Wm. Ferguson of Raith v. Rev. John Gillespie, Minister of Arrochar Et e contra [1797] UKHL 3_Paton_534

UKHL
Wm. Ferguson of Raith v. Rev. John Gillespie, Minister of Arrochar Et e contra
[1797] UKHL 3_Paton_534 · 1797-02-17
A report of the sub-commissioners as to the valuation of the teind, was not approved of, nor had the sub-commissioners, on valuing the teinds, taken any proof of the value of the lands. (1.) Held, in action of approbation brought to have these old valuations approved of at the distance of 160 years, that approbation fell to be pronounced as to the lands of Nether Arrochar; but (2.) as to Upper Arrochar, it being objected that the minister was neither present, nor cited to appear before the sub-commissioners in the valuation, and the record did not bear either that he was present, or cited to appear; Held this a good objection to the approbation as regards those lands; and therefore, that there was no bar to the minister's augmentation. (3.) Also held, that it is not a dereliction of a former valuation, where the stipend is payable part in money and part in grain, that the whole has been paid in money for more than forty years.Jan. 22, 1794.The informality in the sub-valuations of the lands of Upper and Nether Arrochar, purchased by the appellant, having been discovered, as stated in the preceding case, this induced the minister of the parish to bring a process of augmentation before the Court of Session, as Lords Commissioners for the Plantation of Kirks and Valuation of Teinds

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Page: 536 ↓

“The Lords having advised the libel of approbation, with the report of the sub-commissioners of the presbytery of Dumbarton libelled on, memorials, and additional memorials for both parties, they ratify, allow, and approve the said report, in so far as regards the pursuer's lands of Nether Arrochar , and interpone their decreet and authority thereto, and decern conform to the conclusions of the libel in so far as concerns these lands; Refuse to approve the said report in so far as regards the pursuer's lands of Upper Arrochar: Assoilzie the defender from that conclusion of the libel and decern.”
The teinds of Nether Arrochar,

£6

134Teinds of Upper Arrochar,2265 4 ⁄ 12According to the sub-valuation,

£28

179 4 ⁄ 12But the minister had always been paid £30. 11s. 2 6 ⁄ 12 d.As the above decision, in regard to the teinds of Upper Arrochar, left a sufficient fund for the minister's augmentation, taking a fifth of the present rental of those lands, independently altogether of the teinds of Nether Arrochar, the respondent did not seek to disturb the judgment on this last point, seeing that the decision made the lands liable to further burden of augmentation of stipend. But a reclaiming petition was presented by the appellant, wherein he contended, in answer to the objection, as concerns the sub-valuation of Upper Arrochar, regarding the minister not being present, nor cited to appear; that His Majesty, the arbitrator to whom had been submitted the settlement of teinds, had, by his letter to the sub-commissioners, directed that where there had been an old rental, and the

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Besides, there was prima facie evidence that the minister knew well of the proceedings and diets as to Upper Arrochar, because it appears from the report, in regard to the Nether Arrochar teinds, which was going on at the same time with Upper Arrochar, that the minister was present at various parts of the proceedings. He could not attend the one without being apprised of the diets in regard to the other. If he attended to the one, in which his interest was infinitely of lesser magnitude, the presumption is, that he was present and attended to the other. The respondent answered: That it was true, that his Majesty had ordered that the old rentals should stand as the valuation, where the parties consent, or do not oppose; but this only applied where parties having interest either appear, or are lawfully cited to appear; but here the minister did not appear, nor was cited to appear, of which the record itself bore evidence, because the report of the sub-valuators does not mention either the one or the other. He cannot therefore be held as not opposing what he was entirely ignorant of: Had he been cited to appear, or had he appeared, the argument deduced from his not opposing the valuation would have had considerable force; but when, ex facie of the record, the minister was neither present nor cited, no such conclusion or consequence can follow. Nor is the reasoning in regard to the sub-valuation of the lands of Nether Arrochar, which took place at the same time, and at some of which he was present, more conclusive, because the proceedings in these two cases were totally different. The properties at that time,

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Thereafter the process of augmentation was resumed, and the minister was allocated a stipend of twelve bolls of meal, and £1000 Scots ( i.e .) £83. 6s. 8d.), with £5 for communion elements.An appeal was then brought to the House of Lords against the above interlocutors, in so far as concerns the lands of Upper Arrochar, and a cross appeal by the respondent in regard to Nether Arrochar.Pleaded for the Appellant .—The appellant's predecessor in those lands, obtained, so long back as 160 years ago, according to the usual forms and act of Parliament observed in such cases, a valuation of his lands by the sub-commissioners appointed for that purpose. The commissioners, as directed by the letter from King Charles the First, having declared the old rentals to stand for a valuation, the titular consenting, and the minister, the only other person interested, not opposing, that valuation took effect accordingly, and has stood unimpeached for nearly two centuries; for the Court of Teinds having, in the present action, repelled the objection, founded on an alleged dereliction, did thereby virtually find and declare that the sub-valuation had been the rule of payment downwards from the date of the valuation. Accordingly, no augmentation has been made to the minister ever since; and an application made by the minister in 1767 was dismissed, the Court being of opinion, that as the Teinds were valued and exhausted, they had no power to give an augmentation in such circumstances. On this distinct understanding, namely, that the teinds were valued and exhausted, and the lands not liable to be further burdened with augmentation of stipend, the appellant had purchased these lands, paid a price upwards of £8000 above the proved value, and it is but reasonable and just to expect that this sub-valuation ought not to be set aside on light or critical objections in point of form. But if the objection is of any force at all, it can only be upon the ground that the minister was not called as a party to the valuation by the sub-commissioners, or that he had no notice of the proceedings, and no opportunity of appearing for his interest; and that by his not appearing, his interest has been hurt by collusion between the heritor and the titular. Both the presumptio juris and presumptio hominis are against those suppositions, as the lands of Nether Arrochar and Upper Arrochar

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Pleaded for the Respondent .—In a process of sub-valuation before the sub-commissioners, it was necessary that all parties interested in the teinds should be present, or should be lawfully cited to attend. And it cannot be alleged or pretended that the minister was present, although in this

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After hearing counsel, it was

Ordered and adjudged that the interlocutors be affirmed, with £150 costs to the respondent in respect of the appeal: And it is farther ordered and adjudged, that the cross-appeal be dismissed this House: And it declared that the said order of dismissal of the said crossappeal be without prejudice, it being unnecessary to enter into the matter of the same.Counsel: For Appellant.— Sir John Scott, Wm. Adam. For Respondents.— Ro. Dundas, Sir Wm. Grant, John Anstruther, Wm. Robertson, Arch. Campbell.