Scottish Court of Session Decisions

John Davidson, heritable proprietor of the lands of Adderstone and Adderstoneshiels and of the teinds thereof, pursuer, brought an action against the Reverend John Stuart, minister of the parish of Kirkton, in which the said lands were situated, defender, concluding in the second place for decree of declarator and interdict to the effect that “the pursuer has validly surrendered to the defender and his successors in office as ministers of the said parish of Kirkton the teinds, both parsonage and vicarage, of the said lands and others belonging to the pursuer and hereinbefore described, and that at the said sum of £96 sterling per annum, being the just, constant, and true value of the teinds, parsonage and vicarage, of the said lands and parts, pendicles, and pertinents thereof, and that as at the 19th day of February 1917, or at such other date as may be found by our said Lords in the course of this process to be the date of said surrender, and that the pursuer is bound only to make payment to the defender and his successors in office of the sum of £96 sterling per annum in full of all stipend exigible by them from the pursuer or his successors in the said lands and others, and that from and after the said date; and the defender and his successors in office ought and should be interdicted, prohibited, and discharged from charging the pursuer or his successors in the said lands upon a decree of locality of the Court of Teinds, dated 30th October 1903, of the stipend of said parish of Kirkton, or upon any future decree of locality of the stipend of said parish, for any sum in excess of the sum of £96 sterling, or from otherwise seeking to recover from the pursuer or his successors in the said lands any sum in excess of the said sum of £96 sterling per annum as stipend due by him or them in respect of the said lands.”

The pursuer pleaded, inter alia—“1. The pursuer's teinds amounting to the sum of £96, the defender is not entitled to any sum in respect of stipend over and above said amount. (2) Separatim, the pursuer having validly and effectively surrendered the teinds of his said lands is not bound to pay to the defender any sum in excess of the valued amount of said teinds, and decree of declarator and interdict should be pronounced as craved.”

The defender pleaded, inter alia—“4. The pursuer cannot be heard to propone the conclusions second written unless and until he has first ( a) reduced the existing decreet of locality of the stipend of Kirkton, and ( b) provided the defender at the pursuer's expense in a new process of locality wherein the due and full stipend modified to the cure may be fully allocated on and against the existing free teinds of the parish. 5. The pretended surrender being inept in form, et separatim of no force, avail, or effect till the authority of the Court of Teinds is interponed in a proper process, the first part of the second conclusion should be dismissed.”

On 19th March 1918 the Lord Ordinary ( Anderson) sustained the pursuer's second plea-in-law, and granted decree in his favour in terms of the second or alternative conclusion of the summons, with interdict corresponding thereto.

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Opinion, from which the facts of the case appear:—“This is an interesting and important case. The pursuer is heritable proprietor of the lands of Adderstone and Adderstoneshiels, with the teinds thereof, lying within the parish of Kirkton and county of Roxburgh. These lands were acquired by the pursuer from Professor Pringle Pattison in June 1910. The defender is the minister of the parish of Kirkton.

In the year 1903 the defender applied to the Court of Teinds for an augmentation of stipend. By decree of modification and locality, which was approved final on 3rd March 1905, the Court of Teinds modified the constant stipend of the parish at 22 chalders victual and £8, 6s. 8d. for communion elements, and localled upon said lands of Adderstone and Adderstoneshiels, out of the said gross stipend, 46 bolls odds of meal and barley and £1, 4s. 4d. of money sterling. On the basis of the fiar prices prevailing at the date of said decree of locality the result of the modification and locality was to leave £44 or thereby of free teind in the parish, of which £15 or thereby applied to the said lands of Adderstone and Adderstoneshiels.

