Scottish Court of Session Decisions

The Act 48 Geo. III, cap. 138, enacts—Section 12—“That where any such parish shall not be altogether situated in one and the same county or stewartry, or where no annual fiars applicable to the kind or description of grain or victual modified, shall be struck in the county or stewartry wherein such parish is situated, it shall be competent for the said Lords of Council and Session as Commissioners aforesaid to fix upon and specify two or more of the adjoining counties, or such stewartry, county, or counties as they shall deem most suitable in the circumstances of the case, according to the annual fiars prices of which stewartry, county, or counties they shall decree the value thereof to be paid in money.”

The Reverend John Ogilvie, M. A., minister of the parish of Cumbernauld, and others, the ministers of quoad omnia parishes in the county of Dumbarton, petitioners, brought a petition craving the Court “to appoint and fix the highest fiars prices of such of [the] adjoining counties as your Lordships shall deem most suitable for the crop and year 1919 and succeeding years according to which the portion of … stipends due to the ministers of the parishes in the county of Dumbarton allocated in barley shall be paid.”

Answers were lodged by Sir Colin George Macrae, W.S., and others, heritors in the county of Dumbarton, respondents.

The petition set forth—“The petitioners are the ministers of the whole quoad omnia parishes of the county of Dumbarton with the exception of the parish of Kilmaronock, which is presently vacant. The whole of the said parishes referred to are within the presbytery of Dumbarton with the exception of the parish of Cumbernauld and the parish of Kirkintilloch, which are within the bounds of the presbytery of Glasgow. The stipends of the petitioners are payable from the teinds under their respective augmentation, modification, and locality decrees, and are localled on the heritors of the various parishes in terms of the relative schemes of locality. At the Fiars Court for Dumbartonshire, held in Dumbarton on 26th February 1920, there was no return for barley, which forms part of the petitioners' victual stipend, and in consequence no legal fiars prices have been struck for barley for the said county of Dumbarton for the crop and year 1919.… The counties immediately adjoining Dumbarton are Stirling, Renfrew, and Lanark. In Renfrewshire there are no highest fiars prices struck for barley, and the portion of the stipends allocated in barley for the parishes in the county of Renfrew are in terms of judgments pronounced by the Court of Teinds calculated according to the highest fiars prices of the county of Lanark. In the circumstances above narrated the petitioners are obliged to make this present application to the Court of Teinds for authority in terms of the above-quoted section of said statute to fix the fiars prices for barley of such of said adjoining counties as the Court shall determine as fiars prices as regards barley for the county of Dumbarton for the crop and year 1919 and succeeding years, and to authorise payment to the petitioners of said barley prices in terms of their respective localities as if the said prices had been struck for barley at the Fiars Court for the County of Dumbarton.”

The answers set forth—“… Explained further that the quantities of barley commonly grown in Dumbartonshire are generally not very large, inasmuch as the quality of the crop produced in the shire is generally not very good. In particular it is generally of a lower quality than crops of barley produced in the immediately adjoining counties of Lanark and Stirling, and it is also generally of a lower quality than crops of barley produced in the county of Argyll, which also immediately adjoins Dumbarton. Taking an average for the seven years down to 1918 the prices obtained for Dumbartonshire barley were £2, 4s. 10d. per quarter, while those obtained in the other counties mentioned were as follows—Lanarkshire, £2, 11s. 7d.; Stirling ( a) Kerse, £2, 10s., and ( b) Dryfield, £2, 9s. 4d.; and Argyll, £2, 8s. 3d. For the crop and year 1919 the fiars prices for barley in the said three counties are as follows—Lanark, £5, 2s. 4d.; Stirling ( a) £5, 12s. 6d., and ( b) £5, 10s. 3d.; Argyll, £5, 3s. 9 1 2d. Explained further that in the present year a considerable number of farmers are growing barley in the county of Dumbarton, so that no difficulty should be experienced in obtaining returns of prices for crop 1920. Having regard to the foregoing facts, the respondents submit that it would be most inequitable if the prices for barley for Dumbartonshire were to be fixed according to the highest fiars prices of any one or more of the said adjoining counties, and, in particular, if the said fiars prices were to be so fixed not only for the crop and year 1919, but also, in terms of the prayer of the petition, for succeeding years. The result of any such order would

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be not only that they would have to meet a higher liability in respect of stipends for crop and year 1919 than the circumstances of the county properly warrant, but also that this higher liability would be stereotyped against them.”

Argued for the petitioners—The present petition was rightly brought under section 12 of the Act 48 Geo. III, cap. 138; “such parish” meant parish in which in terms of the earlier sections the stipend had been modified, which was the case here. The petitioners would consent, with regard to succeeding years, to an interlocutor fixing a standard of adjoining counties only for years in which no standard value for Dumbarton could be obtained.

Argued for the respondents—The section in question only applied when a stipend was modified in the course of a process of modification, augmentation, and locality—Elliot on Teind Court Procedure, p. 221—and therefore did not apply to the present case. If so, the petition should have been to the nobile officium. On the merits no decree should be pronounced which would stereotype the prices for future years when circumstances might be quite different, or for years where a standard could be obtained from Dumbartonshire itself. There was no warrant for a decree operating beyond the year in question.