Scottish Court of Session Decisions

On 17th November 1899 the Court of Teinds, after hearing counsel for the minister and for the heritors in opposition, granted an augmentation of four chalders to the minister of Inverkeillor, bringing up the stipend of Inverkeillor from eighteen chalders to twenty-two chalders. The heritors admitted that there was a small amount of free teind, but alleged that it was not sufficient to make up the stipend as augmented. The amount of free teind being thus in dispute, the following proviso was added to the interlocutor of augmentation:—“But declaring that this modification, and the settlement of any locality thereof, shall depend upon its being shown to the Lord Ordinary that there exists a fund for the purpose.”

The common agent lodged an interim scheme of locality which showed that there was not sufficient free teind to meet the augmentation awarded to the minister of Inverkeillor, the deficiency amounting to one and three-eighths chalders. The state of teinds prepared by the common agent showed that payments of a total annual money value of £114, 4s. were made from the teinds of the parish of Inverkeillor to the ministers of the following parishes:—Dunnichen, Carmyllie, and Kingoldrum.

The question in the case ultimately came to be, whether these payments formed a good deduction from the amount of the teinds available to satisfy the augmentation granted to the minister of Inverkeillor.

Objections were lodged for the minister of Inverkeillor to the interim scheme of locality lodged by the common agent, and answers to these objections were lodged by the common agent.

On 23rd November 1900 the Lord Ordinary ( Low), in the question between the minister and the common agent, closed the record on the said objections for the minister and the answers thereto for the common agent.

In respect that the heritors of Inverkeillor had met and had resolved not to intervene, as their position was sufficiently stated in the answers of the common agent, the Lord Ordinary found it unnecessary to order intimation of the proceedings to the heritors of Inverkeillor.

In the objections by the minister of Inverkeillor to the interim scheme of locality it was stated, inter alia, that there was sufficient free teind in the parish of Inverkeillor to meet the deficiency of 1 3 8 chalders required to meet the augmentation of 4 chalders granted by the Court of Teinds to the minister of Inverkeillor, and leave a surplus of free teind amounting to £108, 2s. 9d. The payments made from the teinds of Inverkeillor to the ministers of the parishes of Dunnichen, Carmyllie, and Kingoldrum were set forth in detail. The objector reserved any objections competent to him against the ministers and heritors of the said parishes in the event of their being allowed to compear in the process. He further stated as follows:—“(Obj. 6) The objector was not a party to the diversion of the teinds of his parish. It is believed that they were begun to be diverted from Inverkeillor in the seventeenth century by James, Marquis of Hamilton, as titular of the teinds of Aberbrothock, at a time when the teinds of Inverkeillor were sufficient to provide a competent stipend to the minister thereof for many years to come. Subsequent encroachments have been made from time to time, but the minister of Inverkeillor never was a party to any process or proceeding in which teinds now required for his own stipend were decerned to be paid to the ministers of the said other parishes. As long as his modified stipend was provided for by the teinds of his own parish, which has been the case up to the date of the present decree, the objector and his predecessors had no interest or title to object to any use to which the remainder of the teind or any part thereof might be applied, either by the act of the titular or by decree of the Lords Commissioners. Whatever therefore was done by the titular or Lords Commissioners in his absence cannot affect the right of the objector and his successors to a competent provision from the teinds of Inverkeillor, and to resume diverted teinds when the necessity for such resumption arises or is sanctioned by the Lords Commissioners. The objector therefore claims that the whole of the said diverted teinds form a fund of unexhausted teind liable to satisfy the decree of augmentation pronounced in his favour.”

The common agent, in his answers to the objections, admitted that the objector (the minister) was not a party to the diversion of the teinds from his parish, and in a statement of facts stated—“(3) The payments made by the heritors to the parishes of Dunnichen, Carmyllie, and Kingoldrum are made under decrees of the Court. These decrees have not been reduced or set aside by the present objector. The parties interested are the heritors referred to in the objections, and the ministers of the parishes presently drawing the teinds of the lands referred to. These parties are not defenders in this process, and have not been called hereto. The common agent does not know that there is any free teind in the said parishes out of which the existing stipends of the ministers of those parishes could be drawn if they ceased to draw stipends from the said teinds of Inverkeillor.”

