Scottish Court of Session Decisions

The Reverend Alexander Galloway, Minister of the parish of Minto in the county of Roxburgh, pursuer, brought an action in the Court of Teinds against the Earl of Minto, proprietor of the lands and barony of Minto and other lands in that parish, defender, in which he sought to have it found and declared—“( First) That under and by virtue of a decreet of modification, dated 8th February 1907, pronounced by our said Lords, as commissioners foresaid, in a process of augmentation, modification and locality raised at the instance of the present pursuer against the heritors of the parish

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of Minto, our said Lords modified, decerned, and ordained the constant stipend and provision of the minister of the kirk and parish of Minto to have been for last half crop and year 1906, yearly and in time coming, such a quantity of victual, half meal, half barley, in imperial weight and measure, as should be equal to three chalders of the late standard weight and measure of Scotland, in addition to the then old stipend and allowance for communion elements, payable the money stipend and communion elements at Whitsunday and Martinmas yearly by equal portions, and the victual betwixt Yule and Candlemas yearly, after the separation of the crop from the ground, or as soon thereafter as the fiars prices of the county of Roxburgh should be struck, and that in money according to the highest fiars prices of the county annually, and decerned and ordained the said stipend, as augmented, and allowance for communion elements to be yearly and termly paid to the pursuer and his successors in office, ministers serving the cure of the said kirk and parish, by the titulars and tacksmen of the teinds, heritors, and possessors of the lands and others, intromitters with the rents and teinds of the said parish, out of the first and readiest of the teinds, parsonage and vicarage of the same, beginning the first payment thereof for said last half crop and year 1906 at the term of Whitsunday 1907 as regards the money stipend and communion elements, and as regards the victual stipend between Yule and Candlemas, after the separation of the crop from the ground, or as soon thereafter as the fiars prices of the county should be struck, and so forth yearly and termly in all time coming: ( Second) That by decree of locality, dated 18th June 1908, our said Lords localled on the defender's said lands of Cockersheugh, Minto, Newlands, and Hassendean Bank, the quantities of victual following, viz., ( a) for the lands of Cockersheugh 3 bolls, 3 firlots, 1 peck, 2 3 8 lippes; ( b) for the lands and barony of Minto 102 bolls, 2 firlots, 3 pecks, 3 2 8 lippies; ( c) for the lands of Newlands 7 bolls, 0 firlots, 0 pecks, 1 5 8 lippies; and ( d) for the lands of Hassendean Bank 34 bolls, 0 firlots, 1 peck, 2 1 8 lippies, half meal, half barley: ( Third) That the proportion of the stipend of the said parish of Minto payable by the defender for crop and year 1917, according to the said decreets of modification and locality, and to the fiars prices struck for the county of Roxburgh for that year is as follows—( a) for the lands of Cockersheugh £16, 9s. 10 1 2d.; ( b) for the lands and barony of Minto £445, 0s. 8d.; ( c) for the lands of Newlands £30, 1s. 11 3 4d.; and ( d) for the lands of Hassendean Bank £124, 8s. 5d., making together the sum of £616, 0s. 11 1 4d.: ( Fourth) That the said sum and the defender's proportion of stipend for the said crop and year is unpaid and unsatisfied: ( Fifth) That the defender is not entitled to tender, and the pursuer is not bound to accept, in full satisfaction of the foresaid sum of £16, 9s. 10 1 4d., payable from the defender's lands of Cockersheugh, in the said parish, under and by virtue of the said decreet of locality, the sum of £6, 11s. 6d., being the pretended amount of the whole teinds of the said lands: ( Sixth) That the defender is not entitled to tender, and the pursuer is not bound to accept, in full satisfaction of the foresaid sum of £445, 0s. 8d., payable from the defender's lands and barony of Minto and others, in the said parish, under and by virtue of the said decreet of locality, the sum of £339, 12s. 2d., being the pretended amount of the whole teinds of the said lands and barony: ( Seventh) That the defender is not entitled to tender, and the pursuer is not bound to accept, in full satisfaction of the said sum of £30, 1s. 11 3 4d., payable from the defender's lands of Newlands, in the said parish, under and by virtue of the said decreet of locality, the sum of £12, being the pretended amount of the whole teinds of the said lands: ( Eighth) That the defender is not entitled to tender, and the pursuer is not bound to accept, in full satisfaction of the said sum of £124, 8s. 5d., payable from the defender's lands of Hassendean Bank and others, so far as lying within the parish of Minto, under and by virtue of the said decreet of locality, the sum of £98, 12s. 4d., being the pretended amount of the whole teinds of the saidlands,” &c.

