Scottish Court of Session Decisions

The question in this case arose in a process of locality of the parish of Kingoldrum. The facts appear sufficiently from the interlocutor and note of the Lord Ordinary ( Gifford):—

“ Edinburgh,29 th March 1871.—The Lord Ordinary having heard parties' procurators in the question between Thomas Wedderburn Ogilvy, Esq., and the Reverend James Ogilvy Haldane, and having considered the closed records, proof, and whole process—Finds that the objector Thomas Wedderburn Ogilvy is not liable to pay to the Reverend James Ogilvy Haldane the arrears of stipend shown in the state of arrears prior to the stipend due for crop and year 1869, and to this extent sustains the objections for the said Thomas Wedderburn Ogilvy to the said state of arrears; but finds that the said Thomas Wedderburn Ogilvy is liable to be localled upon, and to pay to the minister in respect of the lands of Auldallan, situated in the parish of Kingoldrum, the sum of £7 per annum for crop and year 1869, and for all subsequent crops and years until a new locality is made: Further, and in regard to the expenses incurred in all the questions between the minister and the said Thomas Wedderburn Ogilvy, part of which were reserved by interlocutor of 9th July 1869, finds, in the circumstances, no expenses due to either party up to the present time, and decerns.

Note.—The main question argued before the Lord Ordinary, and as to which the proof was led, was whether the objector Thomas Wedderburn Ogilvy was liable in the arrears of stipend prior to 1869, claimed by the minister in respect of the objector's lands of Auldallan, situated within the parish of Kingoldrum. The objector Mr Wedderburn Ogilvy has admitted that he is liable to pay stipend for crop and year 1869, and subsequent years, and the amount of stipend to be paid was fixed by interlocutor of 9th July 1869, at £7 per annum, so that the only question between the

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parties since 9th July 1869 has been the liability for arrears.

Against the claim for arrears two pleas are relied upon by Mr Ogilvy:— First, That in point of form the claim for arrears cannot be enforced in the present process, but that the claim must be made and tried in an ordinary action; and second, and on the merits, that the arrears cannot be claimed in respect that, down to 1869, the whole teinds now allocated as stipend were in bona fide perceptœ et consumptœ by Mr Ogilvy. It was in reference to the question of bona fides that a short proof was led on 17th March current. All other matters of fact either appear on the face of the documents or are admitted.

The whole questions as to the arrears claimed are, in the Lord Ordinary's view, attended with much nicety and difficulty. The ground on which the Lord Ordinary's judgment proceeds is chiefly, indeed almost exclusively, the plea founded upon bona fide perception and consumption, but it may be right shortly to notice the other questions also.

(1) The question as to the form in which the arrears are claimed depends mainly upon the terms of the Acts of Sederunt 5th July 1809, and 20th June 1838. The first of these Acts provides for the preparation of an interim scheme of locality, ‘according to which the minister's stipend shall be paid, aye and until a final locality shall be settled.’ The second Act, that of 20th June 1838, provides that in certain cases a new interim scheme of locality may be prepared, and also a state of arrears; that on the new scheme and state of arrears being approved of, the Lord Ordinary shall give decree for the arrears, and the new or rectified scheme shall subsist as a new interim rule of payment till set aside by any other rule which may be afterwards granted on cause shown.

In the present case the original scheme of locality did not allocate the whole stipend modified to the minister, the minister being unable at the time to point out teinds from which his full modified stipend could be drawn. Only a part of the stipend therefore was localled under the interim scheme approved of on 7th March 1821, and under this interim scheme the stipend so partially localled was drawn by the present minister and his predecessors down to 1869. This interim locality took effect from 1811, when the stipend was modified, and thus subsisted as a rule of payment for fifty-eight years.

In 1869 the present minister sisted himself to the process, and having discovered that a portion of Mr Ogilvy's lands of Auldallan were in the parish of Kingoldrum, and that although the teinds of that portion were unvalued, they were not included in the interim locality of 1821, he lodged objections in February 1869; and ultimately, after making up a record with Mr Ogilvy, his objections were sustained of this date (July 9, 1869) to the effect of finding that the lands in dispute were to be localled upon, all questions, however, as to arrears being reserved. Thereafter, a new interim locality was made up and approved, and a state of arrears, bringing out a sum, with interest, due to the present minister since his induction in 1836, amounting to £419, 12s. 4d. This includes, however, the stipend for crop 1869, being £7, which Mr Ogilvy does not dispute, so that the real question between the parties relates to the arrears prior to 1869, amounting to £412, 12s. 4d. The question of form is, whether supposing this sum due, decree can be given therefor in the present process.

