Scottish Court of Session Decisions

This was an action at the instance of the Lord Advocate, on behalf of Her Majesty's Commissioners of Woods, Forests, and Land Revenues, against Patrick Stirling, Esquire, of Kippendavie, in the county of Perth, whose lands included the barony of Kinbuck, for payment of £91, 17s. 5 2 12d. of surplus teinds for the lands of Easter and Wester Kinbuck, Mill of Kinbuck, Craigton, and Whitestone, for crops

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and years from 1853 to 1881 inclusive. These lands were in the parish of Dunblane, and the Crown was titular of the teinds in the parish.

The facts of the case appear from the opinion of the Lord Ordinary.

The defender pleaded—“(2) The defender having paid to the ministers of Dunblane and Ardoch respectively, during the years 1853 to 1881 inclusive, the full amount of the valued teind of the barony of Kinbuck, except £18,18s. 2d., and tendered that sum as condescended on, the Crown has no further claim against him for surplus teinds in respect of the said barony, and decree of absolvitor should be pronounced with expenses.”

The Lord Ordinary ( Fraser) decerned against the defender in terms of the conclusions of the summons.

“ Opinion.—By a decree of valuation obtained at the instance of the Commissioners of Forfeited Estates, dated the 3d of February 1773, of the teinds of the barony of Kinbuck, now belonging to the defender, the Court found ‘the rent, stock, and teind of the lands and barony of Kinbuck, comprehending the lands of Corscaplie, Nether Cambushinnie,Craigtoun, Wester Kinbuck, Easter Kinbuck,Whitestoun, and Middle Cambushinnie, with the pertinents lying in the parish of Dunblane, £157, 6s. 0 4 12sd. sterling, the fifth part whereof, being £31, 9s. 2 5 12d. money foresaid, they declare to be teiud, parsonage and vicarage.’ At the date of this valuation the barony of Kinbuck was wholly situated in the parish of Dunblane.

—If the year 1853 the Court, under a summons of disjunction and erection, raised by certain persons interested, against the officers of State, representing the Crown as patron and titular of the parishes of Muthill and Dunblane, erected a new parish quoad omnia out of the parishes of Muthill, Dunblane, and Blackford. The interlocutor of the Court was ‘Find, decern, and declare in terms of the conclusions of the libel as amended conform to the report of the clerk on the printed copy of the summons, reserving only for future consideration the amount of the stipend to be modified to the minister of the new parish.’ The new parish was called the parish of Ardoch.

“By this decree of disjunction and erection, dated 21st February 1855, there were carried away from the parish of Dunblane the following lands, viz., Nether Cambushinnie and Middle Cambushinnie, which were declared to be part of the new parish of Ardoch.

“In the same year, 1855, the Court disposed of what they had reserved in their interlocutor—the question as to the amount of stipend to be modified to the minister of Ardoch, the new parish. They declared that the stipend payable at the date of disjunction to the ministers of Muthill, Blackford, and Dunblane, from the disjoined lands was still to be payable to these ministers, and the remaining teinds of these lands were allocated to the minister of Ardoch.

“The whole of the teinds of the parish of Ardoch are exhausted, and there is no surplus payable to the titular (the Crown); but it is averred that there is a surplus of teinds in the parish of Dunblane, which the Crown now claim under this action. The defender produces a state whereby he shows that, combining the payments which he has made of ministers' stipend I to the two ministers of Ardoch and Dunblane from the year 1853 down to 1881 he has paid of valued teind the whole amount that could be claimed, with the exception of £18, 18s. 2d., which he offered to pay to the Crown before this action was raised, and which he is still willing to pay.

