BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
United Kingdom House of Lords Decisions |
||
|
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Galloway v. Earl of Minto [1921] UKHL 46 (12 December 1921) URL: http://www.bailii.org/uk/cases/UKHL/1921/59SLR0046.html Cite as: 59 ScotLR 46, [1921] UKHL 46 |
||
[New search] [Printable PDF version] [Help]
Page: 46↓
(Before
(In the Court of Teinds March 6, 1920, S.C. 354, 57 S.L.R. 297.)
Subject_Teinds — Stipend — Valued and Unvalued Teinds — Right of Heritor to Tender, in Satisfaction of Stipend Localled in Victual, Money Value of Teinds without Surrendering them — Tender where Teinds Unvalued, of One-fifth of Rent of the Lands.
Held (aff. judgment of Second Division) that a heritor whose teinds have been valued in money but have had a stipend localled upon them in victual, is bound, where the stipend exceeds the amount of the valued teinds, either to pay the amount or to surrender the teinds in perpetuity. He is not entitled to tender for the particular year the amount of his teinds as valued.
Where the teinds are unvalued and the stipend localled exceeds one-fifth of the rent, the heritor must either pay the amount of the stipend or lead a Valuation and surrender.
The case is reported ante ut supra.
The Earl of Minto appealed.
At delivering judgment—
Page: 47↓
I take first the question of the valued teinds. Now I need not repeat the oft-recited history of how valuation of teinds came into being in the decrees-arbitral and the subsequent confirmatory legislation of Charles I. That is set out at great length in Erskine, and in the well-known authorities on the special subject of teinds, namely, Connell and Buchanan; and it has been repeated times without number in the judgments of learned judges of the Court of Session who have not always been at one as to the exact result of that legislation, as may be seen from a perusal of the opinions in the Calton case. But for the present purpose it is enough to point out that the process of valuation—besides the incidental purpose of providing for the King's annuity—was a process between the heritor and the titular; the minister (by which, of course, I mean a stipendiary minister and not a proper parson) did not need to be called, though in certain cases he might appear; and the process was intended to get over the obvious disadvantages of the titular drawing the teinds for himself. For till the tenth stook was taken, the heritor could not ingather his harvest without risking a spuilzie, and the advantage to the titular of knowing exactly how he stood had been already demonstrated by the extensive practice of taking rental bolls instead of the ipsa corpora. But that process of valuation assuredly did not alter the the true nature of the estate of teiuds—they were after, as before, debita fructuum and not debita fundi—they are still teinds and not a mere money liability. This is no doubt inconsistent with the opinions of some of the judges in the majority in the Calton case. I said in the Court of Session in the case of Baird v. Wemyss, and I repeat it here, that in this matter I think those judges were wrong and the opinion of the minority was right. But while I say so as to this point, I think it absolutely necessary to add that I am very far from encouraging a reopening of the Calton case so far as the decision is concerned. It would, to my mind, be very improper for this House to disturb a decision which has now ruled practice for very many years, and on the faith of which so many decrees of augmentation and modification have been granted.
