Scottish Court of Session Decisions

The Earl of Airlie, patron of the united parishes of Cortachy and Clova, in Forfarshire, and the Hon. Donald Ogilvy of Clova, heritable proprietor of tae barony of Cortachy, raised an action against the Rev. William Ogilvie, minister of the united parishes, to have a report of valuation made by the Sub-Commissioners of the Presbytery of Forfar in June 1627, approved of by the Court. On December 7, 1836, the Court pronounced this interlocutor:—“Find that, the writing founded on as a valuation by the sub-commissioners is a document which might, if not barred by dereliction, be approven by this Court as a valuation of the teinds; but, before answer in this case, remit to the Lord Ordinary to hear parties on the subject of dereliction, to proceed in the cause as he shall think fit, and to report.” ¹

Under this remit, parties were heard before the Lord Ordinary, who “having considered the revised cases, process, and productions in reference to the plea of dereliction, which is the only one now remaining for discussion, made avizandum with the case to the Court, and appointed

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^* Decided July 5, 1837, but accidentally omitted under that date.

¹ Ante, XV. 211, which see.

the annexed note to be printed as containing the Lord Ordinary's views on the question, in order that the same may be reported to the Teind Court quam primum.” ^* In the note annexed to the interlocutor, the

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^* “ Note.—The present is a process of approbation brought in 1827 by the Earl of Airlie find Mr Ogilvy of Clova, to have a certain document approved of as a valuation of their teinds, importing to be a report of certain sub-commissioners made in June 1627, for valuing the teinds of the united parishes of Cortachy and Clova.

“This sub-report is an old document, somewhat peculiar in its structure and terms, and bears date a year prior to the first valuation hitherto traced, as explained by Sir John Connel, vol. 1, p. 317. It was printed along with the record and revised cases, when this cause was lately before the Court.

“The first question argued was, Whether such a document could be held as in form or substance a proper valuation, which the Court of Teinds could under any circumstances sustain as an ancient valuation. Upon that question your Lordships of this date, found ‘that the writing founded on as a valuation by the sub-commissioners is a document which might, if not barred by dereliction, be approven by this Court as a valuation of the teinds; but before answer in this case, remit to the Lord Ordinary to hear parties on the subject of dereliction, to proceed in the cause as he shall think fit, and to report.’

“In terms of this remit the Lord Ordinary proceeded to consider the case, on the basis of the document libelled on, being a valid and effectual subvaluation of the date it bears; after which the only question remaining for consideration is, whether it ought to be held as extinguished by dereliction prior to the institution of the present action.

“Upon that point, the Lord Ordinary heard counsel for the better part of two days, and he afterwards had the assistance of the teind-clerk in examining the various documents in process; and as his impression on the whole is, that the plea of dereliction is well-founded, and that this cannot be obviated by any farther evidence or productions now extant or competent to be referred to, he thinks it his duty now to report the case to the Court; and to state in some detail the grounds of his opinion.

“I. In the first place, it is conceived, from the whole tenor of the ancient document founded on by the pursuers us a subvaluation, that it was designed to comprehend and set forth the teinds of the whole lands in the united parishes as they stood in June 1627. In fact, its terms demonstrate it to have been a statistical document, more than usually comprehensive, as to details interesting to the whole parish. Prima facie, therefore, it must be held as including the whole teinds of the parish; and so this document seems to have been viewed by the pursuers themselves or their advisers, when the summons was raised, as that evidently was so expressed as to lead to the conclusion that it applied to the whole teinds of the parish.

“In that view, the prssent case seems a very clear one. The whole teinds of the united parishes, if included in the subvaluation, amounted to £544, 15s. 7d. Scots—i. e. £45, 7s. 11d. sterling, whereof £32, 15s.3d. formed the teind of Cortachie, and £12, 12s. 9d. the teind of Clova.

“But the stipend allocated for the united parishes in 1717 amounted to £546, 13s. Scots in money, and sixteen bolls meal; consequently the money allocation alone was equal to the teind so valued, and all the victual allocation was overpayment. The latter, however, was laid entirely on and paid by Lord Airlie's predecessors for 120 years.

“The value of sixteen bolls of meal at the old conversion in the act 1649, cap. 45 (which is often referred to in similar cases) was £100 Scots. That sum was more than one-third of the teinds corresponding to Lord Airlie's lands in the sub-valuation. This alone, therefore, is more than sufficient to establish dereliction as against Lord Airlie. As for Mr Ogilvy of Clova's case, his over-payments do not seem to have commenced till 1796.