The objector (the minister) answered, inter alia, as follows:—“(Reply 3) Explained that the minister has no duty to raise the actions here indicated. The only persons possessing any title or interest to do so are the heritors paying teind out of Inverkeillor to other parishes than Inverkeillor, and whose names are specified in the objections. The minister requires no declarator that the teinds of his own parish are liable

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to pay the decree of a competent stipend pronounced in his favour as aforesaid. Furthermore, the common agent is not the proper party to raise the questions set forth in his answers and pleas. He represents the whole body of the heritors of Inverkeillor, and as a body they have no interest or title to raise questions of liability which affect “only those heritors who are paying Inverkeillor teinds to other parishes.

The objector (the minister) pleaded, inter alia—“(1) The common agent has no title to represent individual heritors, and he ought to be found liable in the expenses of this record and the procedure thereon. (2) In respect the common agent is not the proper respondent to the objections stated to his state of teinds, his answers ought to be held incompetent, and the said objections sustained, or alternatively the process ought to be intimated to the heritors paying teind to the ministers of other parishes out of Inverkeillor. (3) The objector having shown the existence of free teind in his own parish, and he being entitled to the free teind, no further action by him is competent or necessary, and the first, second, and fourth pleas stated for the common agent ought to be repelled. (6) The unexhausted teinds, so far as not diverted, being insufficient for the payment of a competent stipend to the objector as decerned for by the Lords Commissioners, the objector is entitled to decree for so much of the said diverted teinds as may be necessary to satisfy said decree, and the interim locality and state of teinds ought to be amended accordingly. (7) The said payments of teinds out of the parish of Inverkeillor having been made in the absence and without the consent of the objector or his predecessors cannot be pleaded as a bar to the objector and his successors from claiming said teinds whenever the necessity to do so emerges, and the interim locality and state of teinds ought therefore to be amended accordingly. (8) The lands in the parish of Inverkeillor never having formed part of any one of the parishes of Dunnichen, Carmyllie, and Kingoldrum, and the minister of Inverkeillor never having been made a party to payments from said lands to the ministers of Dunnichen, Carmyllie, and Kingoldrum, the minister of Inverkeillor is entitled to payment of his full modified stipend out of the teinds of his own parish irrespective of the disposal of free teind by the titulars or tacksmen or other intromitters with said free teind, and irrespective of the state of teinds of other parishes or the interests of the ministers of the same.”

The common agent pleaded, inter alia, as follows:—“(1) The present process is incompetent so far as directed against the common agent. (2) The parties interested in the question raised by the minister not being parties in this process, the process should be sisted until the objector raises an action in which the case can be properly determined. (3) The teinds paid by Lord Dalhousie and others out of Inverkeillor to the parishes of Dunnichen, Carmyllie, and Kingoldrum, being paid under decrees of Court, the common agent has no power to include them in his state of teinds, out of which the stipend of the minister of Inverkeillor falls to be paid. (4) A remit should be made to the Teind Clerk to report whether there is any free teind in the parishes of Dunnichen, Carmyllie, and Kingoldrum out of which the stipends of the ministers of the said parishes might be paid, so as to obviate the drawing of part of their stipend out of teinds effeiring to the parish of Inverkeillor.”

On 25th January 1901 the Lord Ordinary ( Low), before answer, remitted to the Clerk of Teinds to inquire and report—“(1) Whether there is any free teind in the parish of Inverkeillor to make up the stipend as augmented by the Court, and (2) under what circumstances the payments to the ministers of the other parishes mentioned in the record were made and continue to be made.”

