Scottish Court of Session Decisions

The Reverend J. S. Clark, minister of Dunbarney, brought a process of augmentation. The augmentation asked was five chalders. On the cause being put out in the teind roll to fix the amount of augmentation, certain heritors appeared to oppose the application on the grounds (1) that there was no free teind, and (2) that in any view the augmentation asked was excessive.

The last augmentation was in 1863. In that year certain heritors opposed the augmentation on the ground that the teinds were exhausted, and in support of this contention produced an extract decree of valuation of the Commissioners, of date 26th July 1635. In Kirkwood v. Grant, November 7, 1865, 4 Macph. 4, it was held by the Court of Teinds that this decree of valuation of teinds was not an effectual valuation of the teinds in a question with the minister of the parish, in respect that it appeared that the minister had not been called and was not a party to the process. This judgment of the Court of Teinds became final. But in a later case ( Heritors of Old Machar v. The Minister, July 26, 1870, 8 Macph. (H.L.) 168, 7 S.L.R. 726) the House of Lords held that such a decree of valuation was not invalid although the minister of the parish had not been cited as a party to the process in which the decree had been pronounced. This later decision was precisely contrary to the decision of the Court of Teinds in Kirkwood v. Grant, supra.

Since the date of the decision in Kirkwood v. Grant, supra, the heritors had discovered a report by the Sub-Commissioners dated 1635, and were about to take steps to obtain a decree of approbation of that report.

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Counsel for the heritors moved the Court in these circumstances either to sist the process of augmentation, as was done in the Glenluce case ( Farrel v. Earl of Stair, November 9, 1874, 2 R. 76, 12 S.L.R. 56), or at all events, if the augmentation was granted, to introduce into the interlocutor a reservation in the form inserted in the case of Minister of Morvern v. The Heritors, November 22, 1865, 38 Scot. Jur. 49. This form of reservation in that case had now crystallised into the regular form of reservation in use in similar cases— Minister of Bonhill v. Orr Ewing, February 22, 1886, 13 R. 594, 23 S.L.R. 406; Minister of Peebles v. Heritors of Peebles, January 8, 1897, 24 R. 293, 34 S.L.R. 294.

The Court granted an augmentation of five chalders and refused either to sist the process or to insert in the decree a reservation of the rights of the heritors, in respect that if the heritors got a decree of approbation of the report of the Sub-Commissioners it was in their power to surrender if it was found that there was no free teind. The Lord President observed that, as the decree of augmentation would not affect the rights of the heritors, the reservation asked for in the decree of augmentation was unnecessary for the protection of their rights.