Now valuation might be expressed in money, and it might be expressed in victual. As a matter of fact it was sometimes expressed in the one, sometimes in the other, and sometimes in both. In the same way augmentation and modification might be expressed in either, and in old days was so. The practice, however, came to be general, and was stereotyped by the Act 48 Geo. III, chap. 138, which enacted that augmentation should be made in terms of victual. Before the practice was stereotyped it was evident that if there was a modification in victual while there was a valuation in money, then to make the two things correlate in the locality it was necessary to convert one into terms of the other, and that could only be done by means of the fiars prices. But if that were done it was also evident that if the fiars prices came to vary, as assuredly they would, it would be quite possible that the amount localled according to the conversion price of the year of the locality might come in the future to be greater than the money valuation to which it applied. Accordingly it was contended before the Court of Teinds that when there was a money valuation it was incompetent to modify any victual, but that the only modification should be in money, which would avoid any such possibility. That contention was the point of decision in the Lamington case of 1798, and to that case I call your Lordships' particular attention. The teind of the whole parish of Lamington had been valued partly in victual and partly in money, but the old stipend exhausted neither the victual nor the money. It had only left intact one boll, two firlots, one peck, and two-fifths of a lippie of victual. Then in 1793 the minister got an augmentation and modification of two and a-half chalders of grain and £8, 8s. 4d. sterling, with £5 sterling for the communion elements.’ Now this augmentation could obviously not be satisfied out of the remaining victual, and accordingly the sole heritors of the parish—Lord Douglas and Dame Elizabeth Baillie—contended by reclaiming petition that the augmentation was wrongly given in victual to the extent it had been, and should only have been given in money, and they asked for a recal of the interlocutor granting the modification. The report then bears that “as this plea involved
Page: 48↓
Now it is quite evident not only that this represents a very solemn and considered judgment, but that the Court had fully before them the difficulty which might arise in the future, and provided for that difficulty. What did it matter from the heritor's point of view whether the augmentation, if to be given, was given in money or in victual unless he looked forward with apprehension that the fluctuating value of the victual might give rise to this very trouble; that the stipend as modified might come to be more than could be paid out of money valued teinds when that money valuation had been for the purpose of computation turned into victual according, not to the price of the year of demand, but of the seven years' average at the time of augmentation and locality? But for this point there was nothing, from the heritor's point of view, to dispute about, and what was the use of inserting the words “in all time thereafter” unless to explode the idea that all the heritor had to do was to pay the valuation in any one year as is contended in this case. Further, not only did the Court follow the case of Skene as is set forth in the report, but within a week they pronounced the same judgment in Lord Mansfield's case as in the Lamington case, i.e., with the special addendum. And that this was thought of general application for the future is in that case very clearly shown. For the report then goes on to say that “afterwards, of consent of parties, this interlocutor was recalled, and the minister found entitled to the whole valued teind.” That is, of course, equivalent to a compulsorily judicial surrender and certainly was for all time.
Now that was the decision, and it is now one hundred and twenty-three years since it was pronounced, and it is admitted that up to the present case no one has ever presented the argument that surrender is not necessary, but that tender of the sum in the valuation is enough. Further, the special writers—Stair and Erskine both wrote before the date of the decision—have all recognised the rule. I summarise what is set out by the Lord Ordinary at length. Connell, Buchanan, More in his well-known notes to Stair, Duncan in his Parochial Ecclesiastical Law, and Elliott, the late very learned teind clerk, in his little book, all assume that the rule in Lamington is a universal rule. Finally, in decided cases the dicta of judges are all the same way. Lord Cowan, in the first Chisholm Batten case, Lord Ardmillan in the second, and particularly Lord President Inglis in Minto v. Pennell, followed later in like terms by Lord Ardmillan, all agree as to the rule. I forbear to mention more recent dicta of judges still on the Bench, not out of disrespect for their authority but because they base their opinions on the authorities above cited. It was this consideration which moved the Second Division in confirming the judgment of the Lord Ordinary. It is also worthy of notice that the act of George III, specially preserves the right of surrender. One can scarcely resist the conclusion that this clause was penned in view of the rule in the Lamington case. Thereafter to ask this House at this time of day to affirm that in the Lamington case the words “in all time thereafter” were erroneously inserted, and to upset, not only this long course of decision and practice but also the unanimous decision of the Court of Session that this practice should not be upset, is a proposition I do not hesitate to say of unparalleled audacity. After all, the argument of the appellant is, in my view, based upon a very transparent fallacy. He says what is true, that the Court of Teinds can only modify out of teind and not out of stock. Then he says if the modification when translated in the locality comes to make a demand, calculated upon the fiars prices, which exceeds the money valuation, that is an encroachment on stock. But that assumes that the money valuation is the teind. It is not the teind, it is only the sum at which the teind is to be reckoned, if the whole teind is required of the heritor by the titular or the minister. The modification when it was made was granted upon the view borne out by the figures of the day, that there was teind out of which it could be got, and the locality was calculated upon the same basis. When the demand made by the minister seems to the heritor to exceed now, and be likely to exceed in the future, the sum which, if his whole teind is demanded, he can alone be bound to pay, and he objects, the answer in the minister's mouth is, “Then give me your teind, not pay me a sum of money, and keep your teind for the future.” That, it seems to me, was the view of the Court in the Lamington case and has been recognised as sound ever since.