“In 1796, Lord Airlie's predecessor agreed to pay the minister £51, 19s. 7d. sterling in money, and sixteen bolls of meal. According to any view, that was a large excess above the teind as valued in 1627, which, as shown above, only amounted in all to £32 odds sterling for the whole pariah of Cortachie. Again, by the augmentation and locality of 1808, the stipend laid on the pursuer's lands in Cortachie amounted to £116, 4s. sterling, which is an excess more than thrice greater than the teind in the sub-valuation.

“As to Mr Ogilvy of Clova's lands, his over-payments between 1717 and 1796 only amounted to 8s. Id. yearly, and therefore nothing is founded on such a trifling excess; but in 1796 Mr Ogilvy's predecessor agreed to pay the minister £89, 13s. 8d. sterling, while the whole teind of the parish under the sub-valuation was only £12, 12s. 9d. Such an overpayment, if long continued, seems to found an insuperable plea of dereliction. Accordingly, ho paid that for twelve years. Again, when the augmentation of 1808 was modified, no less than £ 103, 8s. was localled on Mr Ogilvy, and he continued to pay that for 19 years more.

“When the over-payments here are contrasted with those in Lord Gray's case in 1799 (Morison, p. 15,773), and when the facts are applied to the views of the Court, as expressed in the later case of Lord Kinnoul and Mr M'Donald of St Martins (Shaw's Teind Cases, p. 105), the payments since 1796 alone seem amply sufficient to support the plea of dereliction in the present case.

“II. While these are the general grounds on which the Lord Ordinary rests his opinion, the pleas maintained by the pursuers do not appear to him, on examination, to be well founded.

“In particular, the whole case of the pursuers seems to be rested on this, that the subvaluation libelled on was a partial one, and did not comprehend the whole teinds of the united parishes; from which the pursuers of course argue that there was no over-payment, but that any payments to account of stipend over and above the teind as valued, must be imputed to the omitted subjects.

“(1.) In support of that plea, the pursuers referred to the case of Ballingry in 1830 (Shaw's Teind Cases, p. 233), as showing that similar subvaluations were not presumed by the Court to comprehend entire parishes. But Ballingry was a special case; and the distinctions between it and the present case are sufficiently obvious from the report. In Ballingry the heritors names were mentioned in the subvaluation, while no such specification is given here; and there are other distinctions unnecessary to he pointed out. When the names of proprietors are condescended on in these old sub-reports, there is sometimes an opportunity of detecting and checking omission by recurring to the old titles of the heritors, which does not exist in the present case. In this respect Ballingry was a case materially different from the present.

“(2.) When the evidence was called for as to the special subjects or properties alleged to be omitted in the subvaluation libelled on, the pursuers did not refer to any thing like precise, tangible, and satisfactory evidence, to render it clear and certain that there really had been omissions in the subvaluation. Their whole case was found to rest on alleged discrepancies between the names of the lands in the old valuation, and those specified in the scheme of locality in 1717, made up ninety years afterwards by different men of business; from which it is argued that the subjects particularly specified in the locality must all have been omitted in the subvaluation, whereby the overpayments would be explained, and any plea founded on them obviated. But on attending to the list of properties said to be omitted, as given in the pursuers' revised case, it will be noticed that they are chiefly small pendicles of inconsiderable value, even when revalued in 1808; and the sub-coraraissioners, for aught that appears, might well consider them parts and pertinents of one or other of the fifteen lots into which the subvaluation of 1627 was subdivided. Some of these lots appear to have extended to a mile or more in the direction described in the subvaluation. How can it ever be proved that the pendicles, though separately specified in the scheme or proof of the rental in 1717, were not parts of the large lots given under general heads in the report of 1627 ?

“The Lord Ordinary conceives that it would be very hazardous for the interest of many parties, heritors as well as ministers, in the construction of these old instruments, to lay much stress on any difference or discrepancy in the names of lands, whether arising from the change of properties and names in the course of ages, or from the greater minuteness thought necessary at different times, and by different men of business, in the various instruments prepared by them.

“Besides, the utter hopelessness of any attempt to contrast the subvaluation with the scheme of locality in 1717, and to trace to whom the lots minutely set forth in the scheme of locality belonged, in 1627, is so clearly demonstrated in the clerk's report, that it may be now reckoned an impossibility.

