Scottish Court of Session Decisions

This was an action at the instance of the Earl of Fife against Miss Anne Wharton Duff of Orton, in the county of Elgin, concluding for payment of £3293, with interest, which the pursuer alleged to be due to him by the defender in respect of stipend of the ministers of the parish of St Andrews Lhanbryde, underpaid by the defender and her predecessors from the teinds of the lands of Barmuckity and others belonging to them in the said parish from 1812 to 1881.

The circumstances out of which the action arose were as follows—Between 1812 and May 1886, the date of the present summons, three different processes of augmentation, modification, and locality of stipend of the parish of St Andrews Lhanbryde had been raised. The first of these was in September 1812, and the second was in September 1842. These two were conjoined on 9th February 1844. The third action was raised in September 1863, and it was conjoined with the two previous actions in January 1868. The final locality was dated May 1882, when it was discovered that throughout the parish there had under the interim schemes of locality from 1812 to 1881 been a number of under and overpayments.

The pursuer averred that as heir in mobilibus of the then proprietors of part of the lands in respect of which overpayments were made, he was entitled to relief from the defender as representing the proprietor of part of the lands in respect of which underpayments had been made.

The defender, while admitting her liability to account for underpayments for forty years before the date of the action, averred as follows—That in 1629 the teinds of the lands in the parish of Lhanbryde were valued by the Sub-Commissioners of Elgin, and that in 1792 the then Earl of

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Fife obtained a decree of approbation and valuation in terms of the Sub-Commisioner's report notwithstanding that in the meantime he had been paying stipend in excess of the valued teind; that in the various proceedings in the localities already referred to this decree of approbation and valuation was never founded on or produced until prescription had run upon it, and it had become unchallengeable; and that had it been founded on it would have been reduced and set aside. The defenders also averred that it was not until the proceedings in July 1844 that the pursuer's predecessor founded upon the decree of approbation and valuation of 1792, and then maintained, for the first time, that as the whole amount of the valued teind in St Andrews Lhanbryde was more than exhausted he was not liable for any part of the augmentations under the interim schemes of 1814, 1824, or 1843.

The pursuer pleaded, inter alia—“(2) The defender as owner of the lands of Barmuckity, and also as representing former owners thereof, having underpaid teind during the period libelled, is bound to pay to the pursuer the proportion of overpayments applicable to the said lands, with interest as concluded for, and with expenses.”

The defender pleaded, inter alia—“(2) The defender is not liable for any alleged overpayments for any period beyond forty years. (3) The decree of approbation and valuation of 1792 having been withheld, notwithstanding the orders of the Court to produce the same, so as to fortify it against reduction by concealing it for the period of the long prescription, the pursuer is barred from claiming any overpayments which were only made on the assumption of the decree being invalid; or separatim, is barred from insisting on any such payments for the years prior to 1844, or at all events prior to 1832.”

By interlocutor of 18th December 1886 the Lord Ordinary ( Kinnear) sustained the second plea-in-law for the defender, and granted leave to reclaim.

