ACT OF SEDERUNT FOR REGULATING THE PROCEDURE UNDER SECTION 10 OF THE CHURCH OF SCOTLAND (PROPERTY AND ENDOWMENTS) ACT, 1925, AND THE FOURTH SCHEDULE TO THE SAID ACT, AND FOR OTHER PURPOSES. [Edinburgh, 17th July 1925.]

THE Lords of Council and Session, in pursuance of the powers vested in them by the Act of Parliament 15 & 16 Geo. V., c. 33, entitled " An Act to amend the law relating to Teinds and to the Stipends of Ministers of the Church of Scotland and the tenure of the Property and Endowments of that Church, and for purposes connected therewith," do hereby repeal Book H, Chapter ii. of the codifying Act of Sederunt without prejudice to any application for augmentation competently made before the passing of the said Act, or to anything following on such application or done therein, and enact and declare as follows:--

Sittings of Teind Court.-1. That the Court of the Commissioners for Teinds shall meet once a fortnight on Friday during the sitting of the Court of Session at such hours as shall be convenient.

AUGMENTATION, MODIFICATION, AND LOCALITY.

[Section 10, 15 & 16 Geo. V., Ch. 33.]

1. Applications under Section 10, 15 & 16 Geo. V., ch. 33.-Applications under section 10 may be made by way of summons to the Court of Teinds. The pursuer shall state in the summons as accurately as he can the date when the last application for an augmentation was made, the number of chalders modified in stipend by the Court, the value of same (including any allowance for furnishing communion elements), calculated in accordance with the provisions of the Fourth Schedule of the statute, and the surplus teinds which the pursuer believes to be available to allow of augmentation in terms of the statute, and may be in the form of Schedule A hereto annexed.

2. Citation and Notice.-(a) As soon as a summons of modification and locality is raised and signeted, it shall be competent to the pursuer to cite the titulars and tacksmen of the teinds, heritors and liferenters, and all others having, or pretending to have, interest in the teinds of the parish, by a notice in writing affixed to the most patent door of the church, by the clerk of the kirk session or a police constable stating that the minister of the parish has raised a summons of modification and locality of his stipend which will be called in Court on being the day of next to come, not being less than six weeks after the date of the notice; and such clerk or constable shall return a certificate, subscribed by himself and two witnesses, that such notice has been affixed by him.

(b) The pursuer shall also cause notice to be inserted two several days in the Scotsman newspaper, and in a newspaper circulating in the county in which the parish referred to in such notice is situated, that he has raised a summons of modification and locality which will be called in Court on day of

advertisement.

, being the not being less than six weeks from the date of the first

(c) The mode of citation and the inducia above mentioned shall be deemed sufficient although one or more of the defenders shall be a pupil or minor out of the kingdom at the time such citation shall be given.

3. Citation of Crown.-When it is necessary to call the Lord Advocate on behalf of His Majesty or of the Crown, or any public department, he shall be cited upon the induciæ of six weeks.

4. Certificates and Executions of Citation.-Such certificate by the clerk or constable, with the notices in the newspapers above mentioned or certificate by the pursuer's agents of the due appearance in the requisite newspapers of such notices, and execution of citation to the Lord Advocate, shall be held as sufficient citation to all parties.

5. Death of a Defender.-When any of the defenders die during the dependence of the process, his heir may be called by a diligence in the manner and upon the inducia hitherto used; but such diligence may be executed either by a messengerat-arms or a constable or under the provision of the Citation Amendment (Scotland) Act, 1882.

6. Wakening of Process. When it is necessary to waken a process, it must be done by a summons or by a minute of wakening, in which all parties having interest must be called in the same manner, and on the same induciæ as in the original process.

7. Note of Stipend and Rental to be Lodged.-The pursuer of every process of modification and locality shall, as soon as the summons is signeted, lodge with the clerk of Court a note, stating the amount of the stipend, distinguishing how much is paid in money, and how much in victual, and in what species of victual, and the measure by which it is paid; and also stating the amount of the communion elements. The pursuer must also, at the same time, produce a rental of the parish, distinguishing the rent of each heritor.