“As it is understood the Court expressed some desire, when the case was formerly before them, to see the schemes of locality, in order to contrast them with the old subvaluation, the Lord Ordinary has directed the teind clerk to put into process copies of the schemes of locality in 1717 and 1808, which should be printed and annexed to this note when the case comes next before the Court.

“(3.) The pursuer, Lord Airlie, referred to an old document stated to be still in his own possession, said to he a valuation (tack) of teinds prior to the subvaluation, and showing that the same names and properties were known and recognised in this parish prior to 1627, as occur in the scheme of locality of 1717, which two documents, it is said, when contrasted, prove omissions in the subvaluation. It is doubted, however, if this inference would follow, even if the old document were exhibited; because, though pendicles might be carefully enumerated in this ancient tack of teinds, and again in the locality of 1717, it would not prove that the sub-valuation was defective, because the sub-commissioners probably referred to properties by their general names, and not by their minute subdivisions. It would require a very particular explanation and history of the ownership and titles of the properties specified in the subvaluation, and of those said to be omitted and particularised in the old locality, to prove the alleged omissions, which has not been attempted here; indeed no reference at all to the ancient titles has been made by the pursuer in the present case.

“But farther, it is impossible to take the alleged tack of teinds now into consideration, as the record is closed, and the pursuer could not now produce it, without paying the whole previous expenses of the defender, which have not been offered.

“The decisive circumstance, however, in the Lord Ordinary's mind to prove the irrelevant and superfluous nature of any of the evidence offered by the pursuers is this, that even assuming the omissions stated by them to he established, dereliction has nevertheless taken place here as to both pursuers, since 1796; for the payments made in that year, and for 31 years afterwards, far exceeded both the teinds in the subvaluation and those alleged by the pursuers to belong to the omitted properties. This important fact is demonstrated in the appendix to the defender's answers, and it is not distinctly controverted. In such a case dereliction seems to follow on all the authorities. The Court has always drawn a distinction between excess of payments made in cases of valuation by sub-commissioners and those made by the high commission. The present is of the former description; as to them it has not always been required that the overpayments should be for 40 years; but excess of payments for shorter terms has been held to amount to dereliction. See the case of Lord Gray in 1799, and of Lord Kinnoul and Mr M'Donald of St Martins in 1826 (Shaw's Teind Cases, page 105); and the other cases of dereliction enumerated in the last edition of Sir John Connel's Treatise on Teinds, vol. i. p, 242, 243, &c.

“The pursuers pleaded that the overpayments between 1796 and 1808 were gratuitous and voluntary. But it is impossible so to view them. The pursuers themselves, on record, state them to have been made in virtue of a private agreement; and there can be no doubt that such an agreement was obligatory, as it must for a time have superseded a formal process of augmentation. In this view, the payments under the agreement were just as conclusive against the heritors as payments under a locality.

“In these circumstances, there really seem to be stronger facts to warrant a presumption of abandonment here than in any previous case on record; and, in fact, it is not easy to resist the conclusion that the predecessors of the noble pursuer had such doubt of the document being a proper subvaluation, that they purposely abstained from bringing it forward.

“The minister made an urgent claim for expenses, as to which the Court must judge. To the Lord Ordinary the minister's claim to these would appear very strong, if his defences shall ultimately be sustained. For though the minister, without doubt, contested unsuccessfully the validity of the ancient report libelled on as a valuation entitled to any effect, he was justified, and perhaps called on as a trustee for the benefice, to question the legal efficacy of an old document like this, of an unusual date and structure, and brought forward for the first time, after the lapse of ages, to reduce his stipend (not very large in any view) to the minimum. Should the action, therefore, fail in its object and main conclusion, it would be hard to deprive the minister of the expense of a discussion in which he has been involved from no act or choice of his own.”

Lord Ordinary fully explained his views, and the facts which were necessary for the decision of the case.

When the cause was advised by the Court, their Lordships unanimously held that dereliction had taken place, and that the Court, there-fore, could not pronounce decree of approbation of the sub-valuation founded on. Their Lordships were of opinion that the sub-valuation applied to the teinds of the whole lands in the united parishes, and that the Lord Ordinary's report was well founded in considering that the plea of dereliction was unquestionably established. Their Lordships pronounced decree accordingly, and found the minister entitled to expenses, subject to modification.