“According to the rectified state of teinds of the purish of Ardoch, after paying the old stipend to Dunblane, the balance amounted to £5, 15s. 4,‘4 6 10d. Now, the Act of Parliament 48 Geo. III. cap. 138, sec. 8, enacts that ‘every stipend which shall be augmented after the passing of this Act shall be wholly modified in grain or victual, even although part or the whole thereof shall have been previously modified in money.’ Therefore in the year 1853 the £5, 15s. 4, 4 10d. required to be converted into grain or victual, and it was so converted, and at that time the fiars' prices happened to be very low. The conversion was into 3 b. 1 f. 1 p. 0 4 8]. of meal, and 3 b. 1f. 1 p. 0 4 8]. of barley. This grain upon being reconverted into money according to the fiars' prices of each year of payment (which is the measure of the minister's right) exceeded the free teind of £5, 15s. 4 6 10d. applicable to Ardoch, seeing that these fiars' prices were higher during every year than they were in 1853, and that consequently the defender has been overpaying to the minister more than the free teind.

—He naturally now desires to have this matter adjusted, and the mode that he proposes is to slump together the payments he has made for; stipend of the two parishes of Dunblane and: Ardoch, and to deduct the combined sum from; the Valued teind of the whole barony. This is resisted by the Crown upon the ground that the two parishes are perfectly distinct; the valuations of the lands in both, it is said, are distinct and separate, and the only remedy that the defender has against being called upon to make overpayments is to surrender his teinds to the minister.

“Now, this question depends upon the construction to be put upon the decree of approbation and valuation of 1773. The pursuer contends that that decree contains a valuation of each separate portion of land composing the barony of Kinbuck, and therefore that each separate portion must be looked to by itself, and its teinds dealt with accordingly. On the other hand, the defender maintains that the valuation is a cumulo valuation, and as there has been no division of the valuation, his mode of stating the principle of accounting is correct. It is laid down by Connell as follows—‘In valuing teinds, whole: estates or several parcels of land belonging to the same landholder were generally estimated by a cumulo valuation, and when the lands which have been valued together come to be divided among different proprietors it becomes neeessary to proportion the cumulo valuation of the tithes among the different parcels of land, and this is done by a suit before the Commissioners of Teinds' (Connell on Tithes, i. p. 221). Undoubtedly there has been no division under any suit before the Commissioners, and therefore if this be a cumulo valuation the law as laid down in the case of Macvicar v. Tweedie, July 12, 1866, 4 Macph. 1058, will apply. The rubric of that case is in the following terms— ‘In a process of