Opinion.—“The object of the minister of Inverkeillor in lodging these objections to the interim scheme of locality is to have included in the locality certain payments which have been in use to be made out of the teinds of the parish to the ministers of the parishes of Dunnichen, Carmyllie, and Kingoldrum. The objector has been granted an augmentation of his stipend, and unless he can reclaim the teinds which are now paid to these other parishes, there is not, according to the locality prepared by the common agent, sufficient free teind to meet the augmentation.

Answers have been lodged for the common agent, and he pleads that the present process is incompetent in so far as directed against him. To a certain extent the objector seems to take the same view, because he pleads that the common agent is not the proper respondent to the objections, and that the answers should be held to be incompetent and the objections sustained. He pleads alternatively that the process should be intimated to the heritors by whom the payments to the other parishes are made. I should have adopted the latter course, but it was stated at the bar that the heritors have had a meeting and have resolved not to intervene, in view of the answers which had been lodged by the common agent.

In regard to the plea that the answers ought to be held incompetent and the objections sustained, I am of opinion that it was quite competent for the common agent to lodge answers as representing the body of the heritors, and as the author of the locality and state of teinds under challenge, although he is not bound, and probably not entitled, to take up questions affecting particular heritors only.

The common agent, however, pleads that this is not a competent process in which to determine the objector's right to reclaim the teinds paid to other parishes, and that the proceedings should be sisted to allow the objector to raise an action calling all parties interested. The action suggested is, I understand, one of reduction

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of the decrees under which the payments to the other parishes are made. Now, I think that it must be regarded as settled that a question of this sort can be competently raised in a process of locality, but it does not follow that it is not necessary to convene the ministers and heritors of the parishes to which payments have been made. That could be done by intimation of the proceedings to them.

I should have thought that that was the proper course to follow if it had not been for the cases of the Minister of Rescobie v. Carnegy ( 7 Macph. 514) and Pennel (minister of Ballingry) v. Malcolm ( 7 Macph. 1078).

In the Carraldston case ( 1 Connell on Tithes 442) the minister of that parish, in a process of modification of stipend, claimed certain teinds which were in use to be paid to the ministers of other parishes. It appears that the ministers of these parishes had been made parties to the process, but the heritors of Carraldston pleaded that the heritors of the other parishes also should be called, and the Court found—‘That before any part of the stipend in use to be paid out of his parish to the ministers of Aberlemno, Novar, and Brechin, could be affected by the pursuer, the heritors of these parochs must be called.’

That is, I think, the only case (prior to those of Rescobie and Ballingry) in which the point was made a matter of judgment, but in all the other cases in which the minister of a parish sought directly to reclaim teinds paid to other parishes of which I can find a report, the ministers and heritors of these parishes were in some way made parties.

Further, upon principle and in accordance with the general practice of the Court, I should have thought that all parties directly interested should be brought into the process. Although the maxim decimœ debentur parocho expresses the general rule, there may be circumstances under which a minister is not entitled to teinds which have been paid to the minister of another parish, and if such a question is decided in the absence of the minister of that other parish, the judgment would not be res judicata against him. The heritor, therefore, whose lands were in question might be forced to meet a re-trial of the question, and the result might be to saddle him with payment to both ministers, and that although his teinds might be exhausted by payment to one alone.

In the Rescobie case the main question was whether certain lands of Over Turin were in Rescobie or in Aberlemno. They were described in the titles as being in the latter parish, and had been localled on for the full amount of the valued teind for payment of the stipend of that parish. The question was raised by the minister of Rescobie by way of objections in a process of augmentation and locality, and Mr Carnegy, the heritor of the lands, lodged answers and pleaded that the minister was bound to raise an action of reduction and declarator, in which the minister of Aberlemno should be called. The Lord Ordinary (Barcaple) held, although with hesitation, that it was competent to try the question upon the objections and answers in absence of the minister of Aberlemno, and the Second Division adhered. The interlocutor was that the lands of Over Turin were situated in the parish of Rescobie, ‘and that the teinds thereof therefore fall to be localled on for the stipend of that parish.’ It was therefore decided that the minister of Rescobie was entitled to reclaim the teinds which had been paid to the minister of Aberlemno, although the latter was not a party to the process.

