Rev. W. Paul, D.D. v. James Dyce Nicol, and Others [1871] UKHL 2_Paterson_1944 (22 June 1871)

Rev. W. Paul, D.D.,     Appellant


James Dyce Nicol, and Others,     Respondents

June 22, 1871.

Subject_Teinds — Valuation — Old Decreet — Parcel or no Parcel — Moss Lands —

In a process of augmentation of stipend by the minister, the onus is upon him to prove, that there are unvalued teinds out of which the augmentation may be paid. Where, therefore, P., the minister, alleged, that a certain moss was not included in a valuation of 1682, such moss being then a pertinent of other lands, which alone were valued, and failed to prove this:—

Held (affirming judgment), That the decreet must be taken to have included the moss in question. 1

_________________ Footnote _________________

1 See previous report 7 Macph. 967: 39 Sc. Jur. 417: 41 Sc. Jur. 628. S. C. 9 Macph. H. L. 121: 43 Sc. Jur. 428. See also ante, p. 1458.

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The pursuer appealed against the interlocutors and stated in his printed case the following reasons for reversing the interlocutors:—1. Because it is res judicata that the valuation of 1682 was confined to the special subjects enumerated in a rental produced by the pursuer, as these were possessed by the tenants named in the decree. 2. Because it is res judicata that, of the subjects so enumerated, Barclayhill, Calsayend, and Meddens were not valued for teind, in respect the Commissioners refused to include them in the valuation on the ground, that they yielded only a moss rent. 3. Because the onus rested upon, and has not been discharged by, the respondents of proving, that the portions of land which are brought into question in this appeal formed part of the subjects valued by the decree of 1682. 4. Because had the onus rested primarily upon the appellant, he has adduced evidence sufficient to discharge it, or at least to shift it on the respondents. 5. Because the appellant has proved by the best attainable evidence, viz. a plan of the lands and barony drawn in 1783, by order and in conformity with the instructions of the then proprietors, what was the position, extent, and boundaries of the valued subjects. 6. Because Calsayend, which was excluded from the valuation of 1682 on the ground, that it yielded only a moss rent, must be held to be co-extensive with the Moss of Calsayend, and cannot be limited to the arable farm which is shewn on the map of 1783, and which had been formed out of a small portion of the said moss. 7. Because it plainly results from the proceedings of the Commissioners in the valuation and from the terms of the decree, that the moss lands included within the precincts of the barony were not intended to be and were not valued for teind. 8. Because the respondents have failed to prove, that Redmyre was, in 1682, part of the lands of Badentoy possessed by James Mowat, and the appellant has shewn, by the plan of 1783, that it lay beyond the limits of Badentoy,—distinct from that subject, and other valued subjects, and because it is therefore unvalued for teind. 9. Because Bishopston belonged to the class of unvalued moss lands, having been, in 1682, described as a bruntland on the Hairmoss, and because neither it nor the said Hairmoss was referred to or included in the summons or decree of valuation. 10. Because the respondents have failed to prove, that it formed part of the valued farms of Badentoy or Cookstoune possessed by the Mowats, and the appellant has adduced sufficient evidence to determine its position, extent, and boundaries in 1783, and to shew, that it lay beyond the ancient limits of Badentoy and Cookstoune, and was separated from them by a broad and deep moss, and because it is unvalued for teind. 11. Because the respondents have failed to prove, that the other moss lands above referred to, which are delineated on the plan of 1783, were pertinents of the valued farms, or were possessed by the tenants of those farms, at the date of the valuation, for the purpose of pasturage or otherwise, and because these moss lands are thus inferentially, and by positive statement on the face of the decree, unvalued for teind. 12. Because the appellant is entitled, as against all the respondents, to the whole expenses incurred by him during, and in consequence of, his litigation with them in the Court of Session, and because the appellant is not liable in any expenses to the respondents.