“ Opinion.—The pursuer has made overpayments under interim schemes of locality from 1812 to 1881, and he brings this action to recover from the defender as an underpaying heritor her proportion of the overpayments. The defender admits her liability to account for underpayments for forty years before the date of the action. But she maintains, on the authority of Sinclair's Trustees v. Campbell, decided in the House of Lords 5 R. (H. of L.) 119, that the pursuer's claim to recover for underpayments before that date is cut off by prescription. She also maintains that apart from prescription the pursuer is barred by the conduct of his predecessors from insisting on his claims for the period prior to 1844. But whatever weight may be ascribed in considering the plea of prescription to the conduct which is said to create a bar, it does not appear to me that apart from prescription it affords a sufficient answer to the pursuer's claims. It appears that in 1629 the teind of the lands in the parish of Lhanbryde were valued by the Sub-Commissioners of Elgin; that in 1792 the Earl of Fife obtained a decree of approbation and valuation in terms of the report, notwithstanding that in the meantime he had been paying stipend in excess of the valued teind. It is argued for the defender that if this decree of approbation and valuation had been founded on in the localities before it had been fortified by prescription it would have been seen to be a bad decree by reason of prior dereliction, and must therefore have been reduced. It is alleged therefore that it was purposely withheld till 1844, when it was for the first time produced and founded on in the locality then pending. But now that it has been brought forward it is admittedly a good and valid decree, and since all inquiry into the grounds on which it is said that it might once have been challenged is now excluded by prescription, it must be assumed that is was a good decree from the first. Even if it were challengeable the defender had at no time any title to challenge it, and she cannot assume that it could or would have been disputed by the Officers of State or the minister who were parties to the proceeding in which it was pronounced. She does not maintain that the pursuer is barred from founding upon his decree as fixing the true measure of his liability, and indeed this is already determined in his favour by the approval of the final scheme in which it has received effect. If she is not in a position to plead prescription, therefore, I am unable to see any ground for maintaining that the decree of valuation, and the decree of locality following upon it, are not to receive effect for the purpose of adjusting accounts between the pursuer and the other heritors as well as for the purpose of fixing their respective liabilities to the minister for the future.

The question therefore comes to depend upon the validity of the pursuer's plea that the dependence of a process of locality does exclude prescription. This appears to me to be a question of great difficulty in the present state of the decisions, but I am unable to find any solid ground for distinguishing between the present case and that of Sinclair's Trustees v. Campbell as decided by the House of Lords.

In that case the House of Lords held that the long prescription barred any right to recoupment which had accrued to an overpaying heritor prior to the period of forty years before he insisted in his claim for repetition. It is true that in so holding the noble Lords who took part in the judgment did not expressly overrule the decision in the Marquis of Tweeddale v. Weatherstone, 12 S. 1, which is clearly undistinguishable from the present case. But I think it manifest from the reasoning upon which their judgment proceeded, that, with the exception perhaps of Lord Gordon, they would have concurred in formally overruling that decision if they had thought it necessary to do so. I think they disapproved of the doctrine on which the judgment of the Court of Session was based, and that they intended by their decision to give effect to a contrary doctrine.

It is true that there is a marked distinction in fact between the position of the underpaying heritor in that case and the position of the defender. There were two successive proprietors against whom a claim was made for repetition of overpayments of stipend—General Campbell Fletcher's Trustees and Mr Andrew Fletcher—and the first of these might probably have been relieved without touching the question of prescription, for the House of Lords thought that they had not been duly cited, and had not been