The parties, after condescending on the decreet of modification of 8th February 1907 libelled in the summons and which was admitted by the defender, averred—“(Cond. 2) … By decree of locality in the said process, dated 18th June 1908, the Court of Teinds localled on the defender's said lands of Cockersheugh, Minto, Newlands, and Hassendean Bank the quantities of victuals, half meal, half barley, libelled in the summons. Admitted that the then comparative fall in fiars was, among other reasons, presented as a reason for modifying a permanent stipend for the cure at a higher figure. The Court of Teinds considers such facts in relation to the probable trend of corn prices for a tract of time. ( Ans. 2)… Explained that the State of Teinds lodged in the process of the said locality showed the whole teinds of the parish to amount to £632, 12s. 6 1 2d., whereof teinds to the value of £313, 12s. 7d. were then free or unexhausted, that the existence of this large amount of free teinds and the then low prices of grain were then put forward by the present pursuer as reasons for asking an augmentation, that the teinds of the parish are the only estate on which the Court can local stipend, that no claim has ever been made hitherto for payment of stipend in excess of the teinds, and that should the pursuer's present claim be sustained he will, during the continuance of the present abnormal fiars' prices, draw stipend considerably in excess of the whole teinds of the said parish. Further explained, that the recent abnormal rise of fiars' prices has had no effect in increasing either the proprietor's returns from, or the teinds of, the said lands, and that by the said decreet of locality the quantities of victual therein set forth are only ordained to be paid ‘out of the first and readiest of the teinds, parsonage and vicarage,’ of the parish, conform

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to the, division therein set forth, and that under the said decreet the stipend localled on the defender's lands is payable only out of the teinds thereof. (Cond. 3) The fiars prices of grain for the county of Roxburgh for crop and year 1917 were struck as at 26th February 1918, and were as follows:—barley, £3, 5s. 7 5 12d. per quarter; meal 3s. 9 6 12d. per stone of 14 lbs. ( Ans. 3) Admitted. (Cond. 4) According to the said fiars prices the amounts of money payable under the locality foresaid by and out of the several parcels of land held by the defender in the said parish as his contribution to the stipend for crop and year 1917, conform to the said decree of locality, are as follows:—

Lands of Cockersheugh	£16	9	10 1 2
Lands and barony of Minto	445	0	8
Lands of Newlands	30	1	11 3 4
Lands of Hassendean Bank	124	8	5
In all	£616	0	11 1 4

The defender has been duly called upon to obtemper said decreet, but he refuses or delays to do so. His agents on his behalf (while referring to controversies which have arisen owing to the recent rise in fiars prices) tendered a sum of £456, 16s. in full of the sums so allocated upon the various lands, which sum could not be accepted. The explanation in answer is denied. ( Ans. 4) Admitted that the sums stated are arrived at by converting the quantities of victual localled upon the teinds of the said several parcels of land according to the fiars prices for crop and year 1917; and that the defender refused to pay the said sums and paid instead the sum of £456, 16s. as the whole sum which he was liable in respect of his rights to the said lands and teinds to pay to the pursuer for crop and year 1917. Quoad ultra not admitted. Explained, under reference to answers 6, 7, 8, and 9, that the whole teind of the said lands amount to the said sum of £456, 16s. (Cond. 5) The said sum of £456, 16s. tendered by the defender is understood to be made up as follows:—

For Minto and Newlands	£351	12	2
For Cockersheugh, being one-fifth of the amount of the rental as ascertained in 1906	6	11	6
For Hassendean Bank, being a proportion of one-fifth of the amount of rental as ascertained in 1906: (some portion of the rents of these lands is presently allocated to an adjoining parish)	98	12	4
	£456	16	0

( Ans. 5) Admitted under reference to answers 6, 7, 8, and 9, and subject to the explanation that £98, 12s. 4d. is one-fifth of the entire rental of the whole lands of Hassendean Bank as ascertained in 1906.”

It appeared from the statements of parties in articles 6, 7, 8, and 9 of the condescendence and relative answers, that while in the case of the lands of Cockersheugh and Hassendean Bank there existed no known valuation of the teinds, in the case of the lands of Minto and Newlands there was a decreet of valuation dated 2nd June 1819.