8. First Enrolment.-As soon as the summons is called in Court the pursuer may enrol it in the Teind Motion Roll of the Lord Ordinary; and all concerned will be allowed to see the summons and writings therewith produced in the clerk's hands for fourteen days.

9. Second Enrolment.-After the elapse of the time for seeing, the pursuer may enrol the cause for a remit to the clerk to report whether there are any surplus teinds in the parish.

10. Third Enrolment. When the clerk's report is prepared, the pursuer may enrol the cause to consider same and thereupon

(a) If the clerk has reported that there appear to be no surplus teinds in the parish the Lord Ordinary may either pronounce a decree accordingly, or ordain the pursuer to lodge a condescendence giving detailed particulars of the surplus teinds in the parish alleged in the summons to be available for an augmentation in terms of the statute.

(b) If it shall appear that there are surplus teinds in the parish the Lord Ordinary shall find in general terms accordingly, and, at the same time, shall ordain the heritors or their agents to meet for the purpose of naming a person to be suggested to the Lord Ordinary as common agent for conducting the locality, and a short notice of this interlocutor shall be inserted in the Scotsman newspaper, and in a newspaper circulating in the county in which the parish referred to in said notice is situated, the expense thereof to be paid by the common agent out of the general fund (unless in any case the appointment of a common agent shall be dispensed with by the Lord Ordinary); and shall further ordain the heritors to produce their rights to their teinds, if they any have, in the hands of the clerk within a time to be specified in the interlocutor, not being less than three months from the date thereof; with certification that after the elapse of that time, a remit shall be made to the clerk to prepare a scheme of locality either according to the rental lodged by the pursuer in case no rights are produced, or according to the State of Teinds lodged by the common agent (or by the heritors, as the case may be) as to the rights and interests which are produced by the heritors.

(c) The Lord Ordinary may pronounce such other or further order as shall seem to him to be necessary or expedient.

11. Agent for Party may not be Common Agent.-No person who is agent for the minister or titular, or for any heritor in the parish, shall be appointed common agent.

12. Common Agent to prepare State of Teinds.-The common agent, after his nomination has been confirmed by the Court (or the heritors, as the case may be), on the expiry of the time specified within which the heritors shall produce their rights to their teinds, shall prepare and lodge a State of Teinds.

13. Preparation of Locality before the Lord Ordinary. After the elapse of the time for the heritors producing their rights to their teinds, a remit shall be made to the clerk to prepare a scheme of locality, either according to the rental lodged by the pursuer, in case no rights are produced, or according to the State of Teinds lodged by the common agent (or by the heritors, as the case may be), in terms of the 10th section of the statute; and this scheme so prepared shall immediately be approved by the Lord Ordinary as an interim scheme, according to which the minister's stipend shall be paid, until a final locality shall be settled, and the minister furnished by the common agent (or by the heritors, as the case may be) with an extracted decree, at the expense of the heritors, and for which he is entitled to take credit in his account.

14. Preparation and Approval of Rectified Locality.-If it shall appear, at any period or periods, that, under an interim locality, prepared and approved of in

terms of the foresaid provisions, the minister is unable through surrender of teinds or other causes affecting its efficacy to operate payment to any considerable extent of the stipend awarded to him, then and in that case it shall be competent to the Lord Ordinary, on the motion of the minister or other party interested, to appoint a new interim scheme of locality to be prepared, and also a state of arrears remaining due from the causes before specified, to be made up; and when the said rectified locality and state of arrears shall be approved of, the Lord Ordinary shall give decreet for the arrears, and the rectified locality shall subsist as a new interim rule of payment of the stipend then current, and until it be set aside by any other rule which may afterwards be granted, on cause shewn.

15. Heritors' Motion for Rectified Locality.-Under the reservation after provided as to expenses, it shall be competent to any heritor or heritors, the state of whose teinds has been materially altered by decreets of valuation, or by other circumstances, which may have occurred subsequent to the approval of an interim scheme, to apply for a rectification of the locality, giving effect to the new or corrected State of Teinds; and when the rectified locality shall be approved of by the Lord Ordinary as a new rule of payment, he shall, at the same time, appoint a state of arrears to be prepared, if the state of the process and the interests of the parties render this necessary, with power to him to give decreet for the same.