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parties to the process of locality. But the second was admittedly well cited, and had taken part in the process by voting in the election of a common agent. But then he had ceased to be a heritor by the sale and conveyance of his lands in the parish, for forty years before the claim for repetition was brought forward, and the Lords undoubtedly attached great importance to the consideration that he had thus become a stranger to the process of locality before the establishment of the liability of his lands for stipend which gave rise to the claim. But I do not think that they intended to decide that, independently of prescription, the mere fact of his having sold his land during the dependence of a process of locality would relieve an underpaying heritor of his liability or deprive an overpaying heritor of his right to an accounting when the true rights of parties had been ascertained. It is clear that it could not be so held consistently with the principle on which the right to an adjustment of accounts is based. And there is nothing in the decision of the House of Lords to throw any doubt upon that principle, except as regards its operation to exclude prescription. It is true that some doubts were expressed—and similar doubts have been expressed in this Court—as to the accuracy of the hypothesis which traces the right to a judicial contract. But the doctrine itself does not appear to me to have been questioned. On the contrary, it is distinctly laid down in the opinion of Lord Selborne, where his Lordship says—‘It is settled by the law of Scotland that if one heritor pays a larger and another a smaller share of a minister's stipend, or of any augmentation thereof, than they were respectively by law liable to pay, the underpaying is liable in repetition to the overpaying heritor.’ And his Lordship goes on to quote what was said in Haldane v. Ogilvy, where it was ‘laid down that the claim of an overpaying against an underpaying heritor 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.”’ It would probably be more accurate to say ‘that their pecuniary liabilities had not yet been ascertained,’ than that they had been misunderstood. For although there may be cases where a heritor has paid too much or too little, because he has misunderstood his rights or liabilities, the general rule is that payments under an interim scheme are made provisionally, on the assumption that the shares in which the burden of stipend ought to be borne by the various heritors have not yet been determined. The law may reasonably impute to a heritor a knowledge of his liability for teind, for that depends upon his own right alone. But his proportionable liability for stipend within the full amount of his teind depends upon the liability of others, of which he can know nothing until a scheme of locality has been adjusted. The underpaying heritor therefore is not in the position of a debtor who has paid too little in the belief that he was paying according to his liability, but of a contributor to a common fund who has paid provisionally in the knowledge that the true amount of his share of the burden remains to be ascertained. If it turns out when the proportional liabilities of all the heritors are determined that he has paid too little, it follows that under the provisional arrangements of the interim scheme his debt to the minister has been paid by those of the heritors who have paid too much. And it appears to be implied in the very nature of the process that he must reimburse those who have paid his debt. Lord Selborne observes in a later part of this opinion that the claim which thus arises to the overpaying against the underpaying heritor is one ‘which arises in contemplation of law, and is constituted as a legal cause of action at the time when each overpayment takes place.’ But if this be so, it seems impossible to hold that the mere fact of his having sold his land before a final locality had been adjusted can relieve him of a debt or deprive him of a claim which had already accrued.

It would appear to me, therefore, that the importance which was attached in the House of Lords to the fact of the underpaying heritor having sold his land arises less from any aid which it could afford to the plea of prescription, than because it served to meet the argument that was founded upon a supposed contract between the heritors. And accordingly it is with reference to this argument that the Lord Chancellor observes that the heritor who had sold had thenceforth no power over the litigation, and no means of expediting it. But the question still remains whether, assuming a debt to have accrued with each year's underpayment, the overpaying heritor's right to repetition will; be barred by the lapse of the period of prescription. And the House of Lords has decided that question in the affirmative. But it could not be so decided without rejecting the only ground on which the opposite doctrine had previously been maintained. The ground, as I understand it, is that notwithstanding that a debt had in fact been incurred with each yearly overpayment, it could not be known that it had been so incurred until the final locality had been approved of. Till then it was thought to be impossible for the overpaying heritor to bring this action, because it could not be known that he had in fact overpaid. It was supposed therefore that there was a non valentia agere during the whole period of the dependence of a locality which necessarily interrupted the running of prescription. This is a difficulty which applies just as clearly and directly to the case of a heritor who has sold during the progress of the locality as to a heritor who still retains his land when the locality is brought to an end. But it is a difficulty which was fully before the House of Lords in Campbell v. Sinclair, and it was held to be no sufficient reason for excluding the plea of prescription. It appears to me therefore to have been decided by the House of Lords that the dependence of a process of locality does not operate to bar prescription.

But if prescription is pleadable against such a claim as the present, it appears to me that this is a very favourable case for maintaining the plea. The first process of augmentation was raised in 1812, and the heritors were appointed to produce their rights and valuations on the 25th of June 1814. And yet it was not until July 1844 that the Earl of Fife produced the valuation of 1792, and protested that the whole

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amount of his valued teind having been exhausted he was liable for no part of the augmentations either under the interim schemes of 1814, 1824, or 1842. During the whole time between 1814 and 1844 he had been paying on the footing that his teinds were not valued, and yet he must have known of the existence of his valuation, and no reason can be suggested to account for his withholding it. He allows forty years more to pass before he brings his action, in which he seeks repetition with interest of annual payments extending over a period of seventy years. It is said that the defender cannot complain of the delay, because she and her predecessors might have pressed on the proceedings in the locality. But the delay which followed the production of the valuation would appear to have been caused by a protracted litigation between Lord Fife and the Crown. The defender had no part in that litigation, and no power to expedite the proceedings.