The objector's contention is, that the Act of Sederunt of 1838 does not apply to the present case; that the original locality has not become ineffectual by any of the causes mentioned in the Act. On the contrary, it has been completely effectual for the whole sum thereby localled, just as effectual as it was when it was pronounced. He urged that the omission of lands from an interim locality, whether accidental or intentional, was no reason for getting a new interim locality, and that at all events no new interim locality could be given which would have the effect of making a new heritor a party to the process, so as to subject him to payment of arrears.

The Lord Ordinary, if it had been necessary to dispose of this question, is inclined to think that, if arrears were really due by Mr Ogilvy, they could competently be decerned for in the present process. It would be with extreme reluctance that he would remit the minister to an ordinary action to make good arrears of stipend included in the final decree of modification. Such action may be necessary where parties not heritors are sought to be made liable for arrears, or otherwise; but supposing Mr Ogilvy the proper debtor, as heritor, it would be very hard that, with the proper parties in Court, and with the whole elements for decision available, the minister should be denied his remedy in the action, which has for its very object the fixing the stipend, and determining the liability therefor, and that from the date of the decree of modification.

The construction of the Act of Sederunt of 1838 contended for by Mr Ogilvy seems to be too strict and critical. The evil to be remedied was the non-recovery of ‘the stipend awarded,’ that is, modified, not the non-recovery of a portion only of the stipend localled. The ‘efficacy’ which is spoken of in the Act is the efficacy to make good to the minister the modified stipend, and an error by omitting an heritor altogether, seems as good a reason for a new interim scheme as an error in the teind stated, or as a deficiency caused by a surrender of teinds. In short, where, during the tedious process of a locality, a re-adjustment may be made, so as to prevent the minister suffering deficiency ‘to a considerable extent,’ there would seem to be a fair case for the application of the remedial Act of Sederunt.

On the other hand, however, the Lord Ordinary is clearly of opinion that all fair objections and all equitable defences against payment of arrears must be open in the present process, just as they would in any ordinary action. In this view, the Lord Ordinary cannot give effect to the minister's plea that the interlocutor of 9th July 1869, fixing £7 as the teind of Mr Ogilvy's land, is res judicata fixing the amount, not only for the future, but also for the past, and that the same, coupled with the approval of the new interim locality, implies decree for the arrears sought, saving only questions of calculation. It seems conclusive against this view, even were there nothing else, that all questions as to arrears were expressly reserved by the interlocutor of 9th July 1869; but, on a broader ground, the Lord Ordinary thinks that if arrears may be competently decerned for at all, all equitable objections must be open for consideration.

(2) On the question of bona fide perception and consumption there is much difficulty, and much room for argument.

As to the matter of fact, the Lord Ordinary thinks that it is sufficiently proved that Mr Wedderburn

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Ogilvy was entirely ignorant that any part of his lands was situated in the parish of Kingoldrum, or that he was liable in any part of the stipend of that parish. Until a question arose about a division of commonty a few years ago, he never heard it alleged that any part of his estate was in Kingoldrum, and even then he understood it was only a small patch, trifling in extent, and still more trifling in value. It is also proved that Mr Ogilvy, after paying stipend in Lintrathen, which he understood to be out of his whole lands of Auldallan, spent the rents on the footing that there was no further claim against him.