In the Ballingry case, also, the question raised was whether certain lands were in Ballingry or in the adjoining parish of Auchterderran. It was held that the lands were in Ballingry, but in the interlocutor a reservation was inserted of the rights of the minister of Auchterderran to the payments which he had beep in use to receive in respect of the lands. That was a case, however, in which the lands had been disjoined from Auchterderran and annexed to Ballingry, under reservation of the minister's right to the stipend which he was drawing from the teinds at the date of the disjunction.

I find also that in two old cases, reported in Shaw's Teind Reports, namely, Dunlop v. Hannay, p. 42, and Butler v. Oliphant, p. 85, questions as to whether lands were situated in one parish or another were tried without calling the minister of the parish in which the lands had been dealt with in previous localities as being situated.

Judging therefore by the reported cases, it would appear that there has been a practice to try questions as to whether lands are situated in one parish or in another in proceedings to which the owners of the lands and the minister claiming that they are situated in his parish alone are parties, while in cases of a direct claim by the minister of a parish to teinds which have been in use to be paid to another parish the practice has been to convene all parties interested.

I confess that I do not think that there is any substantial difference between the two classes of cases, and it seems to me that I must regard the case of Rescobie as a considered judgment affirming the competency of determining such a question as that with which I am dealing without calling the minister or the heritors of the parishes to which payments have been in use to be made. I think, however, that no absolute rule was intended to be laid down, but that each case must be dealt with in view of its special circumstances, and although in deference to the judgment in Rescobie I do not propose to appoint intimation to the ministers of the other parishes at this stage, it may be necessary to do so later on.

What I propose to do now is to make a remit to the Teind Clerk. The objector avers that the payments to the other parishes were first made in the seventeenth century by the titular, and that up to the present time the ministers of Inverkeillor

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have had no interest to challenge the payments, as there has always been free teind sufficient to meet their stipend. If that was truly the origin of the payments, and if there is now no free teind to meet the recent augmentation at Inverkeillor, then it may be plain enough that the objector is entitled to demand that the payments should now be made to him. The common agent, however, does not admit the objector's averment in regard to the origin of the payments, but says that all that he knows upon the subject is that they have been made under decrees which he was not entitled to disregard.”

The Clerk of Teinds, in his report, reported, inter alia, as follows:—“The Clerk has examined the state of teinds prepared by the common agent.… The teinds included in the state are paid partly to the ministers of Dunnichen, Carmyllie, and Kingoldrum, and these payments are deducted in computing the free teinds.… In all these cases there is no free teind to make up the present amount of the stipends were a portion withdrawn to make up the stipend of Inverkeillor. … There are no other teinds in the parish of Inverkeillor beyond what have been given to the minister in the interim locality unless he is found entitled to recover the teinds which have been diverted to other parishes for over two centuries and a-half.… Attention may be drawn generally to the practice of titulars making over the teinds for a specific purpose, other than the stipend of the minister of the parish. There are numerous instances in which this transfer has taken place, the parties thus acquiring them becoming titulars. In the case of the Crown there have been grants to the universities, to the Deans of the Chapel Royal, and to other educational and religious purposes. These have been burdened, or liable to be burdened, with such further augmentations to the minister of the parish from which the teinds were drawn as might be granted by the Court. In some of these cases the grants have been materially diminished by the augmentations thus granted.… The Teind Commissioners, under the Act 1633, c. 19, on 14th July 1634, pronounced an order in these terms—‘The Lords find that the titular may not take the teinds of the paroch to provide the minister of another, but that ilk minister be provided with his own.’ The Commissioners, however, did not adhere to the rule of limiting the stipend to the teinds of the parish, and in 1634 Carmyllie, in 1635 Kingoldrum, and in 1636 Dunnichen, were respectively allocated a portion of their stipends from the teinds of other parishes. The explanation probably is that there were no other sources available at that time, and if the titular did not concur in the appropriation of the teinds to other parishes he does not appear to have opposed it.… The payment to Kingoldrum appears to have originated in a decree of the Commissioners acting under the Act of 1633, c. 19, and was dated 15th July 1635, as referred to in the course of proceedings raised in 1792.… The greater part of the parish of Dunnichen had been feued out by the Commendator of the Abbey of Arbroath by charter dated 10th October 1558, with a clause cum decimis inclusis, leaving only a small vicarage of £2, 16s. 4d. exigible from the estate, and the teinds of the remaining lands in the parish were of small amount. In these circumstances the Teind Commissioners, on 22nd July 1636, awarded a stipend payable not only from the parish but also from Inverkeillor and other parishes. … In Carmyllie there was an augmentation of stipend and decree of locality dated 9th February 1715. It refers to a decree dated 21st July 1618, whereby Carmylie was united to Panbride, and the minister of Panbride was to have a colleague to officiate at Carmylie, and also narrates the subsequent proceedings by which, on 9th July 1634, a stipend was provided for Carmylie partly from Inverkeillor. … So far as the reporter has observed, there is no case where the teinds have been reclaimed from another parish in circumstances like the present where there are no funds or lands to make up the loss that must be occasioned.” …