In these circumstances I think she is fairly entitled to say that after the lapse of forty years from the production of the valuation, all claim for repetition of overpayments made before that date must be presumed to have been abandoned, unless it can be maintained against her that that presumption is excluded by the dependence of a process of locality which bars prescription. But that cannot in my opinion be maintained, since the contrary is decided by the House of Lords in Campbell v. Sinclair.”

The pursuer reclaimed, and argued—That his claim against an underpaying heritor was one of debt, and so that he was entitled to recover the sums which his predecessors had overpaid from the underpaying heritors or their representatives. There was here a series of persons remaining in the locality all through, and therefore liable in payment. Upon that account the principle of the decision in the case of Sinclair's Trustees v. Campbell, 5 R. (H. of L.) 119, did not apply. The question of prescription did not enter into the present question at all, as it ran from the date of the final decree, which was May 1882. Lord Fife in this process of locality was non valens agere, as it was out of his power to force on the locality. In the case of Weatherstone v. Marquis of Tweeddale, Nov. 12, 1833, 12 S. 1, the judicial contract was the basis of the judgment, and until that case was overruled the principles there laid down must hold, and were decisive of the present question.—See also Wishart and Others v. City of Glasgow Bank, July 19, 1879, 6 R. 1341; Bell's Principles, sec. 627; Ersk. iii. 7, 36.

Replied for the respondent—The present question was decided by the House of Lords in the case of Sinclair's Trustees, which had overruled the case of Weatherstone. It was impossible these two cases could stand together, otherwise there would be a general rule laid down applicable to such cases, and also a general exception. The mere circumstance that a heritor sold his lands and left the parish during a process of locality would not free him from liability, because he was a party to the contract when the locality commenced, and the lapse of forty years would not affect such a case—the heritor leaving would still be liable for underpayments. If a creditor neglected to press his claims for forty years, he could not be heard to plead hardship if he lost his rights. If prescription could not begin to run until the date of the final locality, then the judgment in the case of Sinclair's Trustees was wrong.

At this stage of the argument their Lordships, by interlocutor of 17th June 1887, remitted to the Teind Clerk “to report generally the course of proceedings in the locality or conjoined localities of St Andrews Lhanbryde, during the dependence of which the alleged overpayments of stipend were made, and specially ( first) to what cause or causes is to be ascribed the long delay which occurred in adjusting a final scheme of locality; and ( second) whether there were overpayments of stipend by the Earl of Fife prior to the decree of approbation sufficient to infer dereliction of the sub-valuation of his teinds.”

On 16th July the Teind Clerk lodged his report. In his opinion the time which elapsed between the date of the summons and the date of the modification when the augmentation was granted in each case was not unusually long. The same comment fell to be made with reference to the period which elapsed between the date of the modification and the date of the interim locality in each case. He was further of opinion, from the various documents in the different localities, that the Earl of Fife's agents were well aware of all that was going on from the raising of the summons in 1812 down to 1825; that they had numerous opportunities to contest the overpayments that were being made, but that they were unwilling to enter into a discussion which would have involved the production of the decree of approbation of 1792. With reference to the two points upon which the Court especially desired the opinion of the Clerk of Teinds—( First) As to what causes were to be ascribed the long delay which occurred in adjusting a final scheme of locality, the reporter submitted that “the delay must be chiefly ascribed to the heritors in not producing their rights to teinds and valuations thereof in the first action. Had these been produced, all questions between the Crown and the heritors, and also the liabilities of the individual heritors, might have been settled in the first action within the seven years that action was asleep. When the discussion between the Crown and the Earl of Fife took place in the second action, the chief points in discussion were settled within five years, and the remaining question might have been settled within two years. It is true the Crown did not press the objections which had been made in 1824, but the heritors nevertheless continued to pay their shares of stipend, and in the case of the Earl of Fife to make a large overpayment in the knowledge that the decree of approbation of 1792 was in existence, and fixed the teinds at a much smaller quantity than was being paid. None of the heritors were so much interested in the rectification of the locality as the Earl of Fife, as appears from the statement produced, and yet it was not till 1844 that the decree of 1792 was founded on. With so much knowledge of the valuation shown in the common agent's account it is thought the delay in its production may fairly be attributed to an unwillingness to found upon the decree during the currency of the forty years from 1792 to 1832.” With reference to the second of the points remitted for the consideration of the Clerk