The pursuer pleaded—“1. The pursuer being in right of the decreet of modification and locality libelled, and the said decreet being enforceable against the various lands in the parish held by the defender and against the defender as intromitter with the teinds thereof in accordance with the fiars of the county, decree of declarator should be pronounced as concluded for. 2. The pretended ‘tender’ of a proportion of agricultural rental or of teinds by the defender being invalid and inept in respect (1) that tender without surrender is incompetent, and inept in answer to the pursuer's claim for stipend as specified; separatim (2) that the amounts of money tendered are not the teinds of the lands; separatim (3) that the defender so far as without heritable rights to the teinds in question or any of them is not in a position to surrender; et separatim (4) that the defender does not offer or propose to surrender to the incumbent of the cure the whole teinds duly valued—decree should be pronounced in terms of the conclusions of the summons. 3. The defences being irrelevant the defender's pleas-in-laws should be repelled.”

The defender pleaded—“1. The pursuer being entitled under the decree of locality libelled to payment of stipend only out of the teinds of the lands specified, and not being entitled to encroach upon the stock, the defender should be assoilzied from the whole conclusions of the summons. 2. The defender being only liable to pay stipend in each year in respect of the lands of Newlands and the lands and barony of Minto to the extent of the valued teinds of these lands, should be assoilzied from the conclusions of the action so far as referring thereto. 3. The defender being liable to pay stipend in each year in respect of the lands of Hassendean Bank, including Cockersheugh, only to the extent of one-fifth part of the present rent of the said lands, should be assoilzied from the conclusions of the action so far as referring thereto. 4. Separatim, in the event of it being held that the decree of locality libelled imposes liability on the defender to pay stipend in excess of the amount of the teinds of his said lands, the same is ultra vires and inept, and ought, if necessary, to be reduced.”

On 16th January 1920 the Lord Ordinary ( Sands) found and declared in terms of the conclusions of the summons.

Opinion.—“King Charles I was beheaded at Whitehall upon 30th January 1649, Francis Ferdinand, Crown Prince of Austria, was assassinated at Sarajivo upon 28th June 1914. History is a quaint humorist, for both of these historical events appear to have a relation, causal or consequential, to the subject-matter of the present action. In the opinion of many competent scholars King Charles I, by his teind legislation, which has here to be examined, alienated from himself powerful influences, support by which would have altered the course of his history. The assassination of Francis Ferdinand led by a short and clear causal sequence to the present action concerning the valuation of teinds and the payment of stipend in Scotland. The rise in the money

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value of agricultural produce, and the consequent increase in the amounts of stipend measured therein occasioned by the European war, has disturbed the proportionate relation of rent to stipend, and has induced heritors to endeavour to find a legal mitigation of the burden. In considering whether any relief can be obtained I shall have occasion to examine some of the equitable considerations upon which the present system and rules are based. In doing so, however, I cannot give effect to special considerations of equity which the present abnormal situation might suggest. It may be that a rule which originated in considerations of equity and convenience may under extraordinary circumstances yield inconvenient or inequitable results. But if it is so established as to have become a rule of law effect must be given to it by the Court.

This case raises two questions which under present circumstances are of general importance, and it has, I understand, been brought into Court by mutual understanding between the two interests affected as a test case. The two questions are (1) Whether where teinds have been valued in money and a stipend has been modified and localled in victual, the heritor may in any year tender to the minister, instead of the money value of the victual stipend localled upon the teinds of his lands converted according to the fiars' prices, the money value of his teinds, without at the same time surrendering his teinds as valued to the minister for all time coming? (2) Whether where teinds are unvalued, tender in any year of one-fifth of the rent satisfies the claim of the minister for stipend irrespective of the value of the amount of stipend localled upon the teinds?

I confess that my impression on first hearing these questions propounded was that the former question was the first stile the heritor had to get over, and that if he failed there he could hardly approach the second. This was not, however, the way in which the matter presented itself in argument. As the argument developed it appeared to me that the heritor regarded the second question as the more hopeful one from his point of view, and though I am far from suggesting that he jettisoned the first he seemed to argue it more slightly and less confidently. Doubtless he realised that whilst there is no direct decision upon either question, he was faced as regards the former with the difficulty that a whole branch of the law of teinds, viz., surrender, appears to be based upon the assumption that this question falls to be answered in favour of the stipendiary minister. I take this question first. Whether or not it is more difficult than the second it is certainly less recondite. It does not take research back beyond George III, whilst the second question takes it back to Charles I.