The respondents in their printed case stated the following reasons for affirming the interlocutors:—1. Because the appellant has not proved, that the lands of Calsayend, mentioned in the decree of 1682, comprehended any other or greater area of ground than that marked “Causeyend” on the plan of 1783, and in particular because he has not proved, that the said lands of Calsayend comprehended the lands specified in his petition of appeal. 2. Because it is established by the evidence, that the said “lands of Calsayend” did not comprehend any other or greater area than that marked with the name “Causeyend” on the plan of 1783. 3. Because the appellant has not established, that Bishopstown, Redmyre, and the other lands mentioned in his petition of appeal were not valued by the decree of 1682. 4. Because the said decree is not limited to arable lands, but includes the whole lands enumerated in the rental, with their pendicles and pertinents, except the lands of Barclayhill, Calsayend, and Meddens. 5. Because it is proved by the evidence, that the Hairmoss, Bishopstown, Redmyre, and the other lands in question, were comprehended within the decree of valuation of 1682. 6. Because the interlocutor of 4th February 1870 bears to have been and was in fact pronounced of consent, and separatim, because that interlocutor was not submitted to review of the Inner House. 7. Because the judgments of the Court below in so far as complained of, are well founded both in fact and in law.

The previous appeal is reported, ante, p. 1458; L. R. r Sc. Ap. 127: 5 Macph. H. L. 62.

Sir R. Palmer Q.C., and Anderson Q.C., for the appellant.

The Lord Advocate (Young), and Forbes, for the respondent.

The Lord Chancellor, after fully stating the facts and contentions, said, he agreed with the judgment of the Lord Justice Clerk in the Court below, and that, the burden of proof in this case falling on the appellant, he had failed to establish his case.

Lord Chelmsford.—My Lords, I agree with my noble and learned friend, upon this short ground, that the onus of proving, that there were unvalued teinds in the parish lay upon the appellant, the minister, and that he has failed to give sufficient proof upon this subject.

Now that the burden of affirmative proof properly lay upon him appears to me to be clear from the nature of the proceeding and also from the interlocutors which have been pronounced. The

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proceeding is a process of augmentation and modification, and the Court of Teinds, by an interlocutor of the 1st of July 1863, augmented and modified the stipend, but they at the same time declared, “that this modification and the settlement of any locality thereof shall depend upon its being shewn to the Lord Ordinary, that there exists a fund for the purpose.” Now it is quite clear, that the minister could not have the benefit of the augmentation unless he proved affirmatively, that there was a fund out of which it could be obtained. In the 10th and 11th condescendence of his revised objections (I will leave the 14th out of the question) he states, that there were certain lands (naming them) which were unvalued. This is denied by the heritors; and they at the same time contend, that he is estopped from averring that there were any unvalued lands in consequence of the decree of valuation of 1682.

The Court of Teinds, by the interlocutors of 1865, “Find, that the teinds of the lands of Barclayhill, Causeyend, and Meddens mentioned in the decree are not valued by the decree: Find, that the terms of the said decree are not such as to exclude a proof on inquiry before answer, that the teinds of the parcels of lands mentioned in the 11th article of the condescendence or any of them are unvalued.” And they remit to the Lord Ordinary to direct such inquiry as may be rendered necessary by this interlocutor.

Now this interlocutor of the Court of Teinds was affirmed by this House, and when the case was remitted to the Lord Ordinary to direct such inquiry as might be rendered necessary by it, the question was, What was the proof and inquiry which was to be made? It was whether or not it was the fact, that the teinds of the parcels of land mentioned in the nth condescendence are unvalued. Upon whom lay the affirmative of that? Upon the person who avers it. It was not for the heritors to prove, that these lands had been valued, but it was for the minister to prove distinctly under this interlocutor that the lands were unvalued. And that appears to have been the construction put upon this interlocutor, both by the Lord Ordinary and by the Court of Teinds afterwards upon the interlocutor which is appealed from, because they find distinctly, “that the objector has failed to prove that any part of the lands of Cookstown’ or of the barony of Portlethen, other than the lands of Meddens, Barclayhill, and Calsayend remain unvalued. Both the Lord Ordinary and the Court of Teinds have put the same construction upon the interlocutor which I have put, namely, that the proof lay upon the minister, and that he has failed to give such proof. I entirely agree with my noble and learned friend, that the proof has failed, and that being so, I think it unnecessary to travel again over the same ground. I agree with him entirely in thinking that this interlocutor ought to be affirmed.

Lord Colonsay concurred.

Interlocutor affirmed, and appeal dismissed with costs.

Solicitors: Appellant’s Agents, G. M. Paul, W.S.; Martin and Leslie, Westminster.— Respondents Agents, Hill, Reid, and Drummond, W.S.; William Robertson, Westminster.