Colonel Gordon - Lord Advocate (Jeffrey - Dr. Lushington v. Gavin Gibb Dunn, and Others - Solicitor General (Campbell - Robertson [1833] UKHL 7_WS_68

UKHL
Colonel Gordon - Lord Advocate (Jeffrey - Dr. Lushington v. Gavin Gibb Dunn, and Others - Solicitor General (Campbell - Robertson
[1833] UKHL 7_WS_68 · 1833-08-28
The titular of the teinds of a parish entered into a submission with an heritor to ascertain the value of his teinds, and a decreet arbitral was pronounced valuing the teinds, but the minister was no party: Held (affirming the judgment of the Court of Session), that the heritor could not obtain a judicial approbation of that decreet, whereby the rights of the minister would be affected.In 1759 the College of Aberdeen, titulars of the teinds of the lands of Slains and Furvie, entered into a submission (to which the minister was no party) with the then proprietor, Lord Errol, regarding the yearly amount of parsonage and vicarage teind payable by the latter. This was determined by decreet arbitral in 1760, which contained the following clauses:—
“Excepting always the stipend to the minister, which I find ought to be paid at the terms and delivered at the places appointed in the decreet of modification and locality of the said parishes of Slains and Furvie, or otherways ascertained by use and wont.”
“But as it appears that there is payable out of the said James Earl of Errol's lands, within the said titularity, yearly, to the minister of Slains and

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Part of these lands now belonged to the appellant. In 1802 a decree of valuation of the teinds of his lands was pronounced, reserving all prior valuations or decrees; and in a process of augmentation brought by the minister in 1809, this valuation was founded on. Thereafter, the College, as titulars, brought against Colonel Gordon, but not against the minister, a reduction of the decreet arbitral, and concluding for payment or accounting according to the valuation of 1802; but he was assoilzied.In 1829 the respondent, as minister of the parish, brought a summons of augmentation, modification, and locality, in which Colonel Gordon appeared, and pleaded that the valuation by the decreet arbitral in 1760 was a valid and regular proceeding, and effectual against the minister and all concerned, and that it had not been abandoned by the process of valuation in 1802, which was brought in ignorance of the prior award; and besides the decree bears an express reservation of all former valuations, and therefore he was not barred or

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Meanwhile, Colonel Gordon brought in 1830 a summons of approbation of the decreet arbitral calling the College, the Minister, and the Crown.In this action “the Lord Ordinary (20th December 1831) having considered the closed record, and heard parties procurators thereon, and advised the whole process in this action of approbation, sustains the defences, assoilzies the defenders, and decerns; finds expenses due, and remits the account, when lodged, to the auditor, to be taxed.Note .—The Lord Ordinary holds these points to be settled:—1. That in a process of valuation before the high commission the minister of the parish must be called in order to make the decreet binding on his successors. (Forbes, 399, 401; 2 Ersk. 10, 35; Minister of Kirkbean, February 4, 1708.) 2. That in a process of approbation of a sub-valuation the rule is the same. ( Lord Salton v. Cook , May 22, 1827, F. C.; Minister of Speymouth and Duke of Gordon, December 2, 1823.) 3. That where the

Footnote

* Ersk. b. ii. tit. 10. sec. 27, 28, 29, 34; Act 1633, c.19; M'Neill v. Minister of Campbelltown , 3d June 1801, Mor. No 12, Apx. Teinds; Sir George Mackenzie's Observations on Statute 1633; Connell on Tithes, 2d edit. vol. i. p. 210; Forbes, p. 402; Case of Robertson in 1734 (l Connell, 329, 1st ed.); Lockhart v. Duke of Hamilton , 20th Nov. 1793 (ib. 331); Hamilton v. Colbrook , 30th Nov. 1803 (ib. 332); Case of Hamilton, 1820.

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And in the augmentation, “the Lord Ordinary (20th December 1831) having considered this closed record, and heard parties procurators thereon, in respect that, in the relative process of approbation, he has pronounced an interlocutor assoilzieing the defenders, repels the pleas set forth by Colonel Gordon in this process, founded on the valuation expressed in the decreet arbitral in 1760, reserving to him his rights under the decreet of valuation in 1802.”The Court having adhered to these interlocutors * , Colonel Gordon appealed (15th Feb. 1832); and after hearing his counsel the House stopped the respondent.Lord Chancellor .—My Lords, in this case I do not think it necessary that your Lordships should be occupied with hearing the counsel for the respondents. On a very careful examination of all the authorities referred to on the part of the appellant, I entertain no manner of doubt that the Court of Session, in affirming the interlocutor of the Lord Ordinary, came to the right conclusion, and that your Lordships must come to the same conclusion as the result of the authorities. The Lord Ordinary arrived at it after a careful, a judicious, and a learned examination of those authorities.My Lords,the course of proceedings in which this question arises must never be lost sight of. It is a question of the approbation of an extra-judicial valuation

Footnote

* 10 S., D., & B., p. 338.

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My Lords,it appears to me that the great distinction between a sub-valuation and an extra-judicial valuation, or a valuation by decreet arbitral, as in this case, is too obvious to be for one moment overlooked. That distinction guides us through the whole of the cases, and

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With respect to the observation of the Lord Ordinary on a valuation by the procurator fiscal, I say nothing, because some doubt appears to exist whether, except in the case provided for by the terms of the commission of 1659, that would apply—whether in any case the procurator fiscal could value the land. It appears to me, from the expressions used by Sir John Connell in different parts of his work, and also the manner in which Lord Moncreiff mentions the procurator fiscal, as if he took it for granted as a matter of course that in such cases the procurator fiscal might have been used to be appointed to carry on proceedings representing interests in cases where the title did not appear.

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My Lords,this brings me to the observation which I threw out on a former day, when commenting upon the cases of appeal from the Scotch Court. I refer to an observation which I threw out respecting the discretion of advising appeals. I wish again to impress it upon your Lordships, and I do it with great satisfaction, because we are in the presence of learned counsel, all of whom must be perfectly aware that what I say cannot be supposed to have the most remote application to them. There is no duty which counsel ought more conscientiously to exercise, than that of advising appeals to this House from the Court of Session. They ought to feel that it is not a matter of course, when a case is brought to a learned counsel for his opinion, whether there is probable cause of appeal or not—that it is any thing but a matter of course that the learned counsel should sign his name to the statement,—of probable cause, merely because there was not an unanimous judgment in the Court below. The learned counsel are bound in such case to exercise the most abstinent discretion in recommending the expense, the delay, and the vexation which must be the consequences of an appeal to this House. I have no manner of doubt, from the names of the most respectable persons which are signed to this case, that in this instance they felt it to be an arguable point; and they may have been right in supposing that there was no former decision upon the question. It is certain that no decision had ever been made which ran upon all fours with the present case, and therefore in some respects this case might be thought fit to receive, in the last resort, the judgment of this House. My observation was pointed at cases that

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My Lords,I have no hesitation in recommending to your Lordships to affirm the judgment of the Court below; and I should further recommend to your Lordships to affirm it with full costs.The House of Lords ordered and adjudged, That the said petition and appeal be and is hereby dismissed this House, and that the interlocutors therein complained of be and the same are hereby affirmed: And it is further ordered, That the appellant do pay or cause to be paid to the said respondent the sum of 238 l . 8 s . for his costs in respect of the said appeal.Solicitors: George W. Poole— Caldwell & Son, Solicitors.