One of the effects of the present war has been to increase abnormally the prices of meal and barley. The result has been that heritors are being called upon to pay stipends which have increased enormously, and are increasing, out of an income which in the majority of cases has either remained stationary or has even diminished. In the ordinary case the heritor has his land let on agricultural lease. Unless in the rare case where the rent is payable in grain a landowner is not benefiting in the shape of increased rents by the enhanced prices prevailing for farm produce. Other burdens on proprietors, such as cost of repairs, wages of estate workmen, public burdens, and interest on borrowed money, are all rising. Rental of a non-agricultural character, e.g., shootings, fishings, and mansion-houses, has either ceased to exist or has been greatly reduced. A few figures will show the extraordinary revolution which has been effected by the war on the ecclesiastical finances of this small parish. Prior to the date of the last modification in 1903 the whole teinds of the parish (the sums are stated in round figures) were valued at £353, the stipend was £264, the free teind £88. A modification of three chalders was granted, absorbing about one-half of the free teind, and raising the stipend to nearly £300. The value of the chalder was then £13-£14. The value of the chalder on the fiar prices for 1917 was £32-£33. The stipend for crop and year 1916 was in money value £621, which had to be met out of a teind of £353. Thus the defender's stipend, calculated on the basis of present fiar prices, greatly exceeds in amount the value of the teinds of the parish. The pursuer paid the stipend for the year 1914, although it was in excess of his teinds, the excess being only slight. The difference was so serious in the case of the year 1915 that although the pursuer paid the stipend for that year he resolved to take steps to meet the anomalous situation which had arisen. Accordingly in the year 1916 he raised before the Court of Teinds an action of valuation of his teinds, in which he obtained a decree of valuation of teinds on 23rd November 1916. By said decree it was found and declared that the rent, stock, and teinds of said lands was of the constant yearly value of £480 sterling, one-fifth whereof for teind, parsonage and vicarage, was £96 sterling, which sum of £96 was declared to be the value of the teinds to be paid in place thereof in all time coming.

The next step taken by the pursuer was to send a letter to the defender on 19th February 1917 intimating that he surrendered the teinds of his said lands to the defender and his successors in office. On 12th March 1917 the pursuer, in corroboration of said letter, and without prejudice thereto, executed and delivered to the defender a deed of surrender of the teinds of his said lands.

The pursuer had on 1st March 1917 (for the purpose of meeting the stipend due for year 1916) sent to the defender a cheque for the said ascertained yearly value of his teinds, to wit, £96, less income tax, £19, 0s. 10d.=£76, 19s. 2d., but the cheque was returned, and on 7th March 1917 said sum was consigned in bank in the names of the pursuer and defender.

Notwithstanding the said tender and the deed of surrender the defender has intimated a demand for the stipend for the year 1916, being £191, 5s. 5d., less income tax, £37, 18s. 8d.=£153, 6s. 9d., and has threatened to charge the pursuer for payment of said sum.

In these circumstances the pursuer on 25th January of the present year raised this action.

It would be startling if the pursuer had no legal remedy for the extraordinary situation created by the war. By the law of Scotland the stipends of ministers of the Established Church are payable out of the teinds of heritable estates. An augmentation of stipend can only be granted if there is free teind in the parish out of which the increased award can be met. The Court of Teinds is a statutory creation which has jurisdiction only over teinds, and in particular has no jurisdiction over stock. Hence if the free teind has been exhausted there can be no enhancement of stipend. There is no authority for enforcing payment of stipend wholly or partially out of stock. If there is no free teind, even the small sum necessary for the provision of communion elements cannot be awarded out of stock— Wilkie, M. 2493; Buchanan, 4 Macph. 1023. The decree of the Court of Teinds modifying and localling a stipend makes all this quite plain. In the present case the decree ordains the pursuer's predecessor to pay the localled amount of stipend ‘out of the teinds’ of his lands. As the total annual value of these teinds has been found to be £96, the demand of the minister for payment of £191, 5s. 5d. implies that the pursuer is asked to pay to the defender a sum of nearly £100 not from teinds but from stock.

Prima facie there is no justification in law for this demand in so far as it exceeds the full value of the teinds.