Towards the close of the eighteenth century there was considerable activity in the Court of Teinds. Most parishes had stipends modified subsequent to the Union, and it was long considered doubtful whether the Court could grant any second augmentation to such a stipend. When this question had been decided by the House of Lords in favour of the minister there were a number of applications to the Court and new questions emerged. One of these questions was—Whether where teinds had been valued in money it was competent to modify a stipend in victual? Upon this matter there was much difference of opinion and dubiety of decision, but it was settled in the affirmative by the case of Mitchell v. Douglas, 1798, Mor. 14, 827, generally known as the Lamington case. The law and practice of surrender have their origin in this case.

Where teinds are valued in money and a victual augmentation has to be localled it is necessary to convert the money into the terms of victual in order to determine what is the fair share to allocate upon the surplus teinds of a particular heritor, and also in order to ascertain how much victual stipend the teinds will carry where they are likely to be exhausted by the augmentation. This conversion is effected by taking the average prices (now by statute the fiars prices) for seven years, and ascertaining how much, valued on this basis, the money teind represents. One of the arguments against the modification in victual where there were money valuations was, that, as prices fluctuate, the average price taken for the purpose of conversion might be much exceeded in the future, and that in that case if the heritor had to pay the money value of the victual stipend he might be paying a larger sum than the total of his valued money teind. If the interlocutor of the Court in the Lamington case had been silent as to this difficulty it would have been open to the heritor here to argue that the Court brushed it aside because the stipend is payable out of teind, and the decerniture must be held to be impliedly limited in each year to a quantity of victual equal in value according to the prices of the year to the teind as valued in money. The Court did not, however, take this course. They did not leave the matter to stand upon any supposed implied qualification, but they inserted an express one. In doing so, however, they expressly recognised that the stock cannot be encroached upon by the Court in allocating stipend. Obviously it could not be contended that localling in victual to the full amount of the corresponding money value of the valued teind does in terms encroach upon thes tock. But, on the other hand, it might be argued that this will almost certainly be its effect, as it would be unreasonable to suppose that future prices will never in any year exceed the present average. The Court having these considerations fully in view pronounced the following judgment:—‘Find that victual stipend may be allocated upon heritors whose teinds are valued in money, the value of the money being in the present or any similar case computed at a medium of the fiars prices for the county which have been struck for the last seven years preceding the interlocutor of augmentation agreeably to the rule followed in the case of the process of sale ( Sir Alexander Ramsay against Mr Maule of Panmure on the 14th May 1794), and with

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this explanation, 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 thus 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.’

The foregoing finding is introduced as a supplement to an interlocutor which simply affirmed an interlocutor modifying an augmentation in victual. The finding is certainly a strange one to be introduced into an interlocutor between two parties litigating a particular case, for its terms are general, and it seems designed to formulate a general rule for the future. It reads like an enactment by a commission with quasilegislative authority. In the eighteenth century the Court of Session assumed somewhat analogous powers as, for example, when they passed the Act of Sederunt in regard to the striking of fiars' prices, and the Act anent Removings. But in such cases the authority arrogated was not exercised by way of a general finding and direction introduced into a decision in a particular case. (In this connection it is of interest to refer to the opinion of Lord Kinnear, adopted by his colleagues, in the case of Presbytery of Stirling v. Heritors of Larbert and Dunipace, 1901, 2 F. 562, to the effect that teinds are just one department of the business of the Court of Session, that there is no distinct Court of Teinds, and that ‘Court of Teinds’ and ‘Commissioner of Teinds’ are really misnomers, though of statutory use. In the case of Matheson v. The Marchioness of Stafford, 1862, 24 D. 436, however, it was held that the Clerk of Teinds is not a clerk of the Court of Session, and that teind summonses must be signed by him, although a Writer to the Signet may sign a Court of Session summons. Again, in the case of Pearson v. The Magistrates of Dunbar, 1862, 24 D. 1837, the Lord President (Colonsay) stated that under the constitution of the Court of Teinds the presiding judge has no vote. Another peculiarity is that according to the tradition of the Teind Office the Procurator of the Church leads in the Court of Teinds.) If in the Lamington case the Court had taken the view of the law here contended for by the heritor, and had intended merely to make express what, according to the heritor's contention in the present case is implied in all such decrees of locality, this could easily have been done. They might have said, ‘It shall be optional to any heritor, instead of delivering and paying the quantity of victual and money stipend thus laid upon him, in any year to pay to the minister the whole of the valued teind.’ But instead of ‘in any year to pay to the minister’ the Court said ‘at any time to give up and pay in all time thereafter to the minister.’ I shall consider later the ratio of the Court in taking this course. Meantime I remark—(1) The terms of the judgment seem clearly to imply that, in view of the Court which pronounced it, tender in any year of the amount of the teinds as valued in money is not in itself a good answer to the demand of a stipendiary minister for the value of the victual stipend contained in his decree of locality. (2) Inasmuch as the inductive words of the special declaration in the judgment are ‘as the stock cannot be encroached upon’ in the view of the Court a heritor who declined to surrender could not complain of an encroachment upon stock if in a particular year the converted value of victual stipend was greater than the amount of his valued teind. The matter came up again in two other cases— Skene and Cummertrees, both in 1798, mentioned in a note to the report of Lamington, Mor. 14,831—when similar judgments were pronounced, so that the matter must have been very fully considered by the fifteen at a time when according to tradition the Bench was very strong manned.