16. New Interim Scheme on Account of Surrenders.—Where any new interim scheme or schemes shall be rendered necessary by surrenders, or by production of rights made by heritors, or by any other unexpected emergency occurring subsequent to the previous interim scheme or schemes, it shall be competent to the Lord Ordinary to lay the expense of the new interim scheme and state of arrears, or such part thereof as may appear proper, on the party whose surrender, or productions or proceedings as aforesaid, shall make such new interim scheme necessary, unless such heritor or heritors shall be able to instruct a reasonable cause to the contrary to the satisfaction of the Lord Ordinary; in which last case the expense shall be defrayed by the common agent (if any).

17. Preparation of Final Locality. That as soon as proceedings with regard to the interim locality are concluded, a scheme of a final locality shall be forthwith prepared, and the common agent shall distribute copies of this state and scheme among the agents for the heritors, as soon as may be after such state and scheme are prepared; and no new production shall thereafter be received, except upon payment of such expenses as may be occasioned by such new production, to be modified by the Lord Ordinary.

18. Disposal of Objections to Final Locality.-After the foresaid state and scheme shall have been distributed among the heritors, the Lord Ordinary shall ordain objections thereto to be given in by any of the heritors who think themselves aggrieved by the proposed mode of allocation; and the Lord Ordinary may either hear parties viva voce upon such objections, and the answers that may be made thereto at the bar; or he may, if he shall see cause, allow all concerned to give in written answers to such objections within such time as he shall think proper to appoint, and shall thereafter proceed, in so far as regards any application for prorogating the time for giving in papers, in the manner directed by section 12 of the Court of Session Act, 1825.

19. Review of Lord Ordinary's Judgment. When the Lord Ordinary has pronounced a judgment, other than a finding or decree as to surplus teinds, it may be reviewed by the Division to which the cause belongs by giving in a note, which must be lodged within twenty-one days after the date of the judgment complained of, and the procedure on that note shall be the same as in reviewing judgments of a Lord Ordinary in the Court of Session.

20. Form of Extract of Decreets of Locality and Warrants of Charge. Decreets of locality and warrants of charge shall be issued, in the form and to the effect of the Schedules B and C respectively hereto annexed, as nearly as the circumstances of each case may admit of: Reserving always right to parties so advised, to take full extracts, according to the ancient form, when they require the same, in terms of the statute; Provided also, that the dues of extract in whatever form the same may be given out, shall be charged in precise conformity with the statute.

And the Lords appoint this Act to be inserted in the Books of Sederunt, and to be printed and published in common form. J. A. CLYDE, I.P.D.

SCHEDULES REFERRED TO.

SCHEDULE A.

Summons of Modification and Locality.*

GEORGE THE FIFTH, &c.—Whereas it is humbly meant and shewn to us by our lovite(s), The Reverend (name), the present Minister of the Parish of in the Presbytery of and County of ‚—Pursuer; That the last application for an augmentation of the stipend of this parish was made on (being the date of the signeting of the summons): That the augmentation then granted was chalders in addition to the then old stipend and allowance for furnishing the communion elements, making the amount of the present stipend, as last modified by the Court of Teinds, chalders, with £ for furnishing the communion elements (or as the case may be), which modified stipend was found, in the Decree of Locality following upon said modification to be equivalent to (B. F.... P.... L. ...) of meal, (B. F. P. L....) of barley and £ of money sterling, inclusive of the allowance for communion elements (state precisely the totals of the different kinds of victual and of the money): That the value thereof, converted into money according to the provisions of the Fourth Schedule of the last-mentioned Act, is £ : That after deducting the said sum of £

...