The defender's counsel did not seriously

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contend that there was no legal remedy open to the pursuer to meet the existing state of matters, but they joined issue with their opponents on two points—(1) It was maintained for the defender that the first declaratory conclusion of the pursuer's summons was incompetent; and (2) While the defender conceded that it was competent to the pursuer to surrender his teinds, and so determine his liability under the decree of locality, it was contended that the pursuer had not followed the proper procedure in this matter of surrender. The defender's counsel contended generally that surrender of teind was only competent if the surrender was accompanied by rectification of the locality. As the arrangement made by the Court for the payment of stipend has been dislocated by the surrender, it was maintained that the pursuer's duty was to put matters right by procuring a new locality. It thus appears that rectification implies reduction of the subsisting decree of locality in order to prepare the way for a new scheme of locality. There are only two ways of getting rid of subsisting decrees of locality—(1) By a process of augmentation, which results in a new decree of locality superseding the former decree; and (2) by reduction of the subsisting decree in a process for rectification of the locality. The general contention of the defender for rectification thus expands itself into these propositions which were maintained—(1) That surrender of teinds must always be preceded or accompanied by reduction of the subsisting decree of locality; (2) that surrender must be made in an open locality; and (3) that the surrender must be a judicial step, effected by minute of surrender, which requires a judicial imprimatur to make the transaction complete.

The contention of the pursuer's counsel on the other hand was that surrender of teinds may take place at any time, whether the locality is or is not open, and may be effected in any way adequate to express and carry out the heritor's intention to surrender. It was argued for the pursuer that where the free teind, as is the case in the defender's parish at the present time, was exhausted, rectification was an impossibility and reduction of the subsisting decree a futility.

It was not suggested by the defender's counsel that there was any other mode of rectification save one, namely, by the transference to other heritors of the loss sustained by the minister through the pursuer's surrender, and it was not contended that this burden could be laid on anything other than unexhausted teind.

The question I have to decide is which of these conflicting views is right.

The form of the pursuer's action is that of declarator and interdict, and he has proponed two alternative declaratory conclusions. These conclusions have different practical consequences. By the first declaratory conclusion the pursuer proposes that he should remain titular of the teinds, but that his liability under the subsisting decree of locality should be limited to the full value of his teinds, to wit, £96 per annum. I do not propose to determine whether or not this conclusion has legal justification. It is conceded that there is no authority for granting it, and on a subject so technical as that of teinds I conceive that it is my duty to proceed on the lines of settled practice and decision. It may be that the course suggested by the pursuer in this conclusion of the summons has never been sanctioned because of the practical consequences which would ensue. Under this conclusion the heritor would appear to obtain all the actual and prospective advantages of the transaction and the minister all the disadvantages. While the minister under present conditions would be deprived of a part of the stipend which the Court had granted him, he would not on the return of normal conditions reap any compensating gain. The heritor would then be restored to prewar conditions and have in hand a certain amount of free teind. It would appear to be equitable that if the minister is to suffer now he should be placed in a position wherein he might have a chance at a later date of recouping himself for present loss. It may be that considerations such as these determined the practice sanctioned by the Court in such circumstances as the present, which was to compel the heritor to surrender his teinds out and out to the minister.

By a surrender the minister becomes titular of the teinds, and for all time coming he and his successors are placed in a position to draw the full annual value of the teinds. By this method, if there is present disadvantage, there may be prospective compensating advantage.

I propose therefore to refuse the first declaratory conclusion proponed by the pursuer, and to confine my attention to the second or alternative conclusion which is suggested.

It being common ground that the pursuer can meet the present situation by a surrender of his teinds, the only matter of dispute between the parties is as to the proper method of making this surrender. Is it then an essential preliminary to a surrender of teinds that the decree of locality should be reduced and the surrender made in an open locality?