Page: 49↓
So much for the valued, now for the unvalued teind. As to this part of the case your Lordships are absolved from discussing the subject. It is recorded in all the judgments in the Inner House that the appellant before them conceded that if he were wrong as to the valued, he could not hope to succeed as to the unvalued teind. I will, therefore, say no more except this, in case the question should be mooted by someone else, that I agree entirely with the Lord Ordinary's view and with the way he has arrived at that view. The appellant, however, did raise another topic, namely, what was the position of the teind as to which he had no heritable right. This was not so much brought in as a separate point, but rather as an argument for showing that the addendum in the Lamington case could not be of universal application. What the appellant says is that you cannot surrender unless you have a heritable right. As regards the lands in this case they do not easily lend themselves to this argument. As to two parcels it is true that the appellant has no heritable right in the sense that he holds no conveyance, but he says himself he has a statutory right as patron of the parish. It must be remembered that valuation is always possible. So far as the teinds are not valued the appellant may start a valuation to-morrow. It is easily understandable why he has not done so, as he himself as patron was titular. There were no adverse interests, but with a view to surrender he may do it yet. Now if surrender meant the execution of a heritable conveyance it might be said that there could be no surrender when the teinds were not included in the sasine of him who sought to surrender. But surrender is nothing of the sort. The whole subject was dealt with in the recent case of Davidson, where the nature of surrender is dealt with.
There remain only the very rare cases of teinds which cannot be sold. They are given in Buchanan at p. 221. Even they can be valued, and a minute in such case, though not technically a surrender, might properly renounce all right which the heritor could claim to have.
My conclusions on the whole matter are these. The offer made by the appellant is inept as an answer to the demand of the respondent. If the appellant wishes to avoid the possibility of greater payment than the money valuation on the one hand and one-fifth of the rental on the other, his procedure is to execute a minute of surrender as regards such teinds as are valued; to get a valuation and then execute a minute of surrender as to those that are not. The minute should be, as the Lord President pointed out in the Davidson case, specific as to amount, should be executed by the appellant himself, and should be put into the locality process, if that is alive. For these reasons I move your Lordships to dismiss this appeal with costs.
I am authorised to say that my noble and learned friend Lord Atkinson concurs in the judgment which I have delivered.
As to the Lamington case, it was decided in 1798. It has been often and always consistently followed. But I appreciate to the full the argument that that part of the judgment which bears upon the issue in the present appeal cannot be said to have been essential to the decision, and might therefore be eliminated as a precedent and treated as an obiter dictum which must go by the board if unsound. The final judgment in the Lamington case was in these terms—“Find that victual stipend may be allocated upon heritors whose teinds are valued in money, the value of the money being in the present or any similar case computed at a medium of the fiars prices for the county which have been struck for the last seven years preceding the interlocutor of augmentation agreeably to the rule followed in the case of the process of sale ( Sir Alexander Ramsay against Mr Maule of Panmure on the 14th May 1794), and with this explanation, that as the stock cannot be encroached upon it shall be optional to any heritor, instead of delivering and paying the quantity of victual and money stipend thus laid upon him, at any time to give up and pay in all time thereafter to the minister the whole of his valued teinds, according as the same shall have been ascertained
Page: 50↓
I dissent from the view that the “explanation” although supported by time and practice was in itself either unreasonable or unsound. The rule, in my humble opinion, was quite a good and reasonable rule. The Lord Ordinary shows why, and I agree with him. I will venture to add only this—The modification of stipend in victual was the adoption of a measure which when the standard of living became high in the dear year raised the stipendiary minister's allowance, whereas in the cheap and moderate year the money equivalent of the stipend proportionately fell. All that is perfectly intelligible. But it followed that the titular proprietor might find in the dear year that the victual stipend reckoned in money on the high prices swallowed up the whole of the free teind, or again the proprietor might even have to pay more than the whole of the teind which be possessed as stated in the money valuation. What was to be done in these circumstances? Plainly it was a case for accommodation. The law was that the minister's rights were definitely settled by his decreet of