Scottish Court of Session Decisions

The first of these actions was at the instance of Kenneth Mackenzie, C.A., judicial factor on the trust-estate of the late James Cheape of Strath-tyrum, against the Lord Advocate, for Her Majesty's interest.

The pursuer's averments were shortly as follows:—

The late James Cheape was proprietor of the lands of Strathtyrum and Balgove, in the parish of St Andrews. In 1821 he executed a trust-disposition and settlement of his whole estate, heritable and moveable. On his death, in 1824, his trustees entered upon the management of his estates, and continued therein till April 1852, when they executed a disposition and deed of entail of the lands, in terms of Mr Cheape's trust-disposition and settlement. The trust having lapsed by the death of all the trustees, Mr Mackenzie was, on 17th April 1867, appointed judicial factor on the trust-estate.

On 24th January 1810 the first minister of St Andrews obtained an augmentation of his stipend, to commence with the last half of crop and year 1809. An interim decree of locality was extracted July 8, 1812, which continued as the rule of payment up to and including crop and year 1825. On 29th June 1826 a rectified locality was approved of as a second interim rule of payment, which subsisted as such up to and including crop and year 1829. On 8th December 1830 the then first minister of St Andrews obtained a second augmentation, commencing with crop and year 1830. An interim decree of locality was obtained 22d December 1832, and continued to be the rule of payment up to and including crop of 1859. On 31st May 1834 the Court conjoined the processes of locality; and on 25th May 1860 final localities were approved of.

“Under the interim decree of locality of the stipend in 1810, the lands of Strathtyrum, then belonging to the said James Cheape, were allocated on to the amount of three bolls and a half lippy meal, three bolls and a half lippy barley, and £1, 5s. sterling money. The said James Cheape had an heritable right to the teinds of these lands; and as there was abundance of teinds in the parish not held on heritable rights to make up the minister's stipend without encroaching on those teinds to which there were such rights, the lands of Strathtyrum ought not to have been allocated on for any part of the stipend modified in 1810. They were accordingly exempted in the rectified locality of 1826, and also in the final locality; but the stipend allocated on these lands by the first interim locality was regularly paid to the first minister of the said parish during the currency of that locality. The effect of thus allocating a portion of the stipend on the teinds of the said James Cheape was to relieve to that extent the teinds without heritable rights in the hands of the Crown or its tacksman, and the proprietor of Strathtyrum was in this way obliged to pay and did pay stipend, which, according to the locality as finally approved of, should have been laid upon and paid out of the teinds belonging to the Crown as titular. The teinds so relieved, being the whole free teinds of the under-paying heritors, other than those allocated as stipend to the minister, were paid to the Crown, as titular, or to its tacksman.” [The words in italics were added at the suggestion of the Inner House, to make the statement more explicit.]

“Mr Cheape had no heritable right to the teinds of Balgove. These lands were localled upon by the interim decree of 1810, and also by the interim decree of 1830. The stipend payable under these interim localities was paid by Mr Cheape and his trustees from the respective dates of the localities. By the final locality of 1860 the lands of Balgove were altogether exempted, on the ground that the teinds were bishops' teinds, or were payable to the Crown in rental bolls. Meanwhile the whole valued teind had been paid by Mr Cheape and his trustees to the Crown, without deducting the amount paid as stipend to the minister. This double payment arose from an error, it not being known at the date of the interim decree in 1810 or for sometime afterwards, that the full valued’ teind of Balgove was included in a sum paid yearly by the proprietor to the collector of bishops' rents for these and other lands, and the error was continued by a mistake of the Teind-clerk in framing the interim locality of 1830. The effect of the mistake was either that there has been an overpayment of teind by the proprietors to the Crown as titular to the amount allocated as stipend from the teinds of Balgove, or that there has been an over-payment of stipend by the said proprietors to the same amount, the benefit of which has been derived by the Crown as titular of the teinds upon which the said portion of stipend should have fallen.” The pursuer also averred that a sum of £4 Scots of vicarage teind, which had been paid for time immemorial out of the teind of Balgove to the minister of the neighbouring parish of Cameron, had not been deducted from the valued teind of the same as paid to the Crown from 1831 to 1851 inclusive.

