 16th January 1885 pronounced this interlocutor—“Sustains the first plea-in-law for the defenders: Finds that the lands of Dalness belonging to the defenders are not liable to be be localled on for the stipend of the minister of the united parish of Ardchattan and Muckairn: Therefore assoilzies the defenders from the conclusions of the action, and decerns, &c.

“ Opinion.—In this action of declarator, the pursuer, who is the minister of the united parish of Ardchattan and Muckairn, seeks to have it found and declared that the teinds of the lands of Dalness in the united parish are unvalued. The defender pleads (1) res judicata, and (2) that the lands of Dalness are included in the valuation of the lands of Inverawe and others made by the sub-commissioners of the presbytery of Argyll in 1629, and approved by a decree of the Court of Teinds in 1777.

Being of opinion that the plea of res judicata ought to be sustained, it is unnecessary that I should also express an opinion on the merits of the question whether the teinds are valued, but I must refer to the conditions of the question as part of the history of the case.

The valuation founded on, or so much of it as relates to these lands, is printed in the appendix to the record. From that document it appears that Dougall Campbell of Inverawe was liable on the rental there specified in respect of the four subjects named — Inverawe, Branrie, Achacharne, and Drumachois. Now, it appears from a charter of novodamus in favour of Dougall Campbell, granted a few years later, that this gentleman was also proprietor of the two-merk lands of Dallenessa, with the keeping of the forest and woods of Glen Etive, and it is certain that this subject is not separately valued in the sub-commissioners' report. We do not know why the forest of Dalness was not separately valued—whether, for example, it was because the forest was not a rent-producing subject, or because exemption was claimed on some special ground, or whether the forest was included in the valuation under the general name of Inverawe, or whether it was simply omitted to be valued. The proof adduced before me was confined to the identification of the subjects on the map, and there is really nothing to show that Dalness forest is unvalued, except that its distance

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from Inverawe and the difference of name make it unlikely that it should be included in the valuation of Inverawe.

In 1764 Mrs Janet Campbell of Inverawe granted a feu of the lands of Dalness to Mr John M'Donald, taking Mr M'Donald bound to pay 18 merks of feu-duty for the lands, 2 merks for the multures, and 10 merks for the teinds. This last provision rather indicates that Dalness was considered to be included in the valuation of the teinds of Inverawe, to which accordingly the feuar was to make his proper contribution. The defender is the successor of Mr John M'Donald.

I now come to the circumstances constituting res judicata. There were three processes of augmentation, modification, and locality of dates subsequent to the feu to Mr M'Donald.

(1) In the process which was commenced in 1764 (the year in which the feu was granted), and which became final in 1771, neither the name of the lands of Dalness, nor the name of Mr John M'Donald appears.

(2) Another process of augmentation, modification, and locality was instituted in 1799, and the result of the narrative in the minute of admissions is, that while Mr Coll M'Donald, the proprietor then in possession, was not called as a defender, he was cited by a supplementary proceeding, and his name was inserted in the proven rental as confessed on a rental of £300. But this insertion was not carried out in the scheme of free teind, and again, in the scheme of locality, which became final on 10th December 1806, neither the name of Mr Coll M'Donald nor the lands of Dalness are inserted.

(3) With reference to the third locality, that of 1806, we have similar admissions, and excerpts from the actual proceedings are printed. In this instance the entry of the value of Dalness appearing in the rental whereon the heritors were held confessed does not appear in the state of teinds or in the locality. There is no evidence that in any of these proceedings there had been contentious litigation between the proprietor of Dalness and the minister or the heritors. On the other hand, it may be inferred that in each of these cases the proprietor of Dalness objected to be localled on, and that the other parties to the process acquiesced in his being left out of the locality. The question of his liability was not simply overlooked, because, in the second of the three proceedings the minister went to the expense of citing Mr M'Donald of Dalness by a supplementary diligence for the purpose of bringing him into the proven rental. It is not easy to account for the omission of Mr M'Donald's name from the scheme of locality afterwards prepared, except on the supposition that the minister was satisfied that he had no case for a decree affecting Mr M'Donald, and therefore acquiesced in his exclusion from the locality. In the last of the three proceedings the minister had a very material interest to cause Dalness to be put into the locality, if be had legal grounds for doing so, because the locality bears that the teinds of the parish are exhausted; yet here also the inclusion of Mr Coll M'Donald's name in the proven rental is not followed up in the settlement of a locality.

According to the judgment of the House of Lords in Dundas v. Waddell, it is not necessary to the success of a plea of res judicata that it should be made to appear that the question had been argued and judicially considered. It suffices for this purpose that the lands are declared to be valued or are ordered to be struck out of the rental by the sentence of a Judge.