The question of surrender arose again in the Eddleston case, 1805, Mor. Teinds, App. 28, when it was held that heritors who had surrendered their teinds had no interest in a new locality, and could not be made liable in the expenses thereof. The report bears that in the view of the Court ‘the option given to heritors to surrender their whole teind must be always available to them at whatever time they choose to adopt it, for the Court of Teinds never can encroach upon the stock whether by a payment in money or grain.’ This seems to imply that in the view of the Court in 1805, as in 1798, surrender was the heritor's only protection against a demand for payment in excess of his valued teind.

Surrenders are recognised by the Teinds Act 1808, 48 George III, c. 138, which provides—Section 14—‘Provided always that the right of any heritor to surrender his valued tiend in place of subjecting his lands to the amount of the stipend localled upon them shall not be taken away by what is herein enacted.’

This proviso seems to contemplate that the heritor has the option either to subject his lands to the stipend localled or to surrender his teinds, and that accordingly if he does not surrender his teinds he subjects his lands to the stipend localled. This provision appears to supersede any question as to whether the action of the Court in introducing the system of surrender by the general finding in the Lamington case was intra vires.

This closes the first chapter on surrender. The general rule was now clearly established, and subsequent decisions are of an incidental or explicatory character.

As I have already, perhaps sufficiently, indicated, it appears to be clear that surrenders were introduced for the following reasons. Many teinds had been valued in money. There was at that time (curiously contrary to the general trend as between landlord and tenant) a strong desire to maintain, and even to extend, the system of modifying stipends in victual, and this was made virtually compulsory by the Act of 1808. But if a victual stipend was localled upon a money teind there was always a risk that by a rise of prices the money value of the stipend would come to be greater than that of the teind. This might have been avoided by localling so far short of the

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corresponding money value as to obviate any appreciable risk. But this would have been unjust to the other heritors where there were free teinds and to the minister where there were none. In the opinion of the Courts at this time, tender in any year of the amount in a decree of valuation in money was not an answer to the minister's charge for the stipend in his decree of locality so long as the minister's claim was not as titular, but as a stipendiary entitled not to the teinds but to a stipend payable thereout of by the heritors and intromitters. Accordingly the Court, conformably with legal principle in substance, but in form by the exercise of the equitable quasi-administrative authority which the Court of Teinds was in use to exercise, introduced the system of surrender.

The legal commentators who have written upon the subject since surrenders were introduced all take the same view of the purpose for which the expedient was devised, viz., to allow the heritor a means of avoiding being called upon under the decree of locality to pay more than the amount of his valued teinds, and there is no suggestion that such an expedient was unnecessary in respect that the heritor could in any year satisfy the decree by paying the amount in his valuation without surrendering for all time coming.

Thus Connell states (1, 250) that surrenders were introduced ‘to obviate the objection that the heritors might come to pay stipend beyond the amount of their valuations.’ This statement is amplified in another passage (1, 524).

Again, as justifying the contention that teinds may be surrendered even where there is a final locality Connell says (1, 532)—‘There would be no doubt a great hardship in obliging heritors to pay more than their valued teind until the stipends were again augmented.’ Obviously, however, there would be no such hardship and no need for a surrender if in any year the heritor could refuse to pay more than his valued teind without committing himself as regards the future.

Buchanan (249) after explaining that a heritor is liable personally in the stipend laid on the teinds of his lands by the decree of locality, states, ‘But an heritor may always avoid any charge beyond the amount of his teind (if valued) by surrendering his valued teind.’ More (Notes ccxxxix), Duncan (334), and Elliot (68) explain the matter similarly to Connell and seem to assume that surrender is the only deliverance for the heritor from payment of the converted value of the money stipend localled upon him.