On principle the most formidable consideration from the defender's point of view is that there is extant a decree of Court ordaining the pursuer to pay each year the value of a certain quantity of victual. But the terms of the decree are not absolute. They are qualified to this extent that the annual payment has to be made out of teinds. Under our former practice whereby stipends were modified only and were not allocated, any individual heritor in the parish might be charged to make payment of the whole stipend. But his liability was limited by the value of his teinds (Erskine ii, x, 47), and if the amount demanded exceeded the value of the teinds, a suspension of the charge to the extent of the excess might be brought. After interim decrees of locality were introduced under A.S., 5th July 1809, the same remedy was open to any heritor if the stipend allocated against

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him by interim decree exceeded his valued teind— Macartney, 4th March 1817, F.C. If, then, it was sufficient, to elide liability, merely to suspend the charge and the decree so far as supporting an improper charge, it would seem to follow that reduction of the decree was not essential in order to counter an unjustifiable demand made by the minister. If a suspension of a charge were accompanied by a judicial surrender of the whole teinds, it seems to me that the whole charge would fall to be suspended, and the heritor would thus get rid of his whole liability under the decree of locality without having to reduce it. So far as principle is concerned I do not see why an heritor should not at any time, and whether or not the locality is open, take up the position that instead of paying stipend from his teinds he will surrender these to the minister and thus enable the minister to pay his stipend therefrom. It was maintained on behalf of the defender, on principle, that equitable considerations required that the heritor surrendering should rectify the effects of his surrender. But if the heritor has a legal right to surrender in order to elide his liability for stipend, I do not see that he is responsible for the consequences of this legal act. In the case of the Earl of Minto, 1 R. 156, 11 S.L.R. 66, Lord Ardmillan, at p. 164, says—‘the heritor's act of surrender is not a challenge of the decree of locality, but the exercise of a right which does not imply an objection to the locality to be enforced by reduction, but rather a satisfaction of the decree by surrender.’ If surrender is really a satisfaction of the decree, these consequences which are destructive of the defender's contention seem to follow:—(1) That the surrender may be made at any time at which the decree of locality is being enforced by the minister; (2) That the surrender may be made in any way; and (3) That the minister has no further claim on an heritor who surrenders. The minister's claims against the heritor are limited by the terms of the decree of locality; if these claims are fully satisfied by the surrender of teinds, what legal justification is there for asking the heritor to do something more, to wit, to proceed to rectify the locality? On principle, therefore, I am unable to hold that it is a fundamental necessity in the matter of surrendering the teinds to reduce the decree of locality.

As regards authority, it is nowhere laid down that as a necessary step of procedure a surrender of teinds must be preceded by a reduction of the subsisting decree of locality. On the contrary, the weight of anthority appears to me to be against this contention. Prior to the Lamington case ( Mitchell, 24th January 1798, F.C., M. 14,827) a decree of locality obtained in foro was regarded as res judicata, and as such was not open to challenge by the heritor—Connell, i, 522. The case of Mitchell decided that ‘as the stock cannot be encroached upon it shall be optional to any heritor, instead of delivering and paying the quantity of victual and money stipend laid upon him, at any time to give up and pay in all time thereafter to the minister the whole of his valued teinds according as the same shall have been ascertained by his decree of valuation.’ In a number of later cases the subject of the surrender of teinds and the circumstances in which this could take place were considered by the Court— Dalgleish, M. 15,714; Eddleston case, M. voce “Teinds,” App. No. 13; Nenthorn case, ibid. in note to Eddleston; Fearn case, 21st November 1810, F.C.; Ogilvie, 5th June 1811, F.C.; Maxwell, 3rd July 1816, F.C.; Macartney ( cit.). In none of these cases is it suggested that reduction of the decree of locality is a necessary preliminary to an effective surrender; in all of them the Court held that the surrender might be made ‘at any time.’ No countenance is given to the view that surrender can only take place in an open locality, and that it requires the imprimatur of the Court to make it effective. The import of these decisions and a correct statement of the law is, in my opinion, contained in a note of Lord Ivory (No. 276) to Erskine, ii, x, 47, where this is said—‘An heritor whose teinds have been valued is entitled at any time to surrender his teinds at the valuation; and this however long he may have been in the custom of paying beyond his valued teinds, even though these payments have been made under the sanction of prior decrees of locality.’