...

there are, according to the State of Teinds in the last locality process (or otherwise as the pursuer may specifically condescend), surplus teinds in the parish amounting to £ or thereby available for an augmentation of the pursuer's stipend: That the following are the whole parties whom it is necessary to call as defenders in the present action, videlicet:—(Here insert the names and designations of the defenders, specifying the characters in which they are called): THEREFORE the Lords of our Council and Session, Commissioners appointed for Plantation of Kirks and Valuation of Teinds, per the Lord Ordinary in Teind causes, OUGHT and SHOULD find that there are surplus teinds in the parish available for an augmentation of the pursuer's stipend in accordance with the provisions of section 10 of the last-mentioned Act, and OUGHT and SHOULD modify, settle and appoint a constant local stipend, with the allowance for furnishing communion elements, to the pursuer and his successors in right of the emoluments of the cure of said parish, and establish and proportion a locality of the same; and DECERN for payment thereof to the pursuer and his successors in right of the emoluments of the cure of said parish against the heritors, titulars, tacksmen, and others, intromitters with the rents and teinds of the said parish, and that at the terms following, videlicet :—the money stipend and allowance for furnishing the communion elements at Whitsunday and Martinmas yearly, by equal portions, and the value of the victual in money according to the highest fiars' prices of the same in the county of between Yule and Candlemas yearly, after the separation of the crop from the ground, or as soon thereafter as the said fiars' prices shall have been struck, beginning the first payment thereof at Whitsunday (next) for one-half of the said money, and the other half at Martinmas thereafter, and the value of the victual betwixt Yule and Candlemas (next), or as soon thereafter as the said fiars' prices shall have been struck for crop and year ; and so forth, yearly and termly thereafter, in all time coming; and for the greater expedition the pursuer is willing to refer the verity of the rental of the parish herewith produced to the heritors' oaths simpliciter, instead of all further probation; and in case of any of the said defenders appearing and occasioning unnecessary expense to the pursuer in the process to follow hereon, such defender or defenders OUGHT and SHOULD be DECERNED and ORDAINED, by decree foresaid, to make payment to the pursuer of the sum of £100 sterling, or of such other sum as our said Lords shall modify, as the expenses of the process to follow hereon, besides the dues of extract, conform to the foresaid Acts of Parliament, writs libelled, laws, and daily practice of Scotland, used and observed in the like cases, as is alleged.—OUR WILL IS HEREFORE, and we charge you that on sight hereof ye pass, and in our name and authority lawfully SUMMON, WARN, and CHARGE the defenders, personally or at their respective dwelling-places, if within Scotland upon six days' warning, and if in Orkney or Shetland upon forty days' warning, and if furth of Scotland by delivering a copy hereof at the office of the Keeper of the Record of Edictal Citations at Edinburgh, in terms of the statute and Act of Sederunt thereanent, and that upon sixty days' warning; and the tutors and curators or other guardians of such of the defenders as are minors, if they any have, for their interest, also at the said office of the Keeper of the Record of Edictal Citations at Edinburgh, on the same induciæ as the minors themselves, or by the notices and in the forms prescribed by the Statute 15 & 16 Geo. V., c. 33, and relative Acts of Sederunt, and that upon six weeks' warning; and all others having or pretending to have interest in the said matter, to compear before our said Lords Commissioners for Plantation of Kirks and Valuation of Teinds, at Edinburgh, or where they may then happen to be for the time, the day of Nineteen hundred and in the hour of cause, with continuation of days, to answer at the instance of the pursuer in the matter

*Note.-When the Church of Scotland General Trustees are the Pursuers or the Pursuer's stipend has been standardised, this form may be applied mutatis mutandis.

:

libelled That is to say, the defenders to hear and see the premises verified and proven, and decree and sentence pronounced, conform to the conclusions above written, in all points, or else to allege a reasonable cause in the contrary, with certification as effeirs.-According to Justice, as ye shall answer to us thereupon: Which to do we commit to you and each of you full power by these our letters, delivering them by you duly executed and endorsed again to the bearer. Given under our signet at Edinburgh, the in the (To be signed by the Clerk of Teinds.)

year of our reign, 19

day of

SCHEDULE B.