modification. The assumption of the law, however, always was (first) that the titular proprietor when the stipend did not reach the whole of the teind kept the balance of the teind for himself. This credit balance was his own property. When prices from exceptional causes put him in the position of being only able to answer the minister's demands by paying more than the teind, it followed that the result was that instead of there being a credit balance which he could keep for himself there was a debit balance against him of an amount which had to be paid to the minister so as to satisfy the decreet of modification. Historical causes and changed seasons produced uncertainty to both parties. It seemed as much against principle that the proprietor should have to pay more than his whole teind as it was that the minister should ever have less than his whole modified stipend. A practical escape from the difficulty was found by permitting the proprietor, the owner of the teinds, to surrender them to the minister once for all, and being freed from the possible liability for a debit balance in certain years to give up the credit balance in the other years.
That was all that the “explanation” came to. A settlement was eminently desirable in the interests of both parties, and the law interposed to give to the proprietor the means of ending the uncertainty if he so chose, and that by assigning over or surrendering the teind. Who shall say that this was unreasonable or contrary to principle? On the other hand, if according to the argument for the appellant the proprietor were at liberty not to assign for good, not to surrender the teind, but simply in any year when the sum due to the minister would produce a debit balance to the landlord to be free from paying that debit balance and leave the minister to suffer a shortage, but with the right of the proprietor unimpaired to keep the balance for himself in those years when it was in his favour, then how could that be reckoned reasonable or in accordance with principle and fair dealing any more than the system of surrender which was adopted? Instead of it being so, it would have seemed not to be a principle at all, but rather a device for weighting the scales of justice against the minister. The principle so settled was not in truth a principle of law at all. It was a rule of practice. But when the practice was followed, and was repeatedly recognised as a rule of liability on the one hand and of correlative right on the other, then the rule of practice became the law of the land; and I see nothing whatsoever to prevent this, looking to the protracted lapse of time and to the continuity and consistency with which the practice has been maintained. As to unsoundness, there was nothing inherently unsound about it.
But there is more than practice to fortify the creation of this rule of law. The right which it embodies has been recognised by the Legislature. In the Act 48 Geo. III—that is to say, twenty years after the decision of the Lamington case—the matter was in my opinion put beyond the region of doubt. The statute was very important, covering as it did not only the processes of modification but those of augmentation and all conversion of money stipends in grain or victual. The provisions of the statute indicate that its framers were minutely acquainted with the details of the somewhat recondite topic, and suggest the very opposite of ignorance of the true rights of parties to the transaction of modification of stipend out of teind. By section 14 of this Act it was “Provided always and be it enacted that the right of any heritor to surrender his valued teind in place of subjecting his lands to the amount of the stipend localled upon then shall not be takerf away by what is herein enacted.” Of course this was not a right which had been conferred by the statute itself. But it was a right and no other which, as Parliament appears to have recognised, arose out of, inter alia, the Lamington case and the
Page: 51↓
As to the text-books, I think the whole point is with convenience and precision stated by Mr Duncan, of whom I would venture to remark that Mr Duncan is an author to whose labours and lucidity sufficient justice has not heretofore been done, and he is furthermore, in my view, an author of the highest authority. “When,” says the learned writer (Parochial and Ecclesiastical Law, the 2nd edition, that of 1869), “the titular or heritor has been, or fears that he may be, called on to contribute, in payment of the minister's stipend, an amount of victual which, when converted into its corresponding value at the fiars rates, will exceed the amount of his teind as valued, he may assign, or as it is technically called ‘surrender,’ his teinds to the minister. Surrenders of teinds are said to have been introduced into practice in the case of Lamington in 1798. They are expressly recognised by the Act 48 Geo. III, cap. 138, sec. 14, and the Act of Sederunt 20th June 1838, and are in general use A surrender of teinds by the heritor operates as a conveyance thereof to the minister, and relieves the heritor from payment of the stipend proposed to be localled on him, and from the expenses incurred after the date of the surrender in the depending or any subsequent process of locality.”