In the case of Oswald, 14 Sh. 32, Lord Mackenzie said at p. 35—‘Suppose that a final scheme of locality had subjected an heritor in a certain sum, and he afterwards discovered a decree of valuation and produced it, and offered to surrender his teinds, that would be a complete protection to him if the valuation was admitted to be valid and regular.’ This appears to me to be a correct statement of the law, and if, after the word ‘discovered,’ the words ‘or procured’ be added, the statement of the law becomes complete. The contention of the defender that reduction of the decree of locality must be the first step in the surrender of teinds appears to me to be conclusively negatived by the decision in the Earl of Minto, 1 R. 156, where it was expressly determined (1) that it is not necessary for the heritor who desired to surrender his teinds to reduce the decree of locality; and (2) that the right to surrender being res merœ facultatis, could not be affected by the negative prescription.

It is doubtless the case that in special circumstances the duty of rectifying the locality may be thrown upon the heritor— Cameron, 7 Macph. 565; Duncan, 10 R. 332. The special circumstances in which rectification may have to be undertaken by the heritor appear to be these—(1) When the subsisting decree of locality has been challenged by the heritor on the ground that it has proceeded upon an erroneous valuation of his teind, and (2) when there is free teind available for rectification purposes. If it be the case that the heritor or his predecessor had failed to produce a valuation of the teinds when the stipend was being allocated, the subsequent rectification, proceeding on a correct valuation, would probably have to be made at the heritor's expense. It is to

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be noted that in the cases of Cameron and Duncan the heritors challenged the subsisting decrees of locality on the ground that these had proceeded on excessive valuation of their teinds, In the earlier stage of the litigation in the Cameron case—that reported in 7 Macph.—the question of surrender was not before the Court. Surrender was evidently resolved upon by the heritor at a later date and as a counter to the demand of the minister for payment of the amount of stipend which had been paid for the prescriptive period, and the report of the later litigation in this case ( 11 Macph. 292) shows that the Court recognised the surrender as an effective response to the minister's claim. In the present case the pursuer does not challenge the decree of locality. He does not complain of its terms, but only of its legal effect in circumstances which are abnormal and which were not foreseen when the decree was granted. It is true that stipend was localled on the pursuer's predecessor on a valuation of teinds of £98, 10s. 8d., which is slightly in excess of that determined by the Court in 1916. But I am satisfied that the pursuer would not have challenged the decree of locality on this ground, and would not have obtained a decree of valuation had this been his sole reason for doing so.

It is an essential condition of rectification that there should be available free teind, and at the present time there is none in the parish of Kirkton. The defender's counsel recognised the difficulty which the absence of free teind created, and was driven to suggest that the pursuer must, at all events, make an offer of rectification in order to make his surrender effective. I am not prepared to ordain the pursuer to offer to perform what cannot be performed.

If it be urged that surrender ought not to be sanctioned at the present time because under present circumstances rectification cannot be carried out, the answer to this contention is to be found in what was laid down by the judges in the cases of Mitchell and the Earl of Minto, where the present situation is foreshadowed. In the report of the case of Mitchell in Morison, at p. 14,830, a ‘majority of the Court’ laid it down that if the fiar price of the grain which the heritor paid to the minister should ever come to exceed his whole money teind, he will be entitled to the alternative of giving it to the minister in place of the grain allocated upon him. And in the case of the Earl of Minto, the Lord President says, at p. 162, ‘if there is a final decree of locality, giving a stipend to the minister in victual, and a decree of valuation valuing the teinds in money, it may happen that the victual stipend will be in excess of the valued teind at one time and not at another. It may not be in excess of the valued teind at the time that the augmentation is given, and yet afterwards, either within the years of prescription or beyond the years of prescription, it may come to be in excess of the valued teind by a rise in the price of victual. It is obvious therefore that this right of surrender, which is here very properly said to be in the option of the heritor at any time, is a thing which the heritor may have an interest to do at one time and not at another. But it may not be his interest to do it at once after the final decree of locality is pronounced, because the victual stipend may not be above the valued teind, or may be so slightly above it that it is not worth his while to make a surrender. At a future time, either within or beyond the years of prescription, as I said before, it may be his interest and very worth his while to make a surrender.’