On May 31st, 1901, the Lord Ordinary appointed the objector, the minister of Inverkeillor, to intimate his objections to the ministers of Dunnichen, Kingoldrum, and Carmylie, and allowed them to lodge answers. On June 21st, 1901, the Lord Ordinary sisted the ministers of Dunnichen, Kingoldrum, and Carmyllie as parties to the process.

The minute lodged in process for the Rev. George Anderson, minister of Carmylie, the Rev. Hugh Macmaster, minister of Dunnichen, and the Rev. James C. Jack, minister of Kingoldrum, stated, inter alia, that the ministers were all stipendiaries holding public offices, the emoluments of which vested in them on induction to their respective benefices; that part of these emoluments consisted of payments of the teinds here in question, which were assigned by a Commission of Parliament for the support of the ministers of these parishes nearly three centuries ago, and had since been continuously enjoyed by them under localities which had repeatedly been ratified by the Court of Teinds; that no case had ever occurred in which teinds so assigned had been withdrawn, except where there were other teinds from which the deficiency on the modified stipend could be made good; that it must be presumed that the assignation of these teinds to the ministers of these parishes was conceived as a permanent one, and that if they were to be revindicated by Inverkeillor it must be upon the ground of the initial illegality of the locality; that there was no certain knowledge of the circumstances under which this procedure was adopted, and it must be presumed to have been done regularly and lawfully.

The answers lodged by the objector, the minister of Inverkeillor, made reference to objection 6, supra, lodged by him to the interim locality. Use and wont payments had been inserted in subsequent localities of

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the ministers' parishes without opinions being expressed on the competency of the gift and through the concurrence of the titular. These grants, which “were contingent on the teinds not being required by the minister of Inverkeillor, were sometimes made on misrepresentations by the minuters' predecessors. For instance, in or about 1635 Henry Patullo of Carmyllie obtained a grant on the representation, which turned out to be quite mistaken, that there were no teinds in Carmyllie. Teinds were subsequently found both in Carmyllie and Kingoldrum.” Neither the Crown nor the Court of Teinds could grant or decree the teinds of one parish for the support of the cure in another parish without the assent of the titular, express or implied, and the consent of the minister sought to be deprived when his necessity emerged. Any gifting of the teinds of one parish for the support of the cure in another was subject to the radical and inalienable right of the minister of the parish to the teinds thereof when and so long as he required them. The minister of Inverkeillor had no obligation to revindicate what was vested in him, and had not been parted with by him or his predecessors. His right and title to make objection to the diversion only arose in 1900. “(Ans. 6) The lands in Inverkeillor paying teinds to Carmyllie, Dunnichen, and Kingoldrum were never disjoined from these parishes and united with Inverkeillor. They are and always were part of the parish of Inverkeillor, and situated many miles distant from the said parishes, two of which indeed are in other presbyteries, viz., Dunnichen and Kingoldrum. Nor is the claim now put forward by the ministers of these strange parishes made in respect of lands either disjoined from them and united with Inverkeillor or vice versa.”