Of Mr Ogilvy's personal bona fides therefore there can be little doubt, but as he himself explains that he is entirely ignorant regarding his title-deeds, and regarding documents relating to his property, leaving everything to his agents, it is necessary to inquire whether the parochiality of the portion of Auldallan in Kingoldrum was a matter of notoriety, which ought to have been known to Mr Ogilvy or his agents. Here also the proof is clear enough. The local factor Mr Forrest, the tenant in the lands Mr Mackay, and the Edinburgh agent Mr Mackenzie, were examined. They all say that they never heard of the claim for Kingoldrum stipend till the present question was raised. The tenant in the lands, born at Auldallan, and whose father was previously tenant therein, while paying schoolmaster's salary, road money, and parochial burdens in Lintrathen, has until recently paid none in Kingoldrum. The older titles down to 1826 describe the lands in dispute as in Lintrathen, and not in Kingoldrum, and the whole tacks down to that granted in 1867 describe the lands as in Lintrathen parish. It is true that in the valuation rolls from 1856 downwards a portion of the lands is entered as in Kingoldrum, but this seems to have arisen from the knowledge of the valuation assessor, and cannot be held as importing a knowlege of the present claim in Mr Ogilvy.

Still further, Mr Ogilvy held a decree of valuation of the teinds of Auldallan, and this valuation was exhausted by the stipend paid in Lintrathen. Mr Ogilvy seems to have believed in bona fide that no further teind was payable for his estate, and even when he and his factors came to know that a small corner of the estate was in Kingoldrum parish, there was nothing to disturb their belief that the whole teinds were nevertheless valued. It was only when a copy of the decree of valuation was recovered from the record by Mr Mackenzie, after the present question arose, that he became aware that a portion of Auldallan, in Kingoldrum parish, was not included in the decree of valuation. No copy of that decree of valuation was among the estate papers, and none was ever seen by Mr Mackenzie till he sent to the teind office. As for Mr Ogilvy himself, he never saw the decree of valuation at all. It may be added that down to 1868 or 1869 the minister of Kingoldrum himself did not know that any part of Auldallan was within his parish.

On the whole, therefore, the Lord Ordinary thinks it may be held that Colonel Ogilvy drew and spent the free rent of his lands, including the teinds in Kingoldrum, to which he has an heritable right, and that in entire ignorance of the present claim, and in the bona fide belief that no such claim was running up against him.

The question of law remains, does the bona fide perception and consumption of teinds bar the claim of a minister who is ultimately found to have a right to stipend out of these teinds? The Lord Ordinary thinks that, without laying down any general rule, this question must be answered in the affirmative in the present case.

There are certainly cases where the bona fide consumption of teinds does not bar a claim for arrears. Thus, where payments of stipend are made under an interim decree of locality there is an implied judicial contract, that when final decree is pronounced over and under payments will be adjusted, going back to the commencement of the process, and all pleas, either of prescription or of bona fide consumption, are excluded; Weatherstone v. Marquis of Tweeddale, 12th November 1833, 12 S., 1.

This case was strongly founded on by the minister as conclusive of the present question, and as applicable to a claim for arrears by the minister as well as to claims of relief among the heritors. The Lord Ordinary cannot so read the judgment. The minister is no party to the judicial contract among the heritors, who are correi debendi, each to the extent of his teind, and it may well be that if he fails to make a demand at all, his claim for arrears may be met by the plea of bona fide consumption, when no such plea would avail against an heritor claiming relief for overpayment. Such over-payments are necessarily made under the interim decree, and relief cannot be got till the final locality. The claim of relief is necessarily reserved, and all the heritors parties to the process are bound to know thereof, and to act accordingly.

But the main speciality in the present case is, that neither Mr Ogilvy nor his author were ever personally made parties to the present process, or were ever made aware that they had any interest either actual or contingent therein. No doubt all the heritors in a parish are cited edictally at the parish church, and so constructively made parties to the process of locality. But this is not enough in a question of bona fides. Mala fides can only be induced by personal and individual knowledge.

The Lord Ordinary is by no means sure that the plea of bona fide consumption would not avail even in a question with the other heritors; for while there is a judicial contract between heritors who underpay and overpay that they will adjust accounts at the end of the day, it would be very strong to hold that there is such a judicial contract with an heritor who was never asked to pay at all, and whom everybody supposed to have nothing to do with the matter—a supposition that was acted on for sixty years.

But the plea applies with stronger force against the minister. He made no claim against the absent heritor, because he honestly believed that no claim existed. The omitted heritor had the same honest belief. It is out of the question to suppose that as between them there was a judicial contract of any kind, far less a contract that arrears might run up at 5 per cent. interest, and that all objections, prescription as well as bona fide consumption, should be excluded.