Suppose that all the heritors in this parish surrendered their teinds to the minister. This is a not unlikely event. It is a small parish in which there are only four stipend-paying heritors, of whom another, in addition to the pursuer, has surrendered the teind. If the minister was made titular of all the parochial teinds could he claim anything more from any heritor? I do not see how he could succeed in any such claim. The situation at the present time appears to me to be the same as if this complete surrender had been made.

The pursuer's counsel maintained, in my opinion rightly, that the pursuer had no available ground on which to sue reduction of the subsisting decree of locality. To reduce the existing decree, it was argued, would be a futility. It would be futile to do so, so far as the heritor's interests are concerned, as there is no known procedure in the Teind Court for diminishing a stipend, and so bringing it below the teindable rental at a current rate of fiar prices. It would also be futile so far as the minister's interests are concerned, for there is no free teind which could in a new locality be saddled with the loss resulting to the minister from the pursuer's surrender of teind.

I regard the cases of Mitchell and the Earl of Minto as being the vital authorities in the determination of this case, the former as conclusively founding the practice as to the surrender of teinds, the latter as explaining authoritatively and convincingly what the practice was which the case of Mitchell had settled.

The defender's counsel founded on the Act of 1808 (48 Geo. III, cap. 138, sections 8, 9, 10, 11, and 14), and A.S. of 20th June 1838, section 3. I am of opinion that no assistance in determining the question which I have to decide is obtainable from these enactments. Section 8 of the Act of 1808 provides that stipends which shall be augmented shall be wholly modified in grain or victual, unless where it shall appear necessary; section 9, that money stipends shall be converted into grain or victual according to the fiar prices of the county on an average of seven years; section 10, that where there are no fiars applicable in the county where the parish is situate, the fiar prices may be taken from two or more adjoining counties; section 11, that ministers are not to receive stipend in kind, but to receive it in money according to the fiar prices of the grain into which the same shall have been modified; and section 14, that the right of surrendering teinds is not to be taken away by anything enacted in the statute.

The A. S. of 1838 deals solely with interim

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schemes of locality, and therefore is not directly applicable to the circumstances of the present case, there being a subsisting final decree of locality. The third section, which was specially founded on, makes it competent for the Court in certain circumstances to saddle an heritor with the expense of preparing a new interim scheme of locality. In my opinion it did not require an Act of Sederunt to confer this discretionary power as to expenses which is inherent in the Court. The argument based on this section was, that if an heritor might be penalised when an interim scheme of locality was dislocated, the same rule ought to be applied when a final decree of locality has been subverted. This might be conceded without helping towards the decision, the circumstances being such as in my opinion do not warrant the pursuer being made responsible for the preparation of a new scheme of locality.

A subsidiary question was argued as to the stipend for crop and year 1916, which the defender maintained was vested in him at Michaelmas 1916, prior to the pursuer's decree of valuation. The question is what was vested in the defender at that date? According to the law affecting stipends and teind nothing in excess of the value of the pursuer's teinds could vest in the defender. Hence no larger sum than £98, 10s. 8d., the proved value of the teinds on which the pursuer's share of stipend was localled, could ever vest in the defender. Moreover, the amount due as stipend was not fixed until the spring of 1917, by which time the pursuer not only had his decree of valuation but had made a surrender of his teinds. I am therefore of opinion that the surrender of teinds in February 1917 applies to and affects the stipend for crop and year 1916.