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of Teinds, viz., as to whether there were over-payments of stipend by the Earl of Fife prior to the decree of approbation sufficient to infer dereliction of the sub-valuation of his teinds, the reporter was of opinion that there was good ground for challenge of the decree of approbation of 1792 if it had been founded on within forty years of its date. He further added—“With reference to the approbation of 1792 it is only fair to state that the proceedings in that action were not unduly hurried. The action was raised in 1784, and it related to the parishes of Alves, New Spynie, Elgin, St Andrews and Lhanbryde, Urquhart and Spey mouth, the ministers of which along with the Crown and other titulars were called, None of the ministers entered appearance, and no defences were lodged. From the proceedings, however, it appears that the Crown at various times requested delay, and in the end did not oppose decree on 21st November 1792. At that time, however, it had not been finally settled that the ministers had a right to future augmentations. The decisions of the Court of Teinds had been adverse to such claims, except in very special cases, and it was not till the year 1808 that all doubt was removed by the decision of the House of Lords in the Prestonkirk case, which was followed by the Act of same year regulating augmentation proceedings. In considering the question of dereliction, it may be mentioned that it was not material in what kinds of victual the teinds were valued or allocated. For teind purposes between the years 1717 and 1792 the standard conversion was £100 Scots money for all kinds of victual. It is also proper to mention that where stipend was allocated in victual it was paid by the delivery in kind of the victual allocated. This mode of payment continued and is still applicable to cases which have had no modification since the Act of 1808 was passed. By that Act, however, it was provided that stipends augmented thereafter, though modified in victual, should be paid according to the highest fiars' prices of the county. In this case no doubt the old style of payment by delivery would be continued till the minister obtained his new interim locality, the new mode of payment being alluded to in the entry from the common agent's account before referred to. It seems therefore unnecessary to indicate in a money form the excess in value of stipend over the teinds between the years 1717 and 1792, when the overpayment took place.”

Parties were further heard on this report.

Argued for the reclaimers—The position of the pursuer was that he held a decree of approbation, fortified by prescription, against which an allegation of something almost amounting to fraud on the part of the pursuer was made by the defender. This allegation, however, was not substantiated by the researches of the Teind Clerk, while the correspondence produced showed that, though not founded upon in the process of 1812, the decree of approbation was undoubtedly referred to. It was the duty of the defender's predecessors to have got this decree set aside (as they had due notice of its existence) before it was fortified by prescription. The pursuer was not interested in the interim schemes, as he counted upon effect being given to the decree of approbation in the final scheme, and he claimed now to be placed upon the 1792 valuation.

Replied for the respondent—The pursuer was personally barred by his actings from succeeding in his present demand. He paid from the first as if there had been no valuation, and by so doing the defender's predecessors were prejudiced. The aim of the pursuer was to obtain a certain advantage by concealing this sub-valuation until it could not be challenged. This was not a case in which the defender should be called upon to pay for the advantage which the pursuer had by this means obtained; at any rate, the defender was entitled to absolvitor for the period prior to 1844— Kinloch v. Bell, Feb. 12, 1867, 5 Macph. 360.

At advising—