There are dicta to the like effect in comparatively recent cases, but before noticing them I refer for a moment to the case of Shaw v. Parish of Dailly, mentioned in Connell (1, 531) and briefly reported in Shaw's Teind Cases, 70. In that case the teinds were all valued in money and the stipend was modified in victual. On proceeding to equate the two on the basis of the fiars prices for seven years it was found that the whole teind was one and a half chalders short. The minister then proposed alternatively either that the whole stipend modified to him should be localled upon the heritors, or otherwise that the modification should be reduced and the whole teinds of the parish be modified to him as stipend. The advantage of this latter course to the minister would be that if prices fell he would still get the whole of the valued teind. The Court adopted the latter course, viz., of reducing the modification and modifying of new to the minister the whole teinds of the parish, which in effect was much the same as compelling a surrender. But it is difficult to understand why the Court preferred this cumbrous alternative to the former unless in their view the localling of the whole stipend would have made that stipend payable each year irrespective of the value of the teinds until the teinds were surrendered. This alternative would have been the simple and logical one if it was open to the heritor to tender his valued teind in any year when the converted stipend exceeded it in amount.

The case of Cameron v. Chisholm Batten, 1869, 7 Macph. 565, was one of a claim by a minister for payment of arrears of stipend said by the heritor to be in excess of the amount of his valued teind. The case was very special and the question of surrender was not in issue, but Lord Cowan figured the case of a surrender as an answer to a claim for arrears—‘I have only to add that I do not think a surrender now made would improve the defender's position in regard to this action so as to affect the minister's claim for stipend prior to its date under a final decree of locality, and this action is only for arrears. A surrender does not operate retro.’

This statement seems to me to exclude the idea that there can be no liability beyond the amount in the valuation, even where there is no surrender. The statement that surrender does not operate retro would have been otiose if the claim of the minister as regards byegones was limited as to each past year to the amount of the valued teind, and the heritor could satisfy the demand for each past year by tendering the valued teind.

In the second Chisholm Batten case ( Chisholm Batten v. Robertson, 1873, 11 Macph. 292) Lord Benholme said—‘If any order of payment in the shape of a decree of locality turns out to be in excess of the teind the heritor is entitled to get quit of it by surrendering his teind.’ By ‘get quit of it,’ Lord Benholme must mean ‘get quit’ of the excess payment in any year when it may occur, for surrender does not get quit altogether of the decree. It would have been easy to say ‘need not comply with it,’ had Lord Benholme been of opinion that this was the heritor's right even without surrender.

The question of surrender is dealt with by the Lord President in the case of Minto v. Pennell, 1873, 1 R. 156. The passage is too long for quotation. But I think it is impossible to read it otherwise than in the view that surrender is the heritor's only remedy. The Lord President points out

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that it may come to be a question whether it is worth the heritor's while to surrender, or whether it may not be better for him to submit to a slight over payment in one year beyond the amount of his valued teind. Such a question could never arise if it were always sufficient for him to tender his valued teind. In the same case Lord Ardmillan says—‘In consequence of a decree of valuation there arises to the heritor a right to surrender what the decree has declared to be teind and has valued accordingly, and the right to hold as against the exaction of stipend what the decree has declared to be stock.… He was not bound to exercise his right of surrender or to found upon his decree of valuation unless he chose, or until he chose. So long as he did not surrender he continued to pay his stipend in terms of decrees of locality. When the surplus payment became sufficiently large to induce him to resist further over-payments, he is entitled to stand on his valuation and surrender his teinds.’ The English may not be very elegant, but I think the meaning is clear that the heritor must pay according to his locality unless and until he surrenders.