This appears to me to be a statement of the position which is in all points correct. It may be further mentioned that the form or style given as in use for a minute of surrender is in exact accord with that position and shows the full scope of the transaction. It bears—“The said A B hereby surrenders the teinds of his said lands, and protests that neither he nor his successors therein shall be liable for any augmentation of stipend or for any expense which may be incurred in the present or in any future process of locality, or otherwise in all time hereafter, in respect of the said lands and others.”
Of the cases cited (the last of which— Davidson v. Stuart, 1919 S.C.—contains an important pronouncement and ruling by Lord Anderson) I content myself with citing the judgment of Lord President Inglis in the Earl of Minto v. Pennell—“The first time that the right of a heritor to surrender his teinds was fully recognised by the Court was in the case of Lamington, and the interlocutor of the Court in that case fixes a general rule which has been observed ever since, and which is expressed in very distinct terms, and furnishes an authoritative guide to us in dealing with surrenders.” His Lordship then quotes the judgment, and there follow these passages—“If there is a final decree of locality giving a stipend to the minister in victual, and a decree of valuation valuing the teinds in money, it may happen that the victual stipend will be in excess of the valued teinds at one time and not at another. It may not be in excess of the valued teind at the time that the augmentation is given, and yet afterwards, either within the years of prescription or beyond the years of prescription, it may come to be in excess of the valued teind by a rise in the price of victual. It is obvious, therefore, that this right of surrender, which is here very properly said to be in the option of the heritor at any time, is a thing which the heritor may have an interest to do at one time and not at another. No doubt if he once does it he cannot go back on it again.”
There was no new law in this statement, but there was a summing up, and that by the highest authority, of what had been the acknowledged law in Scotland for a century. The argument of the appellant appears to me to question the whole of that law, and to be beating the air.
It was conceded before the Court of Session that the appellant could not succeed in respect of his unvalued teinds if he failed where they have been valued, and by agreement between counsel at your Lordship's Bar any difficulty arising from the appellant's inability to surrender the whole teinds, owing to the particular state of his title in respect of some of them was consensually removed. The matter may therefore be discussed as if all the teinds in question were those which appear to have been valued pursuant to decrees of valuation of 1756, 1777, and 1819. After sundry prior augmentations the stipend of the minister of Minto was again augmented by a decreet
Page: 52↓
By a decree of valuation in regular form the Court pronounces that the rent, stock, and teinds of the lands in question are of the constant yearly value of so much, and that such and such a sum is the constant and fixed yearly duty and the just, constant, and true value of the teinds, parsonage and vicarage, of the said lands and pertinents to be paid in all time coming. Whatever may be the deductions to be drawn from these decrees, there can be no doubt that the measure of constancy thus introduced as between titular and heritor has been of permanent advantage to both. The minister, however, is in a different position. For the definition to be given to his general right to a competent stipend he has to look to a decreet of modification from the Court of Teinds. When obtained this is his title, and under it he can enforce his right against any owner of teinds or intromitter with them. The teinds of his parish as a whole constitute the fund to which he has to look; with the localling of his stipend he is not immediately concerned. It has long been the practice in granting successive augmentations of stipend to express the augmentation in terms of victual according to the Scotch measures—lippies, pecks, firlots, bolls, and chalders—and by section 9 of the Teinds Act 1808 all decrees of modification pronounced thereafter must convert money stipend into victual stipend upon an average of the fiars prices applicable for the previous seven years. The actual stipend as decreed thus becomes convertible into money from time to time according to a fixed scale, based upon an average of seven years, and when localled it is distributable among those liable to pay it upon no other basis.