Form of Extract Decreet of Modification and Locality.*

At Edinburgh, the

day of

Sitting in judgment, the Lords of Council and Session, Commissioners appointed for Plantation of Kirks and Valuation of Teinds, in the process of Modification and Locality raised and pursued at the instance of the Reverend Minister of the Gospel, of the Parish of against the Officers of State, as representing His Majesty, for the interest of the Crown, and also against the whole Heritors, Titulars, Tacksmen, Liferenters, and others, intromitters with the Rents and Teinds of the said Parish, modified, decerned, and ordained, and hereby modify, decern, and ordain the constant Stipend and Provision of the Kirk and Parish of to have been for crop, and year Nineteen hundred and yearly, since and in time coming, such a quantity of Victual, half Meal, half Barley, in Imperial Weight and Measure, as shall be equal to Chalders of the late Standard Weight and Measure of Scotland, payable in Money, according to the highest fiars' prices of the County annually, with chalders of augmentation payable in money according to the Standard Value in terms of the Act 15 & 16 Geo. V., c. 33 (or with the sum of £ sterling of augmentation in terms of the Act 15 & 16 Geo. V., c. 33, being the amount of the surplus teinds in the parish available to meet pro tanto the statutory augmentation of chalders), and that for Stipend, with Sterling for furnishing the Communion Elements, payable the money stipend and allowance for communion elements at Whitsunday and Martinmas yearly by equal portions, and the victual betwixt Yule and Candlemas yearly after the separation of the crop from the ground or as soon thereafter as the Fiars' Prices of the County of shall be struck. Which Modified Stipend, and Modification for furnishing the Communion Elements, the said Lords decern and ordain to be yearly paid to the said Kirk and Parish, by the Titulars and Tacksmen of the Teinds, Heritors, and Possessors of the Lands and others, intromitters with the Rents and Teinds of the said Parish, out of the first and readiest of the Teinds, parsonage and vicarage of the same, conform to the Division and Locality following, viz. (the Locality to be taken in here in figures, and then say), beginning the first term's payment thereof, for the said crop and year Nineteen hundred and as at the term of Whitsunday, Nineteen hundred and

as regards the money stipend and communion elements, and as regards the victual stipend betwixt Yule and Candlemas, after the separation of the crop from the ground, or as soon thereafter as the fiars' prices of the County are struck; and so forth yearly and termly in all time coming. The said Lords, as Commissioners foresaid, also decerned and ordained, and hereby decern and ordain, the whole Heritors of the said Parish, to make payment to Common Agent in the process of their respective shares of the sum of £ sterling, being the amount of the account of the taxed expenses incurred by him in obtaining the Decree of Locality; As also of their respective shares of the sum of £ sterling, being the expense of Extracting this Decreet and proportioning the Expenses among the Heritors, including therein Two pounds sterling, of fee-fund dues; making in whole £ sterling, and that in proportion to their several Teind Rentals in Process, and Scheme of Division made up and certified by the Clerk as relative hereto. And the said Lords of Council and Session, Commissioners foresaid, Grant Warrant to Messengers-at-Arms, in His Majesty's Name and Authority, to charge the Titulars and Tacksmen of the Teinds, Heritors, Feuars, Farmorers, Wadsetters, Liferenters, Factors, Chamberlains, Tenants, Occupiers, and Possessors of the Lands and others, intromitters with the Rents and Teinds of the said Parish of Defenders, personally, or at their respective dwelling-places, if within Scotland, and if furth thereof, by delivery of a Copy of Charge at the Office of the Keeper of Edictal Citations at Edinburgh, to make payment of the foresaid Stipend and Communion Element Money, each of them for his or her own part and portion thereof, conform to the Division and Locality above set down, and that at the terms of payment above expressed,-in terms and to the effect contained in the Decreet of Locality and Extract above written, and here held as repeated brevitatis causa; as also of their respective proportions of the foresaid sums of Expenses, and Dues of Extract, conform to the Scheme of Division above referred to; and that to the Reverend Pursuer, and his successors in right of the emoluments of the cure of said parish, and to the said Common Agent, respectively, within ten days if within Scotland,

* See note on last page.