The result of my examination of the authorities is that for the past 120 years it has been assumed that an heritor must pay the stipend localled upon him under a final decree of locality unless he surrenders his teinds; that a system of procedure has been based upon this assumption, and that this assumption has been recognised by statute, by judicial dicta, and by all legal commentators during that period. I have not verified it, but it has been remarked that there is neither statute nor express decision that the eldest son succeeds to heritage in Scotland; that apart from the statements of text writers, all that can be said is that this doctrine has been assumed in a number of decided cases. On the other hand, the doctrine accepted by the profession, and acted upon in practice for more than a hundred years, that the right to a casualty cannot be defeated by an elusory feu-duty, now hangs by the slender thread that one judge, out of a majority of seven judges of the whole Court, who gave effect to the contrary view, proceeded solely upon the pleadings in the particular case. The minister's case for payment according to his locality may not be so strong as that of the heir-at-law, but it seems certainly stronger than that of the feudal superior to a substantial casualty in disregard of the elusory feu-duty. Conveyancing devices contrived by practitioners rested upon the latter. But there rested upon the former a system contrived and initiated by the Court and recognised in at least a score of reported cases. It is true that surrender serves the ancillary purpose of relieving the heritor surrendering from further expense in the localities, but this has always been regarded as a subsidiary and incidental benefit. It was not for this that the system of surrenders was designed. If a heritor satisfies the decree by tendering his valued teind without surrendering, there has been a judicial misapprehension which has persisted for more than 120 years. I am unable to take this view. I must hold it to be a rule positivi juris that the heritor must pay as localled upon until he surrenders.

It may be well, however, in case the matter is deemed to be one that can now be reconsidered, to consider upon what grounds the Court proceeded in recognising this rule and devising surrenders.

The Court of Teinds, in administering their special branch of the law, whilst respecting ultimate right, has treated the system as somewhat flexible, and has made equitable adaptations to meet special circumstances. This is fully borne out by such a study of their decisions as the inquiry in this case has entailed. To cite, as one of many examples, a case I have referred to above— Ameron v. Chisholm Batten, 1869, 7 Macph. p. 562. In that case it was held that it was competent to ordain a heritor, who had obtained a reduction of a decree of locality, to continue to pay stipend in terms of that decree until a new locality was prepared, although the stock was thereby encroached upon.

The principle of equitable adaptation was recognised when the Court initiated the system of surrenders. The ultimate right of the heritor not to have his stock encroached upon was respected. He was allowed a remedy. If he pays out of stock it is his own choice. But might not this have been secured by allowing the heritor to satisfy the decree in any year by tendering his valued teind? Why should the obligation be put upon him to surrender? I think that this can be explained as an equitable adjustment. It frequently happens that the whole or nearly the whole of the teind valued in money has to be appropriated in making up the locality to meet the augmented stipend, and that may be so even although there may be other free teind in the parish, this latter happening to be of a more privileged character in order of liability. As I have already pointed out, the allocation is effected by converting the money value of the teind into victual according to the average prices of the seven years preceding the modification. Now if those be average years in average times, the result of what the heritor here proposes, where the allocation is up to the full equivalent of the valued teind, is that in every second year the minister will not get the equivalent of his full amount of victual, whilst in every other year the heritor will have something in hand for himself. There may come a cycle of years in which the one or the other state of circumstances will obtain. But the minister has no remedy and cannot get his stipend made up out of the other free teind in the parish. Fluctuations in the value of victual can never be a ground for reducing a locality (indeed if it were possible and a new locality were made up, as the learned Teind Clerk pointed out in reply to a question in the course of the argument, it would be the same as the old one, for by statute the seven years of prices to be taken for an average are the seven years prior to the last modification). The truth is, as I think

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was pointed out in one case—that in order to secure the theoretical justice in such a case it would be necessary to make up a new locality every year. This is out of the question, and accordingly the Court appears to have proceeded upon the view that whilst the heritor must have a remedy against being called upon to pay stipend out of stock, he is not to be allowed to take it both ways according to the old coin spinning device, but must surrender his teinds.

There is another consideration which I think supplies a reason of equity and convenience for the rule. The minister is not titular, claiming the teinds as his own. The teinds, until surrendered, belong to the heritor or titular. The minister is a stipendiary. The valuation is not his document—his only document is his decree of locality. Valuations were not primarily a question between him and the heritor, but between the heritor and the titular, and it has been held to be no ground for objection to a valuation that the stipendiary minister was not convened. Now, as the reports show, valuations may be open to all sorts of challenge and often raise difficult questions in regard to the identification of land, &c. When the heritor tables his valuation, or proposes to lead a valuation and surrender, the minister must face these questions. He has no escape. But he is called upon to do so once and for all with a view to the permanent settlement of the benefice. It would be quite another thing if he were liable to be called upon at any time when he demands his stipend in terms of his decree to be met by the exhibition of an alleged valuation and be obliged to take up the matter with nothing at stake and nothing that could be definitely settled save the amount of stipend for the particular year.