On July 16th, 1901, the Lord Ordinary ( Low) pronounced this interlocutor—… “Finds that the pursuer is entitled to have the stipend awarded by the Court made up to him from the teinds of his parish paid to the ministers of the said parishes of Carmyllie, Dunnichen, and Kingoldrum, and sustains the objections for the pursuer to said effect, and remits to the Clerk to allocate a proportional part of the teind required to make up the stipend upon the teinds paid to the ministers of said parishes, and finds no expenses due to or by any of the parties, and decerns.”

Opinion:—[ After stating the facts]—“It is conceded that the claim of the minister of Inverkeillor is not barred by the length of time during which the payments have been made, because until the recent augmentation he had no interest to object, as the teinds paid to the other parishes were not until then required for payment of his stipend. It is contended, however, that the claim should be disallowed, 1st, because the payments were made under decrees of the commissioners, which are final and cannot be set aside, and 2ndly, because there is no free teind in any of the parishes to which the payments are made out of which the stipends of the ministers could be made up in the event of the payments from Inverkeillor being withdrawn.

This is not a case in which the teinds paid to the other parishes are in respect of lands originally forming part of these parishes but disjoined from them and annexed to Inverkeillor, because although it does appear that some lands which are now in the parish of Carmyllie were at one time situated in Inverkeillor, the payments which are made to Carmyllie are not in respect of these lands, but of lands which always formed part of Inverkeillor.

It is, however, the case that if the payments are withdrawn from Dunnichen, Kingoldrum, and Carmyllie, the stipends of the ministers of these parishes will be diminished by that amount, as the teinds of the parishes are exhausted. I do not think that the question of a minister's right to reclaim teinds paid to another parish has ever arisen in similar circumstances, because, so far as I can ascertain, in all previous cases there were teinds in the parishes to which the payments were made, out of which the stipends of the ministers of these parishes could be made up.

It was contended that the fact that there are no free teinds in the parishes in question is fatal to the claim of the minister of Inverkeillor, and a passage in the judgment of Lord President Inglis in the case of Simpson v. Ewing ( 10 R. 313) was referred to. In that case the Commissioners of Teinds had in 1648 disjoined certain lands from the parishes of Luss and Kilmaronock and annexed them to Bonhill quoad omnia. The annexed lands thereafter paid augmented stipend to the minister of Bonhill, but continued to make the same payments of stipend as before the annexation to the ministers of Luss and Kilmaronock. In course of time, however, the minister of Bonhill obtained an augmentation which the teinds of his parish were not able to meet, unless he was entitled to reclaim the payments which had been made to Luss and Kilmaronock. It was held that he was entitled to do so, but in giving judgment the Lord President said—‘When the teinds of Bonhill are otherwise exhausted it is then for the first time that the right arises to the minister of Bonhill to insist upon having the stipend of the ministers of Luss and Kilmaronock removed as a burden from the disjoined and annexed lands, and placed upon other teinds in their parishes, if there be any such. If there be none such, then the ministers of these parishes of Luss and Kilmaronock cannot be displaced, and the stipend must continue to be paid to them; but if there is free teind in these parishes to provide for them otherwise, then the legal right of the minister of Bonhill is to have the whole of the teinds of the annexed lands given to him as stipend, if it be necessary for him, and the ministers of the other parishes compensated for that by transferring that portion of their stipend to the free teind of their own parishes.’

Now, that is a very clear statement of the law applicable to the case with which

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the Court was dealing, but it does not follow that it is applicable to a case like the present, where the payments are not in respect of lands originally forming part of the parishes to which they are made.

I think that it is undoubted that a parish minister has no claim for stipend out of any teinds except those of his own parish, and under all the old Acts the Teind Commissioners were authorised to modify stipends only out of the teinds of each parish. The commissioners, however, did sometimes assume jurisdiction to modify to ministers part of their stipends out of other parishes. The present case is an example of that.