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locality a heritor lodged a minute of surrender of his teinds. In the decree of valuation on which he founded, the teinds of his lands and of lands not belonging to him, and in part situated in a different parish, were valued in cumulo. The Court (rev. judgment of Lord Barcaple) refused to sustain the surrender in respect the amount of the heritor's teind was not ascertained by the decree of valuation founded on, and could not be ascertained without a process of division of the cumulo valuation contained in said decree of valuation.’ There is no authority, so far as the Lord Ordinary can see, defining what is to be held as a cumulo valuation. The extract decree is a very long document and requires to be carefully considered. It narrates the whole of the proceedings in the action, as was the usual practice at its date. The first material part that needs to be referred to is where the Court interpones authority to the reports of the Sub-Commissioners, and ‘found and declared, and hereby, etc., the just worth and constant yearly avail of the pursuers, their respective lands libelled in stock and teind, parsonage and vicarage, to be now and in all time coming the particular quantities of victual and sums of money following, viz., … and the rent, stock, and teind of the lands and barony of Kinbuck, comprehending the lands of Corsecaple, Nether Cambushinnie, Craigtoun, Wester Kinbuck, Easter Kinbuck, Whitestoun, and Middle Cambushinnie, with the pertinents lying in the parish of Dunblane, £157, 6s. 0 4 12d. sterling. The fifth part whereof being £31, 9s. 2 5 12d. money foresaid, they declare to be teind, parsonage and vicarage, which quantities of victual of the qualities foresaid, and sums of money above set down, the said Lords decern and ordain to stand, continue, and endure, and to be repute and holden the just worth, and constant yearly avail of the stock and teind, parsonage and vicarage, of the said pursuers, their respective lands above mentioned in all time coming.… The amount of this probation is that the yearly rent, stock, and teind of the pursuers, their respective lands libelled, lying in the parishes after mentioned, extended to the particular sums of money following, viz.,… and the rent, stock, and teind of their lands lying in the parish of Dunblane … £157, 6s. 0 4 12d. sterling. The fifth part whereof for teind, parsonage and vicarage, is £31, 9s. 2 5 12d. money foresaid, all conform to a particular scheme thereof signed by the Lord Ordinary of that date, with the which the Lord Ordinary made avizandum to the Lords, as a report duly subscribed by the said Lord Alva, Ordinary, extant in process, bears, follows the scheme to which the foregoing prepared state relates.’ Then follows the ‘scheme of the valuation,’ and it is in this scheme that there is found the particular values put upon the specific portions of land constituting the barony of Kinbuck, and it is from what is to be found in this scheme that the pursuer derives support for his contention. In regard to the parish of Dunblane the extract decree thus proceeds— ‘Parish of Dunblane, the lands and barony of Kinbuck, comprehending the lands following, viz., that part of the lands of Corsecaple possessed by James Dunn, £16, 17s. 10d. of money rent, £8, 2s. 8d. of @rent of money advanced by the Commissioners; that part thereof possessed by James Dawson, £16, 17s. 10d. of money rent, £5, 12s. annual rent of money advanced; that' part of Nether Cambushinnie possessed by John Graham, £8, 1s. 6d. of money rent, 9s. 0 4 12d. of minister's stipend, 18s. 6d. of money advanced; that part thereof possessed by James Dow, £8, 1s. 6d. of money rent, 9s. 0 4 12d. of minister's stipend, £1, 9s. annual rent of money advanced; that part thereof possessed by William Finlayson, £8, 1s. 6d. of money rent, 9s. 0 4 12d. of minister's stipend, 16s. of @rent of money advanced; that part thereof possessed by John Reid, £4, 0s. 9d. of money rent, 4s. 6 4 12d. of minister's stipend, 10s. of annual rent of money advanced; that part thereof possessed by James Reid, £4, Os. 9d. of money rent, 4s. 6 2 12d. of minister's stipend, 10s. of annual rent of money advanced,’ and so forth with regard to other lands of the barony which were not disjoined. Then comes the other Cambushinnie which was disjoined—

‘That part of the lands of Middle Cambushinnie possessed by Patrick Meiklejohn, £14, 3s. of money rent, 17s. 6d. of minister's stipend, £3, 18s. 6d. annual rent of money advanced; that part thereof possessed by John M‘Ewan, £7, 1s. 6d. of money rent, 8s. 9d. of minister's stipend, £1, 8s. 6d. @rent of money advanced; that part thereof possessed by Matthew Stirling, £7, 1s. 6d. of money rent. 8s. 9d. of minister's stipend, £1, 7s. 6d. @rent of money advanced; that piece of ground and cottary possessed by Andrew Eddie, £1, 2s. 4d. of money rent.’

“Then the decree narrates that the Court having taken the scheme into consideration, ‘found and declared the just worth and constant yearly avail of the pursuers lands libelled, in stock and teind, parsonage and vicarage, to be then and in all time coming the particular sums of money following, viz., … and the rent, stock, and teind of their lands lying in the parish of Dunblane, £157, 6s. 0 4 12d. sterling. The fifth part whereof, being £31, 9s. 2 5 12d. money foresaid, they declared to be teind, parsonage and vicarage, and decerned in the valuation accordingly.’