At the conclusion of the debate the defender's counsel for the first time challenged the form of the deed of surrender of teinds which the pursuer had executed. As this matter has not been raised on record I am of opinion that it is not properly before the Court. So far as I can judge from what is before me the deed of surrender is expressed in terms which are habile and adequate to effect the intention of the pursuer to surrender his teinds to the defender. I am further of opinion that the date on which surrender was made was 19th February 1917, when the pursuer by letter intimated that the teinds were surrendered. What followed by way of granting a formal deed was merely executorial of the surrender which had then been made.

On the whole matter I propose to sustain the pursuer's second plea-in-law and grant decree in his favour in terms of the second or alternative conclusion of the summons, with interdict corresponding thereto.

In addition to the authorities I have referred to, the following were cited:—Statutes, 1617, c. 3; 1633, c. 15; 1633, c. 17; 1661, c. 61; 1690, c. 30; 1693, c. 23; Maxwell, June 2, 1813, F.C.; Madderty case, July 9, 1817, F.C.; Weatherstone, 12 Sh. 1; Gray, 16 Sh. 92; Learmonth, 20 D. 190, and 21 D. 890; Earl of Rosslyn, 4 Macph. 140; Kinloch, 5 Macph. 360, at 367; Colquhoun, 6 Macph. 105, and 11 Macph. 919; Thomson, 7 Macph. 99; Campbell's Trustees, 5 R. (H.L.) 119; Burt, 5 R. 445.”

The defender reclaimed, and argued—In the abstract stipend could only be paid out of teind and the Teind Court had no jurisdiction over stock; yet a heritor might have to pay more stipend than the value of his teind—Connell on Tithes, vol. i, pp. 516, 518, and 523. When the decree of locality was allowed to become final it was res judicata and was the fixed rule of payment—Connell on Tithes, vol. i, pp. 517, 519, and 520, referring to the Dunichen case. At the end of the eighteenth century surrender was introduced as an equitable remedy, and it was introduced by the Court in the Lamington case— Mitchell v. Baillie, 24th January 1798, F. C., M. 14,827. That equitable remedy was allowed only under conditions the general purpose of which was to protect the minister against a loss caused by the disorganisation of the existing locality through the surrender. Those conditions were that the surrender must either be in an open locality, or if in a closed locality must be coupled with an offer to reduce the locality and rectify the disturbance of allocation caused by the surrender. All that was quite independent of the question whether or not there was any free teind. Under the older law a decree of locality could only be overturned on condition that the minister obtained his relief—Connell on Tithes, vol. i, p. 526. When surrender was introduced the same condition was attached—Connell on Tithes, vol. i, pp. 522–3. When there was a final decree of locality in force reduction was essential and was a solemnity— Dalgleish v. Heritors of Peebles, 1803, M. 15,714; Kinloch v. Bell, 1867, 5 Macph. 360, per Lord Barcaple, Ordinary, at p. 362, per the Lord Justice-Clerk (Inglis) at p. 368, Lord Benholme at p. 370, and Lord Neaves at p. 371; Cameron v. Chisholm-Batten, 1869, 7 Macph. 565, per Lord Benholme at p. 569, 6 S.L.R. 371; Chisholm-Batten v. Cameron, 1873, 11 Macph. 292, 10 S.L.R. 195; Weatherstone v. Marquis of Tweeddale, 1833, 12 S. 1; Duncan v. Brown, 1882, 10 R. 332, 20 S.L.R. 223; the Teinds Act 1808 (48 Geo. III, cap. 138), sections 8, 9, and 11; A.S. 5th July 1809, sections 2, 3, and 5; A.S. 20th June 1838; Elliot, Teinds, pp. 67 and 68. In the cases of Macartney, 4th March 1817, F.C.; Fearn, 21st November 1810, F.C.; Maxwell, 2nd June 1813 and 3rd July 1816, F.C.; Oswald v. Martin, 1835, 14 S. 32, and Gray v. Touch, 1837, 16 S. 92, the locality was open. In Common Agent of Eddlestone, 4th December 1805, F.C.; M., Appendix, voce Teinds, No. 13, the only question was whether the heritor whose surrender had led to a new augmentation being allowed should bear the cost of that process. The Earl of Minto v. Pennell, 1873, 1 R. 156, 11 S.L.R. 66, was a decision upon a question of the negative prescription. Further, and in any event, a surrender of teinds could not be effectively made by so informal a deed as in the present case. No surrender was valid unless and until it had received a judicial imprimatur. Even in such cases as Macartney ( cit.), where the surrender was