The decrees under which the payments out of the teinds of Inverkeillor are made were pronounced in 1634, 1635, and 1636, and were therefore decrees of the Commissioners appointed by the Act 1633, c. 19. The Commissioners under that Act were authorised to ‘appoint, modifie, and set down a constant and local stipend and maintenance to ilk minister, to be paid out of the teinds of ilk parochin.’ It is difficult to read these words as authorising the Commissioners to modify a stipend to one parish out of the teinds of another parish, but as I have said, they sometimes did so. Then the Act declares that all decrees pronounced by the Commissioners shall ‘have the strength, force, and authoritie of a decrete sentence and Act of Parliament.’ That probably refers only to decrees granted within the scope of the authority given to the Commissioners, but if, in order to sustain the claim of the minister, in this case it were necessary to hold that the decrees were ultra vires and fell to be set aside, I should have great difficulty. I have, however, come to the conclusion that the decrees cannot be regarded as inconsistent with or as barring the minister's claim.

In the first place, I think that the inference from the circumstances brought out in the Teind Clerk's report is, that the Commissioners found that no adequate provision could be made for the ministers of Dunnichen, Kingoldrum, and Carmyllie, out of the teinds of these parishes, and that accordingly, either with the consent of the titular, or the titular not opposing, they decreed certain payments to be made out of the surplus teinds of Inverkeillor. But it seems to me to be a settled principle of teind law that, with certain exceptions, such as cases of decimœ inclusce rights, teinds, into whosoever hands they may come and by whatever title they may be held, are always subject to the burden of a suitable provision to the minister of the parish in which the lands are situated. I think that that is the principle upon which a minister has been found to be entitled to reclaim teinds paid to another parish, however long the payment may have continued, and I am unable to see any sufficient reason why the fact that the teinds of that other parish are exhausted should make any difference. I regard the decrees as giving the ministers of the other parishes a perfectly good title to the teinds with which they deal, but subject to the inherent burden under which all teinds are possessed.

I shall therefore give effect to the objections in so far as may be necessary to enable the minister of Inverkeillor to obtain payment of the full amount of his stipend, and shall remit to the clerk to rectify the locality accordingly.”

Argued for the reclaimers—Although the maxim decimœ debentur parocho expressed the general rule, the circumstances in this case were altogether exceptional. The payments sought to be reclaimed had been made from the teinds of Inverkeillor to the ministers of Dunnichen, Kingoldrum, and Carmyllie, under decrees of the Commissioners appointed by the Act 1633, c. 19, and they had continued to be paid without objection for nearly 300 years. Under the Act 1633, c. 19, the decrees of the Commissioners under the Act had the strength and authority of an Act of Parliament. It was not uncommon for the Teind Commissioners before the Union to modify to ministers part of their stipends out of the teinds of other parishes—Connell on Tithes, i. 442–444. It must be presumed that the decrees pronounced by the Commissioners were intra vires and regular and lawful. The onus lay on the minister of Inverkeillor to show that these decrees were irregular and that the ancient localities should be disturbed. There were probably good reasons—though these reasons could not now be accurately ascertained—for the decrees in question having been pronounced. These decrees were probably the result of an adjustment of the several parishes which prior to the Reformation had been under the common ecclesiastical administration of the Abbey of Aberbrothock, which rendered the allocation of the teinds as was done by the Commissioners equitable and proper—Duncan's Parochial Law, p. 5; Connell on Parishes, p. 13. The acquiescence of the ministers of Inverkeillor for nearly 300 years in the arrangement given effect to in these decrees barred the present incumbent of the parish from now questioning the validity of these decrees. It was also an important element that there was no free teind in any of the reclaimers' parishes out of which the stipends of the reclaimers could be made up in the event of the payments from Inverkeillor being withdrawn— North Leith case ( Johnston v. Heritors of St Cuthbert's), March 3, 1802, M. 14,834; Connell on Tithes, i. 444; Eyemouth case ( Smith v. Hunter), March 5, 1823, F.C.; Shaw's Teind Cases, p. 49; Common Agent in Locality of Abbotshall v. Minister of Kirkcaldy, November 22, 1815, F.C.; the Ballingry case ( Pennel v. Malcolm, July 20, 1869, 7 Macph. 1078), and the Bonhill case ( Simpson v. Ewing, December 8, 1882, 10 R. 313, prlesertim per Lord President Inglis, at 325, 20 S.L.R. 235), showed that the right of a minister to reclaim teinds depended on whether the stipends of the extraneous parishes could be made up from other teinds in these parishes. There was no case where teinds had been reclaimed from another parish if there did not exist teinds or other funds in that parish from which