In the present case on referring to the printed proceedings it appears that the Lord Ordinary, Lord Reston, in the first instance, by interlocutor dated 6th February 1816, approved of the proven rental which contained the name of Coll M'Donald, and it results from his Lordship's deliverance that Mr M'Donald would be required to make an interim payment of his share of the sum of £1805, 11s. 4d. Which was then found to be the amount of the teind, parsonage and vicarage. The case on 7th February was reported to the Court, by whom a stipend was modified, and a remit made to the Lord Ordinary to prepare a locality and to report. The locality then passed the usual stages, and became final in the following year. Now, although there is no order here, as in the case of Mr Dundas of Arniston, for striking the name of the heritor out of the rental upon which interim payment was to be made, yet as a matter of fact Mr Coll M'Donald's name does not appear in the locality, which is the rule of final payment; and the non inclusion of that gentleman's name must be taken to have had the approval of the Lord Ordinary, to whom the preparation of the locality was committed. I am not to assume that the point was brought under the Lord Ordinary's notice; but if the question of Mr M'Donald's liability for stipend was not considered by the Lord Ordinary, that could only be because all the parties were agreed that Mr M'Donald was not liable, and that his name which had been provisionally included in the rental, ought to be dropped out of the locality. No one had any right to leave Mr M'Donald's name out of the locality except the parties or the Judge, and there is a report by the Lord Ordinary recommending this locality to the Court for approval, and an interlocutor of the Court approving of it. Therefore, while the circumstances are not precisely the same as in the case of Dundas v. Waddell, there is in my view no solid distinction between the two cases.

I am of opinion that the question in dispute has been adjudicated upon in two of the three previous processes of locality, and that it is res judicata that the defender as proprietor of Dalness is not liable in payment of stipend.”

The pursuer reclaimed, and argued— On the plea of res judicata:—No issue had ever been raised in the previous proceedings of the nature now presented, and there had, therefore, been non judicium. A plea of res judicata had never been sustained in such circumstances. In Dundas v. Waddell. Dec. 19, 1878, 6 R. 345, rev. 7 R. (H. of L.) 19, the issue whether or not the lands were teind free had in the previous proceedings been distinctly presented. In Graham Bonar v. Lord Advocate, Nov. 3, 1870, 9 Macph. 58, papers had been lodged on each side raising the question at issue. On the merits:—The lands of Dalness were admittedly not valued by name. It was contended that they were included under the name of Inverawe, but Dalness was not near Inverawe. There was no evidence to show that the proprietor of Inverawe was the proprietor of Dalness at

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the date of the valuation. According to the defender's theory great trouble had been taken to value the half merk lands of Branrie, while the two merk lands of Dalness had been left unvalued. The terms of the decree of approbation in 1777 made it clear that all concerned understood at that date that Dalness had not been included in the valuation of Inverawe, because, although the decree made an allocation of the teind payable by the lands which had come to be owned by separate proprietors, but which had been valued in cumulo, there was no allocation in the case of Dalness, which had, in any view, ceased by that time to belong to the proprietor of Inverawe. It was not incumbent on the pursuer to suggest a reason why the lands of Dalness were not given up for valuation, but it was probably because those lands being a royal forest were considered to be teind free— Cameron v. Macpherson, April 1, 1853, 15 D. 657; Earl of Murray v. M'Diarmid, Nov. 16, 1869, 8 Macph. 142. This case was distinguishable from Paterson v. Macleod (Morven Case), March 9, 1869, 7 Macph. 614, off. 11 Macph. (H. of L.) 62; Thomson v. Earl of Zetland, Nov. 10, 1868, 7 Macph. 99; Elder v. Fotheringham, Jan. 8, 1869, 7 Macph. 341; Haldane v. Ogilvy, Nov. 8, 1871, 15 Macph. 62.

The defender argued— On the plea of res judicata:—The minister had twice judicially tried to raise the stipend, and twice failed. That amounted to res judicata. It was not necessary that the mind of the Court should have been applied to the question, as the decree might have been of consent— Duke of Buccleuch v. Common Agent of Inveresk, Nov. 10, 1868, 7 Macph. 95; Earl of Hopetoun v. Ramsay, March 2, 1841, 3 D. 685, aff. 5 Bell's App. 69. It was not necessary that the ground of judgment should appear, or that the minister should have an interest to object— Dundas v. Waddell, supra. Nor that the ground of judgment should appear— Willoughby D'Eresby v. Speir, Dec. 14, 1876, 14 Scot. Law Rep. 162. It was not necessary that the judgment should be expressed in so many words— Graham Bonar v. Lord Advocate, supra—because it must be assumed the Court knew why the lands were not included, although their reason may not appear. All the elements of res judicata were here which were in Dundas v. Waddell. On the merits:—A liberal interpretation was to be given to the report of the sub-commissioners. They then state that they have valued all the teinds of the parish, and such a statement must receive effect unless the contrary is proved. The cases of Paterson v. Macleod ( Morven case, sup. cit.), and of Earl of Mansfield, &c. v. Stewart, Jan. 30, 1880, 7 R. 552, were the only two cases in which lands were held not to have been valued in spite of the statement in the report. Both those cases were distinguishable from the present— Simpson, &cc. v. Ewing, Dec. 8, 1882, 10 R. 313; Minister of Banchory Devenick v. The Heritors, July 1, 1863, 1 Macph. 1014; Feb. 3, 1865, 3 Macph. 482, aff. 5 Macph. (H. of L.) 62; July 2, 1869, 7 Macph. 967, aff. 9 Macph. 121.

At advising—