But then it was said by the minister that, apart from Weatherstone's case, teinds are not a subject which can be bona fide consumed, and an ingenious argument was submitted that every one interfering with them must be held to know that stipend is due therefrom. The Lord Ordinary thinks that the minister's argument on this point is not well founded either in principle or in authority.

Teinds, though they are debita fructuum, are

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recognised as a heritable right of property. Mr Ogilvy is undoubtedly the heritable proprietor of his teinds in Kingoldrum, although they are not included in his decree of valuation. It can hardly be disputed that a supposed proprietor of teinds may uplift and consume them in bona fide, just as a supposed proprietor of lands may uplift and consume the land rents. No doubt teinds are subject to payment of stipend, but land rents also are subject to certain burdens, which may or may not be extinguished. The fallacy of the argument for the minister lies in assuming that all teinds must every year pay stipend, and that to their full extent, so that there must be a conscientia rei alienœ in every one who intromits therewith. But it is not true that teinds are always liable in stipend. There is an order of liability among teinds, and it is not till those primarily liable are exhausted that any liability for stipend attaches to the postponed classes.

Still further, the argument for the minister forgets that the bona fides of Mr Ogilvy consists in the honest belief that the lands were in Lintrathen, and that he had paid stipend out of them in that parish. Bona fides may be founded on any honest belief leading to the conclusion that the annual proceeds belong to the consumer. An honest belief that there were no teinds due would do, as will be shewn immediately. A decimœ inclusœ title, which, though bad in law, the holder believed to be good, would be a fair foundation for bona fide consumption, and the bona fide belief in the non-parochiality of lands seems an excellent foundation for acting as if the minister of a foreign parish has no claim.

Indeed the very fact that teinds are debita fructuum, to be drawn year by year from the fruits, and are never debita fundi, or permanent burdens on the property itself, is a reason why the principle of bona fide consumption should apply to teinds with peculiar force. The intromitter with teinds may fairly hold that claims upon them will be made year by year, and may safely consume the free balance.

But there is authority for holding that the principle of bona fide consumption applies to teinds as well as to other subjects; and Bankton, II, viii, 141, expressly does apply to teinds. The principle as laid down by Erskine, II, i, 25, and post, says that a heritor, ‘if the lands immemorially out of use of the payment of tithes will be free from bygones preceding the date of citation, though he should be subjected in time coming; and if the minister's title was not limited by a decree of locality, use of payment to him will be deemed a consideration for the whole tithes, and free the heritor from bygones to the titular or patron.’—See various old cases cited by Bankton.

In the case of Stirling v. The Feuars of Denny, 25th June 1731, M. 1717, it was expressly held that a small payment to the minister, without challenge by the titular, was a bona fide payment for the whole teind, and barred the titular's claim for arrears. This is a decision of the House of Lords. See Report, 1 Paton, Craigie and Stewart, p. 90.

In Elder v. Fotheringham, 8th January 1869, 7 Macph. 341, where an alleged decimœ inclusœ right was found to be invalid, it was sustained as a good title as founding bona fide consumption, and the minister was held not entitled to bygone arrears of stipend, but only to have it found that the lands should not be exempted in future.

In Cuthbert v. Waldie, 24th January 1840, 2 D. 447, bona fide consumption of teinds was sustained as a good defence for bygones prior to the date of reduction of a final decree of locality, which was found to be erroneous and inept. No doubt here there was a final decree of locality, and the case forms a contrast to the case of Weatherstone; but it is quite conclusive that bona fide consumption may be applicable to teinds. Reference may also be made to Scott v. The Heritors of Ancrum, 25th February 1795, M. 15,700; Haldane v. Adamson, 11th December 1804, M. “Bona et mala fides,” App.3.

In the whole circumstances, the Lord Ordinary has found himself constrained to sustain the plea of bona fide consumption in the present case. It need hardly be added that though consumption seems to be proved in the present case, perception would have been enough.”

The minister reclaimed.

Webster and Nevay for him.

The Solicitor-General ( Clark) and Balfour for respondent.

At advising—