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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Smollett v. Simpson [1885] ScotLR 22_768 (22 June 1885)
URL: http://www.bailii.org/scot/cases/ScotCS/1885/22SLR0768.html
Cite as: [1885] ScotLR 22_768, [1885] SLR 22_768
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SCOTTISH_SLR_Court_of_Session
Page: 768↓
Court of Session Teind Court.
(Before the
v.
Facts:
In an action brought by a heritor in the Teind Court in 1884 for approbation of a report of the sub-commissioners in 1630 valuing the teinds of certain lands, the minister lodged defences, in which he stated that though the victual teind was calculated according to standard measure, yet stipend had for more than a hundred years been paid according to the county measure, which exceeded the former. He also stated that a small payment had been made to the minister of an adjoining parish out of the lands valued. He pleaded that the pursuer and his predecessors had derelinquished the sub-valuation sought to be approved. Held that there was no evidence of an intention on the part of the heritor to abandon the sub-valuation, and defences therefore repelled.
This was an action brought in the Teind Court by Patrick Boyle Smollett of Bonhill against the Duke of Montrose, as titular of the teinds of the parish of Bonhill, and the Reverend William Simpson, minister of the parish, for approbation of a sub-valuation of the teinds of the pursuer, lands of Bonhill dated 16th March 1630.
By this sub-valuation the teinds of the eight
Page: 769↓
pound land of Bonhill were valued at the following quantities of victual and money, viz.—
B.
F.
P.
L.
Meal,
24
1
2
1
3 5 Bere,
7
2
1
2
2 5 Total victual,
32
0
0
0
Money 13s. 4d. sterling.
The victual teind was here stated according to the Dumbartonshire county measure, which exceeded the standard measure.
The stipend to the minister of Bonhill, for which the pursuer and his predecessors had been localled on since a period prior to 1807, amounted to the following quantities of victual and money, viz.—
B.
F.
P.
L.
Meal,
23
0
0
0
Bere,
11
0
0
0
Total victual,
34
0
0
0
Money, 13s. 4d. sterling.
The victual stipend was here stated in standard measure.
The minister lodged defences in which he stated that for a period long exceeding forty years the bere stipend had been paid, not according to standard measure, but according to local measure, and that, making an allowance for an under payment of the meal stipend, there still remained a total over-payment, calculated on the average fiars prices, of £1, 5s. 2d. annually. The minister further alleged that the pursuer annually paid teind out of his said lands to the minister of Dumbarton, which amounted on an average to 15s. 6d.
The pursuer founded on two processes of augmentation in the parish of Bonhill, in the earlier of which the locality was declared final in 1807. In the later a locality was approved interim in 1827, and was rectified in 1883, but had not become final at the date of this action. Prior to the locality of 1807 the stipend paid to the minister of Bonhill for the lands in question was that above specified.
In the locality of 1807 the minister alleged dereliction of the sub-valuation, and the common agent proposed to allocate a portion of the augmentation upon the teinds in question. Objections were lodged for the pursuer's predecessor, denying that there had been any dereliction, and pointing out that the apparent over-payment of victual arose from the difference between the county and standard measure. Effect was given to these objections, the old stipend above specified being simply continued, and no part of the augmentation being laid upon these teinds. In the locality of 1827 the question of dereliction was again raised by the minister, but the old stipend paid for the pursuer's lands was again continued.
The minister pleaded that the sub-valuation had been derelinquished by over-payment.
The pursuer argued — It was admitted that though the stipend localled was standard measure, yet the minister had for more than forty years been allowed to collect the bere teind according to local measure. The legal obligation on the heritor was what appeared in the locality, viz., 34 bolls standard measure, and this was just equivalent to the amount appearing in the subvaluation, viz., 32 bolls county measure. The question now at issue had been raised in the localities of 1807 and 1827, and decided in favour of the heritor. Dereliction involved consent, and there was none here— Richmond v. Officers of State, July 19, 1871, 9 Macph. 1020; E. of Kinnoull, Shaw's Teind Cases, 105; Edmonston v. Graham, Feb. 18, 1807, F.C. The locality of 1827 was still interim, and payments made under it could be rectified. The payment to the minister of Dumbarton was an old use and wont payment which could never infer dereliction. Besides, it had not been shown that this payment was made from lands included in the valuation.
The defender argued—The intention of the heritor to derelinquish could here be inferred from the facts proved. The stipend had been paid so far as regarded bere according to the county and not the standard measure since a period prior to 1807. These overpayments were absolutely continuous. The proceedings in the former processes could not affect the minister as he was not a party. The payment to the minister of Dumbarton was not a mere use and wont payment, and must have been made from land included in the valuation. He was entitled to take this payment into account in a question of dereliction— Fogo v. Colquhoun, supra. In the case of Richmond the payments were small, and had been made under protest.
The valuation of Mr Smollett's lands in the parish of Bonhill is set out in the summons, and there is no doubt about it. The stipend which he and his predecessors have been localled on is 23 bolls of meal and 11 bolls of bere, standard measure, together with 13s. 4d. sterling of money, and the question is whether in paying that he has paid more than by the report he was bound to pay?
In one sense he certainly was, because it turns out that as regards one portion of the victual teind—viz., the bere—the pursuer has been paying according to the county measure, which exceeds the standard measure, and that therefore he has been paying in money more than he was bound to, though he was only paying for 23 bolls of meal and 11 bolls of bere, as entered in the locality. The minister annually presented his claim for stipend, with reference to the fiars' prices, for the amount of victual teind entered in the locality, which, however, was calculated according to the local measure, and this led to Mr Smollett and his predecessors making over-payments in fact though not in form.
Is it possible to deduce from this an intention to abandon the sub-valuation? The heritor did not and could not know that he was paying more in money than he was bound. No doubt he did not investigate into the circumstances, but mere negligence, if that can be called negligence, is not sufficient to infer dereliction, for there must be a distinct intention on the part of the heritor to abandon the sub-valuation.
With regard to the payment to the minister of Dumbarton, I think the defenders have failed entirely, for they have not made out that the
Page: 770↓
I think it is impossible to infer that there was an intention to abandon the sub-valuation, and I am therefore of opinion that the defences should be repelled and decree granted in terms of the conclusions of the summons.
The Court repelled the defences, and granted decree of approbation.
Counsel for Pursuer— Mackintosh— Low. Agents— J. & J. H. Balfour, W. S.
Counsel for Defender— Pearson— Dundas. Agents— Mylne & Campbell, W.S.