Under these circumstances the pursuer now claimed repetition from the Crown of the various sums arising from the grounds which have been stated, and also the proportion of the Teind-clerk's account paid by the proprietors of Strathtyrum, which amounted to £153, 13s. 9d.

The whole sums concluded for were as follows:

1. Stipend erroneously allocated on Strathtyrum, under interim locality of 1810,..	£128	11	11¼
Interest on annual payments composing same, from 5th April 1810 to 5th April 1860,..	264	16	9¼
£393	8	8½
2. Stipend or teinderroneously paid forBalgove during currency of interimlocality of 1810,.	£296	5	3¼
Interest on annual payments composing said sum, from 6th April 1810 to 5th April 1860,.	611	2	7½
	907	7	10¾
3. Stipend or teinderroneously paidfor Balgove duringcurrency of interim
Carried forward,	£1300	16	7¼
Page: 604↓ Brought forward,	£1300	16	7¼
locality of 1830 upto 1851 inclusive,.	£58	3	8
Interest on annual payments composing said sum, from 5th April 1830 to 5th April 1860,.	53	2	3
	111	5	11
With interest at 5per cent. on the principal sums in 1, 2, and 3, from 5th April 1860 till payment.
4. Vicarage teind paid to minister of Cameron,..	£6	7	6
Interest on annual payments composing said sum, from 5th April 1831 to 5th April 1851,.		9	2
	9	16	8
With interest at 5 per cent. on £6, 7s. 6d., from 5th April 1851 till payment.
5. Proportion of Teind-clerk's account,	153	13	9
With interest at 5 per cent., from 16th May 1866 till payment.
	£1575	12	11½

The defences for the Crown were numerous. Inter alia, the following pleas were stated:—“(4) It is only against the under-paying heritors, and not against the Crown as titular, that the pursuer has any claim for repayment. (7) The pursuer's claim for repetition of any of the over-payments of stipend, and other payments condescended on by him, is prescribed in so far as regard payments beyond forty years.”

While the case was before the Lord Ordinary the following minute was put in for the pursuer:—

“ Lee, for the pursuer, stated that, without prejudice to the pursuer's pleas, and the pursuer being still uninformed what teinds are alleged not to have been received by the Crown, he was willing, before farther procedure, to sue the principal under-paying heritors for the proportion of overpayments due to the pursuer, and effeiring to the lands belonging to such heritors; and in case the said heritors should successfully establish in defence that they have paid their surplus teinds to the Crown, he craved that the present process might be sisted in hoc statu, to afford the pursuer an opportunity of proceeding against the underpaying heritors or their representatives.”

The Lord Ordinary, on 13th June 1871, of consent, sisted process in hoc statu, in terms of the foresaid minute.

On 30th November 1871 the pursuer raised an action against the United College of St Andrews, and St Mary's College, St Andrews, who were said to be the principal under-paying heritors in the parish, concluding against them respectively for £271, 9s. 0d. and £31,13s. 6¾d., in respect of over-payments of stipend by Mr Cheape and his trustees, with interest from 5th April 1865; and for £12, 9s. 4d. and £1, 9s., as their respective shares of the Teind-clerk's account, with interest from 16th May 1866.

On 21st June 1872 the Lord Ordinary conjoined the latter action with the former; and before answer, and under reservation of the pleas of parties, allowed the parties a proof of their averments, to be taken before himself.

The Lord Advocate reclaimed.

Solicitor-General and Ivory, for him, maintained that the action against the Lord Advocate should be dismissed, the under-paying heritors being the parties liable to the pursuer.

Millar, Q.C., and Lee, for the pursuer.

Balfour, for the Colleges, stated that he supported the interlocutor of the Lord Ordinary.

At advising—