The primitive simplicity of teinds is thus departed from in two ways. When the titular drew his teinds and severed with his own hands the ipsa corpora, which were his, from the residue, which were the stock of the heritor or his tacksmen, the fruits of the teindable land then and there became divided into teinds and stock, and whatever else might happen, no question of encroaching upon stock could arise. Valuation altered this. When under a decreet of valuation the teinds fell to be taken to be of a constant yearly value of so much money, it is obvious that in a given year the teinds so fixed might differ materially from the actual value in that year of one-tenth part of the fruits of the teindable land independently of valuation. The residue left after the teinds were satisfied and constituting the heritor's stock might or might not be encroached upon in actual fact, but this difference would be the inevitable effect of substituting a permanent annual value for a value annually fixed or a proportion annually ascertained.
When the Court of Teinds came to modify a stipend, where the teindable lands had been valued, it had to work upon this system of valuation, and taking account of the aggregate value of the teinds, assuming for convenience all teinds to have been valued and none to have been surrendered, it had to proceed to modify a competence for the minister within it. In granting an augmentation the like regard had to be had to the free teinds. No doubt unless the stipend was fixed so as to absorb the whole of the teinds as valued, encroachment on the stock would be a theoretical possibility only, but whenever the whole teinds were devoted to stipend, then in any one year the stipend might encroach on the stock, just as I have pointed out the mere valuing of the teinds at a constant value might in a real sense encroach on the stock. It has not, however, I think, been suggested that, if a stipend had been modified in money at the full amount of the valuation of the aggregate teinds, the minister could be required to be satisfied in a bad year with less than would be payable to him in a good year.
It is an established proposition that the Court of Teinds cannot encroach upon the stock whether it modifies stipend in money or in victual. This rule takes effect when the Court pronounces a decreet of modification, for then it has regard to and is restricted by the valued total of the teinds. It is quite another thing, however, to say that the Court having given the minister his title by a valid decreet, and made an end of the matter for the statutory period which must elapse between one modification and another, his rights under it can afterwards be diminished by the accidental unfruitfulness or the casual rise of prices of particular seasons. The Court cannot be said to have disregarded the rule or exceeded its powers by pronouncing a decree which was valid and regular at its date, merely because future events, which were beyond the ken of man, have not been allowed for in the decree sufficiently or at all.
When the second departure from primitive simplicity, namely, the reference to the fiars prices over an average of seven years, became obligatory, there was introduced a further and graver risk, that in a given year the amount of the minister's stipend might by no means square with the integrity of the heritor's stock, whether regarded as a tenth of the fruits or as a residue over and above the valued teinds. It is the introduction of this further mode of valuing victual stipend which has in fact led to the present difficulty. That such a thing might happen must have been apparent to those who established the rule, and there is no dispute of fact or error of calculation alleged here. The appellant must therefore show that the rule which requires conversion of victual stipend into money on a seven years' average of fiars prices either is subject to an unexpressed exception which covers the event that has happened, or is one which does not apply, except subject to a reservation against encroachment upon the heritor's stock. To say that the seven years' average was introduced subject to the proviso that it should apply only in so far as the resulting sum did not exceed the actual teinds of the year, is only another way of putting the
Page: 53↓
The defender makes the following submission as to this statute:—“It is alleged … that the liability of the landowner has been increased by implication in consequence of a modern statutory provision”— videlicet the Teinds Act 1808. “It is submitted that no such result can follow from the mere introduction of machinery, and that such an alteration of the law, imposing such a burden on a heritor, would have required express enactment.” I cannot understand this. As it seems to me, it is the supposed proviso limiting the operation of this machinery to cases where, after applying the average of the fiars prices, the result does not exceed the total amount of the teinds for the year, which stands in need of being expressly enacted, nor do I see why a heritor, as distinguished from other bearers of statutory burdens, is entitled to an explicit form of language to which others cannot lay claim. As for dismissing the prescriptions of an Act of Parliament as “the mere introduction of machinery,” it is a device for which there is certainly some precedent but in my opinion no justification. Statutory “machinery” affects the rights of those who fall within the Act as effectually as statutory principles do, and the whole matter is one of construction. Two other sections of the Teinds Act 1808 are material, sections 11 and 14. By the former it is made incompetent for the Court of Session, in modifying a stipend thereafter, to authorise the minister to receive the same in kind, and it can only “decree the value thereof to be paid … in money according to the fiars prices of the kind or description of grain or victual into which the same shall have been modified … for that crop or year for which such stipend … shall be payable.” By the latter the heritor's right to surrender his valued teind, in place of subjecting his lands to the amount of the stipend localled upon them, is saved.