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founded on in a suspension, the Court's authority was interponed before the surrender became effective. Further, the stipend for the crop and year 1916 vested in the defender at Michaelmas 1916 and was unaffected by the pursuer's surrender—Ersk. Inst. ii, x, 54; Cameron v. Chisholm-Batten ( cit.), per Lord Cowan in 7 Macph. at p. 571. The following were also referred to-the Acts 1606, c. 8; 1612, c. 5; 1617, c. 9; 1621, c. 5; 1633, c. 17 and 19; 1661, c. 61; 1690, c. 30; 1693, c. 23; Thomson v. Earl of Zetland, 1868, 7 Macph. 99; Lord Elibank's Trustees v. Hope, 1891, 18 R. 445, 28 S. L. R. 295.

Argued for the pursuer (respondent)—The sole object of the process of reduction desiderated by the defender was the rectification of the locality so as to secure the minister from prejudice. In the present case that was impossible, for the loss which might fall upon the defender as the result of the present surrender could not be made up from the other heritors, for they were all paying stipend in excess of their teind. A heritor's liability for stipend was always limited to the amount of his teind— Morton v. Scott, 1625, M. 14,784; Kirk v. Gilchrist, 1629, M. 14,786, but owing to a rise in fiars prices it might easily happen that a heritor found that the amount of the stipend localled upon him exceeded the value of his teinds. To meet such a case the remedy of surrender was allowed. Its sole essential was that the heritor must give up irrevocably the whole of his teind. The right to surrender was not clogged with any condition that the heritor must reduce the existing decree of locality—that might be equitable in certain cases to protect the minister, and it was then in the discretion of the Court to impose that condition. Where there was no free teind, there was no authority for a reduction. Kinloch's case ( cit.) and Cameron's case ( cit.) were not authorities to the opposite for in them there was free teind. In the Lamington case ( cit.), which introduced surrenders, there was no hint that a reduction was an essential, neither was there in the cases of Dalgleish ( cit.), Eddleston ( cit.), Fearn ( cit.), Ogilvie, 5th June 1811, F.C., and Maxwell ( cit.). In Minto's case ( cit.) the opinions were in favour of the pursuer. The surrender might quite well be by way of suspension— Macartney ( cit.), Oswald ( cit.), Gray ( cit.). A reduction was appropriate only when there was some rectification to be effected which made the reduction necessary—juridical Styles, vol. iii, p. 230. The surrender might be quite informal, but if the letter was not sufficient there was a formal deed of surrender delivered to the minister and presbytery. That the record would not disclose the state of the teind and stipend unless the surrender was by formal registered deed was immaterial, for the Register of Sasines did not necessarily or usually disclose the state of the teind and stipend; that could only be ascertained by inspecting the receipts for stipend and the documents in the office of the Clerk of Teinds. Further, the stipend for crop and year 1916 was affected by the surrender in the present case; all that vested in the defender at Michaelmas 1916 was the stipend, whatever that might be. The stipend was not fixed till February 1917, when the fiars' prices were struck, and by that time the pursuer had made his surrender. The following were also referred to—Ersk. Inst. II, X, 47 and 54; Jackson v. Cochrane, 1873, 11 Macph. 475, 10 S.L.R. 290; Hutcheson v. Earl of Cassilis, 1664, M. 14,788.

At advising—