Scottish Court of Session Decisions

Subject_1 PART I.

TEINDS.

Major Hector Macneil,
v.
The Ministers of Campbelton

Date: 3 June 1801
Case No. No. 12.

It is not a relevant objection to the approbation of a sub-valuation, that the minister of the parish, if a stipendiary, was not cited as a party to it.

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The teinds of the lands of Ardnacross, belonging to Major Macneil, were valued in 1630 by the sub-commissioners of the presbytery of Argyle.

These lands lie within the ancient parish of Kilchouslane, now united to that of Campbelton. The Bishop of Lismore was titular of the teinds; and the minister serving the cure merely a stipendiary.

It appeared from the report of the sub-commissioners, that the heritor of the lands, with the titular and tacksman of the teinds, had been called as parties; but it did not appear that the minister of the parish had either been called, or had consented to the subvaluation.

Major Macneil having brought an approbation of the report of the sub-commissioners, and the minister of Campbelton having opposed it, on the ground that the minister of the parish had not been a party to the proceedings, the pursuer,

Pleaded: Where the minister was a parson or vicar, and of course had right to the teinds proprio jure, it was no doubt necessary that he should have been a party to the subvaluation; 4th February 1795, Fergusson, No. 164. p. 15768. But it was otherwise in the case of stipendiaries. Their interest and that of the titular were inseparable; and therefore the proceedings were held to be sufficiently regular, if the latter was cited; 20th July 1763, Thomson, No. 12. p. 10687. Accordingly, by the practice, at least in Argyleshire, the stipendiary clergy were not called*.

The acts 1633, C. 19, and 1661, C. 61, also prove, that the presence of the stipendiary clergy was not required. These statutes allow subvaluations to be rectified at the instance of the minister, ‘not being titular,’ on account of enorm lesion arising from collusion between the titular and the heritor. But if the stipendiary clergy had been parties in the original proceedings, such collusion could in no instance have occurred, and consequently the extraordinary remedy provided by these statutes against its consequences, would not have been provided by the Legislature.

Answered: The minister serving the cure, even when he was not titular proprio jure, had an immediate and direct interest in the proceedings of the sub-commissioners, both on account of the stipend which was then payable to him, and because the surplus teind was the only fund from which he could have derived any future augmentation. It is not to be supposed, therefore, that it should not have been necessary to have made a person so deeply interested a party to the proceedings; and the practice of a remote county cannot be received as fixing an opposite rule.

Even if the interest of the minister had been uniformly the same with that of the titular, the minister could be as little bound to trust his interest to the care of the titular, as the titular was to trust his to the care of the minister. And it is accordingly on this principle, that at present, although most of the clergy are stipendiaries, they must be made parties, not merely to new valuations, but even to approbations of the proceedings of the sub-commissioners.

The inference arising from the statutes 1633 and 1661, seems to be the reverse of that drawn by the defenders. These statutes establish, that the stipendiary

* From an examination of the report of the sub-commissioners for the county of Argyle, it appeared, that of 43 parishes there were 23 where the ministers were either parsons, vicars, titulars, or otherwise beneficiaries, and 18 where the ministers were merely stipendiaries. It appeared that every one of the beneficed clergy had either been cited, or entered an appearance in the subvaluation; whereas, of the stipendiary ministers there were only two instances of an actual appearance by them, and even in these cases there was nothing in the proceedings which shewed that either of them had been cited.

clergy were admitted on all hands to have had an important interest in subvaluations; and it would have been strange to have given them a right to appear in a court of review, if there had been no necessity for making them parties in a radical court.

The Lords (28th January 1810) repelled the objection, and, on advising a reclaiming petition, with answers, they unanimously adhered.

Act. Connell. Alt. Wm. Robertson. Fac. Coll. No. 233. p. 527.