All these sections were obviously framed in view of the controversy which, so far as the Courts were concerned, was brought to an end by the judgment in the Lamington case. Section 14 is in itself a sufficient answer to the contention that the conclusion arrived at in the Lamington case was quasi-legislative or quasi-administrative, and was not such as at the present time should be recognised as falling within the competence of a judicial tribunal. The existence of the right is now recognised by statute, and the expression of this recognition strongly negatives the implication of any other recourse where the heritor objects to subjecting his lands to the amount of stipend localled upon them, upon the ground, for example, that under the circumstances of the time this is equivalent to an encroachment upon his stock. I think that the effect of the legislation is to enact in express and explicit terms that when an augmentation of stipend was decreed to the minister of Minto in 1907, his right and the heritor's obligations thenceforward should be measured in reference to the average of the fiars prices and at the sum for the year 1917 for which the pursuer now contends.
It is quite true that the Act in terms only prescribes the mode in which the Court is to express a total augmented stipend, and the mode in which effect is to be given to that decreet in following years, while the time-honoured form of the decreet at least makes reference to teinds by name as a source from which it is to be satisfied. Do these words really affect the matter? I cannot think that they do. The contention founded on them represents rather the defender's gloss upon the words than the words themselves, for payment “out of the first and readiest of the teinds” may be, and I think is, different from payment “only out of teinds.” Beyond a doubt the minister cannot get more than the amount of stipend arrived at by measuring victual by the seven years' average of the corresponding fiars prices. He at any rate cannot say that in a given year the average works out adversely to his interest, and that the mere machinery of the Act should not prejudice his right to his total stipend in victual or its equivalent for the time being. If in the minister's case the statutory provision is binding and regulative, it must be the same for the heritor in the absence of express words to a contrary effect. The words of the decree indicate a right of recourse to the first teinds available; they cannot prevail against the statute to limit the decree when for the year in question sufficient teinds are not available. It seems to me that under the present system the money stipend, apart from the mode of calculating it, is deemed to be a burden on and within the value of the teinds and not a burden on stock, whether it always is so in a financial sense or not. If the heritor has other funds apart from stock, he can satisfy his share of the stipend out of them without encroaching on stock, nor is he compellable to resort to stock for the purpose if he has nothing else but stock, he must resort to stock or make default. The result to him is much the same, but the theory is still sufficiently satisfied, for the money calculation is only a monetary substitute for the teindable fruits. As a matter of personal opinion I prefer not to rely on the view suggested by the Lord Ordinary as the explanation of the reasoning in the Lamington case, because I think that it is contrary to the nature of something which grows out of the fruits of a particular year to measure it in a particular year by reference to fluctuations arising in other years. Nor is it altogether satisfactory to say that the existence of the right to surrender has the result that if the heritor pays more than the value of the teind in pursuance of decreets of modification and
Page: 54↓
I think the appeal should be dismissed.
Their Lordships ordered that the interlocutors appealed from be affirmed and the appeal dismissed with costs.
Counsel for Appellant—Dean of Faculty ( Constable, K.C.)— Macphail, K.C.— J. S. C. Reid. Agents— Tods, Murray, & Jamieson, W.S., Edinburgh— John Kennedy & Company, Westminster.
Counsel for Respondents— Mackay, K.C.— Maconochie— Pitman. Agents— Menzies & Thomson, W.S., Edinburgh— Archibald Hope & Spens, Westminster.