“It is in these circumstances that the Court is' required to decide whether the present case comes within the rule laid down in Macvicar v. Tweedie. Is this a cumulo valuation entitling the defender to say that there are no materials for separating the teinds of the lands which were disjoined from Dunblane and annexed to the new parish of Ardoch, and that consequently he is entitled to blend together the payments that he has made to both ministers? The Lord Ordinary is of opinion that this contention is not well founded. In the case of Macvicar v. Tweedie a number of lands were joined together, and the teinds were valued together, and the separate valuation of each was not ascertained by the Court, but only by minute of agreement ! between the parties to whom the separate lands were conveyed. The correctness of this agreement was denied. The facts appear more particularly in the report in the Jurist (vol. xxxviii, p. 590), but still more clearly in the Session papers which the Lord Ordinary has examined. Now, that is not the case with reference to the circumstances with which we have here to deal. Every portion of the teinds of the lands that were annexed to Ardoch were separately valued. No doubt in the final judgment of the Court the

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whole of the separate valuations of the particular teinds are added up, and the total is declared to be the value of the teinds of the barony of Kinbuck; but this does not take away anything from the fact that we have got a valuation of the teinds of each portion of the barony. That valuation so standing, the defender is entitled to surrender his teinds to the minister, and get rid of all future liability. To decide otherwise would be to elevate the formal sentence of the Court to a position which was never intended, and to ignore altogether another portion of the valuation which had reference to the several parts of which the sum total is composed.

“The result is that the Lord Ordinary is of opinion that the contention of the pursuer in this case is right, and that judgment must be given for the Crown.”

The defender reclaimed, and argued—It was admitted that the Crown was titular of the teinds of these lands, and that £18, 18s. 2d. of surplus teinds were due. The valuation of 1773 was cumulo for the whole barony, and until it was split up by a process of division it was impossible to say that any part of it applied specially to any part of the lands. The defender could not protect himself by surrendering the teinds. The minister could have objected to a surrender— Macvicar v. Tweedie, July 12, 1866, 4 Macph. 1058. The decree of valuation in that case was undistinguishable from the decree in question. In a question between the heritor and titular it was clear that the former could not pay more than the surplus of the teinds after payment to the minister. The titular could only ask that the heritor should account for the full amount of the valuation— Glasgow University v. Pollock, May 17, 1868, 6 Macph. 878. Until 1838 every decree of valuation bore reference to a statement of the proof on which the cumulo valuation proceeded. But the decree was not several because it contained the materials for apportioning the teind to the various lands. For instance, there was nothing in the decree here to localise Andrew Eddie's ground and cottary. The distinction between a cumulo and a several decree was that the first alone involved a right to go against the fruits of any part of the lands indicated in the decree. It was said that the minister had been paid out of stock, and that if the heritor had surrendered a proportion of the cumulo money valuation he would have been free. The origin of surrenders was to be seen from Lamington's case, M. 14,827. Assuming that there had been means for ascertaining the exact lands given over to the parish of Ardoch, a surrender was not possible to the heritor, for (1) this was a cumulo valuation; (2) it was not possible to get at the exact rent of the several parts.

Argued for the respondent—The whole case for the reclaimer was that the valuation did not show what the teind of any particular part of the lands was, and that therefore the present decree was in the same position as that in Macvicar v. Tweedie. But in that case there was nothing given but the result of the probation. Here there was a separate state and a scheme prepared by the Lord Ordinary, and proceeded on by the Court. This was in fact a cumulo and a several valuation in one. What were declared to be cumulo valuations were valuations of particular lands after they had been feued out in parcels. But that was different from the case of several parcels of land held by various people as in the present valuation—Connel on Tithes, i. 221; Campbell v. M'Lachlin, Sh. Teind Ca., 19; Cameron v. Macpherson, April 1, 1753, 15 D. 657. Again, after disjunction, part of the lands were in Dunblane and part in Ardoch, but the teind of the latter continued to be paid to Dunblane. Simpson v. Orr Ewing, December 8, 1882, 10 R. 323, was an application of the old and not of the modern rule—[ Lord President— Is there any case where a titular has been allowed to go behind a decree of the Court?] Not in the usual case, but this was different. The titular said that the heritor was not bound to pay the alleged excess. If he had not chosen to surrender, then in a question between titular and heritor the latter must be taken as if he had surrendered, for the former was not to be prejudiced when he came to demand surplus teind in another parish. It was said that the titular might bring an action of division, but the heritor was the proper party—Jurid. Styles, iii. 483.

At advising—