These considerations appear to me to afford a sufficient explanation of the equitable adjustment in the system, whereby the heritor, if he resists payment of the full amount localled, must surrender his valued teind. I am not sure, however, whether there may not be a broad ground of principle, and not merely an equitable adjustment, in the requirement of surrender. The teind was a share in the produce of the soil, the value of which fluctuated annually. There were two elements of uncertainty—the crop for the year and the prices of the year. A valuation in victual eliminated the former. A valuation in money eliminated both. Now what did this latter valuation import? It imported, not that a certain fixed sum of money was the value of the teinds of the land in any particular year, but that a constant annual payment of a specified sum of money was the value of the teinds of the lands for all time, the equivalent for the annually fluctuating drawn teind. That annual payment is now the estate of teinds which belongs to the titular, and out of which the minister's stipend falls to be paid. It is against this estate, and this alone, that the stipend is chargeable. Under the decree of locality the stipend is payable out of the teinds, and the estate of teinds is a constant annual payment. Under the rule of surrender the general principle is recognised that where a person holds an estate charged with a certain burden for which he is not personally liable except as an intromitter with the revenue of that estate, he may satisfy the obligation and relieve himself of all further liability by surrendering the whole estate. The minister makes a certain demand. The heritor objects that this is a demand which seeks to impose a liability upon him greater than the yield of the estate with which he intromits. The minister replies—‘The estate with which you intromit is a constant annual sum of so much. The amount demanded in one particular year and the constant annual sum are not commensurable. You cannot say that the former is in excess of the latter. Your estate of teinds is a constant annual sum; if you think payment according to my locality is more than that and encroaching upon your stock, then surrender the estate.’

I do not require to consider whether this would be a conclusive argument if the question now arose for the first time whether an heritor must surrender in the circumstances figured. I think, however, that the considerations indicated negative the idea that the rule which has stood for 120 years rests upon such an obvious misconception that it is now open to reconsideration.

I am accordingly of opinion that the case for the heritors as regards the teinds valued in money fails, and that the multitude of heritors who, rather than surrender and lose the benefit of low prices, have been content in dear years to pay stipend in excess of their valued teind, have not so acted under essential error induced by the action of the Court.

The second branch of the case, although cognate to the first, raises a different and more recondite question. Certain of the heritor's lands are unvalued. The amount of victual stipend localled upon these lands, when converted into money at the current fiars prices, is said to amount to more than one-fifth of the rent of the lands, and the heritor in these circumstances claims right to satisfy the decree in any year where this occurs by tendering one-fifth of the rent. Prior to the third decade of the seventeenth century no such question could have arisen. The teind was the tenth stook which the titular was entitled to draw upon the ground. It is true that the actual leading of teinds had ceased to be universal. In many cases an annual commutation was paid in money or rental bolls, but the amount of these was fixed by express agreement or usage and had no reference to the rent of the lands. How comes it, then, that one-fifth of the rent has come now to be generally regarded as the value of the teind? The answer to this is to be found in the decreets-arbitral of King Charles I, and the legislation of 1633 which followed thereupon. A system of valuation was thereby established. Under this system two methods of valuation were prescribed, according as the teinds had hitherto been actually drawn or had been satisfied by fixed conventional payments in money or rental bolls. In

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the former case the titular was entitled to prove by evidence what had been the actual value of the teinds. In the latter case the commutation in use to be paid, which in some cases was much below the actual value of the teind, in other cases apparently exorbitant, was not regarded as a satisfactory index, and accordingly it was provided that in such cases the teind should be held to be one-fifth of the constant rent. But why one-fifth? This is explained by Lord Benholme in the case of Jamieson v. Little, 1867, 5 Macph. 914, and although in that case Lord Benholme was one of the minority I think that as regards the matter his historical and arithmetical explanation is right. The tenth stook was worth more than one-fifth of the rent payable for the land, stock, and teind together, or ‘blended’ as it was called. In other words it was worth more than one-fifth of the rent a tenant would pay for the land on the footing that the teind was not to be drawn—the footing on which land was generally let in the case of a commuted teind. The teind was in reality equal in value to one-fourth of this rent. Accordingly in the cases where the titular proved the actual value of the teind or tenth stook he proved an amount equal probably to one-fourth, not one-fifth, of the rent for stock and teind which the land would bring. But for reasons of policy into which it is unnecessary to enter, the King desired to give a relaxation or discount, and accordingly the ‘King's Ease’ was provided. This was a deduction of one-fifth of the proven value of the drawn or led teind. As the drawn teind was equivalent in value to one-fourth of the rent the matter stood thus, and the two methods are reconciled (V.T. being the valued teind, D.T. the drawn teind, and R. the rent)—