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the loss could be made up. In the Rescobie case ( Minister of Rescobie v. Carnegy, February 5, 1869, 7 Macph. 514) the question was not raised. In the Portpatrick case ( Ferguson v. Officers of State, June 29, 1824, Shaw's Teind Cases, p. 73) there was an Exchequer Fund from which the loss to the minister by the withdrawal of the teinds was made up. The Exchequer Fund allowed by Parliament was now exhausted, so that the loss to the reclaimers could not be made up from that source.

Argued for the respondent, the minister of Inverkeillor—The Act of 1633, cap. 19, empowered the Commissioners to modify stipends out of the teinds of each parish only. The decrees of the Commissioners making allocations of stipend to the ministers of Carmyllie, Kingoldrum, and Dunnichen from the teinds of Inverkeillor could not affect the paramount right of the minister of Inverkeillor to a competent stipend from the teinds of his parish. The maxim decimœ debentur parocho had always been regarded as the rule. The burden of providing a suitable stipend to the minister of the parish was inseparable from the teinds of the parish— per Lord Robertson, Prestonkirk case, Connell on Tithes, ii. 334, App. No. 120. The diversion of the teinds of Inverkeillor to provide stipends for the ministers of those extraneous parishes was probably the result of the assent given by the Marquis of Hamilton, as titular of the teinds of Aberbrothock, in his own interest. At that time, and for many years afterwards, the remaining teinds of Inverkeillor were sufficient to provide a competent stipend for the minister of that parish. As long as this was the case the minister of Inverkeillor and his predecessors had no interest or title to object to any application of the surplus teinds either by the act of the titular or by decrees of the Lords Commissioners. That being so, the minister of Inverkeillor was non valens agere, and it was clear that what was done by the titular or the Commissioners could not bar the right of the minister of Inverkeillor to object, as he now did, immediately such objection became competent to him, i, e., as soon as, in virtue of the augmentation of his stipend, the remaining teinds became inadequate to furnish the stipend as augmented. No amount of possession of these teinds by the ministers of the extraneous parishes could result in their acquiring an absolute right to these teinds. They had held them all along subject to the contingent claim of the minister of Inverkeillor, as soon as the occasion arose when he had an interest to reclaim these teinds. The ministers of the extraneous parishes, as assignees of the teinds, could have no better right than their authors, the titulars, and the estate of titularity was always subject to providing an adequate stipend to the minister of the parish— Johnston v. Heritors of St Cuthbert's, supra; the Eyemouth case, March 5, 1823, F.C., Shaw's Teind Cases, 49. The Bonhill case, supra, and the Ballingry case, supra, were not in point, as they dealt with payments of teinds of ands disjoined from one parish to another. But the lands in Inverkeillor paying teinds to the extraneous parishes were never disjoined from these parishes and united to Inverkeillor. The cases of Eyemouth, supra, and Portpatrick, supra, were instances in which teinds had been reclaimed though there was no teind in the other parish from which the loss could be made up. Reference was also made to the reclamation of teinds by the minister of Meigle from the parishes of Dunkeld and Dowally, recorded in the Teind Records. There was, on the other hand, no record of any case in which the appropriation of the teinds of one parish to make up the stipend of another parish had been sustained to the prejudice of the minister of the parish whose teinds had been diverted.