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United Kingdom House of Lords Decisions |
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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Robert Lord Blantyre, and George Season of Barnes Esq; v. Mr. John Currie, Minister of Haddington [1714] UKHL Robertson_88 (1 June 1714) URL: http://www.bailii.org/uk/cases/UKHL/1714/Robertson_88.html Cite as: [1714] UKHL Robertson_88 |
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Page: 88↓
(1714) Robertson 88
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Case 24.
Subject_Teird Court, Minister's Stipend. —
A Parish being disjoined the stipend formerly modified upon the whole, a allocates upon the original remaining parish, notwithstanding the use of payment had remained for so years, and the same after the disjunction as before.
It was not necessary to call the heritors of the new parish, as parties.
It was no sufficient defence, that the stipend still remaining was above the minimum setteled by the parliament.
A stipend is objected to as above the maximum of 1633, c. 19. but this stipend is allocated and decreed to be paid.
Mr. Robert Ker, Minister of Haddington, the respondent's predecessor, in February 1650, obtained a decree of the then Lords Commissioners for plantation of Churches and valuation of Teinds, whereby a stipend of three chalders of wheat, and three chalders of barley Linlithgow measure, 400 l. Scots, in money, and 100 l. Scots for communion elements, was modified and settled on Mr. Ker, and his successors, ministers of the said parish. This stipend was not by any subsequent decree allocated or apportioned on the several heritors, or possessors of Teinds within the parish, but they by some voluntary allotment and proportions made and agreed to among themselves, paid the same to Mr. Ker and his successors for several years.
A considerable part of the parish of Haddington was afterwards, in 1692, by decree of the then Lords Commissioners for plantation of Churches and Valuation of Teinds taken away, and made a new parish, by the name of the parish of Gladsmuir. The stipend of the minister of Haddington, being thereby diminished about 20 l. sterling, this last mentioned decree appointed the same to be made up out of the free Teinds of the parish of Haddington, which were more than sufficient for that purpose. But the then incumbent of the parish of Haddington, during his life, never demanded or received from the heritors mere than the proportions of the stipend which had been in use to be paid before the disjunction of the new parish; and the proportions of the stipend paid formerly to the minister of Haddington, out of the lands dismembered from the said parish were paid to the minister of the new parish of Gladsmuir.
The respondent, was admitted minister of the parish of Haddington in 1704; and in 1707 he brought an action before the Lords of Session, as Commissioners for plantation of Churches and valuation of Teinds, against all the heritors and proprietors of lands and Teinds within the parish, for allocating and proportioning the stipend which had been modified in 1650. The heritors and proprietors having made appearance, insisted, that the Earl of Winton and others, within the new parish of Gladsmuir,
Page: 89↓
No date.
It was afterwards contended, that no action ought to have been brought for augmenting a stipend, which the heritors for above 50 years had been accustomed to pay. After answers for the respondent, the Lords of Session, “found that the use of payment by private paction, could not preclude a locality.”
It was further contended, that there still remained a very competent stipend, far exceeding the minimum settled by act of parliament, being 846 l. 14 s. 2 d. Scots, with a manse and glebe, and 80 1, Scots prebend's fee, and grass of the church-yard, sufficient for a horse and two cows; and that if the stipend was diminished by the separation, the minister's trouble was also lessened. After answers for the respondent, the Lords of Session on the 26th of November 1707, “repelled the defence.” And by an interlocutor on the 7th of Janaury 1707–8, “sustained the said decreet of modification in 1650, and found that the stipend modified thereby ought to have been allocated.”
They afterwards remitted it to the Lord Ordinary, to hear parties upon their several rights and to prepare a locality, which having been prepared after sundry hearings before the ordinary, and reported, the Lords of Session on the 1st of February 1709, “approved of the locality made by the Lord of Fountainhall in so far as the same continued the former use of payment as a rule pro tanto, and for making up what the stipend was diminished by the erection of Gladsmuir, ordained the teinds to which the heritors or proprietors of the lands had no right to be allocated in the first place, and the teinds of other men's lands in tack in the next place.” And of same date “ordained the said stipend modified in 1650, to be yearly paid to the respondent, and his successors, ministers of the parish of Haddington,” conform to the locality contained in, the decree.
By this locality, the whole additional stipend was laid upon the teinds of the appellant, to which Walter Lord Blantyre had right as titular of the parish.
Entered, 24 April 1713.
The appeal was brought from “several interlocutory sentences of the Lords of Council and Session, as Commissioners for planting, of Kirks on the behalf of” the respondent.
Walter Lord Blantyre dying before the cause was heard, the House on the petition of the appellant Robert Lord Blantyre, his brother, and heir, revived the appeal, and ordered him to be made party thereto.
Heads of the Appellant's Argument.
1617. c. 3.
1617. c. 19.
The respondent, even after the dismembering of the parish had still remaining a very competent stipend, far exceeding what is
Page: 90↓
The several heritors had been in use of payment of a certain quantity of stipend, for upwards of 50 years, the proportions therefore ought not now to be heightened ; and consequently no augmentation granted to the respondent.
If any augumentation were necessary, or if the quota appointed by the decreet in 1650 should still continue the rule, then the whole proprietors, both the present and those who were dismembered, should bear a proportion; for it was against reason to allocate upon any part the stipend modified against the whole. Since these heritors had procured the said new erection for their own conveniency and advantage, it is unreasonable that thereby the other proprietors should be subjected to the payment of a greater proportion than formerly, and that those who procured the said new erection, should continue still to pay only their former proportion.
Walter Lord Blantyre purchased the said teinds after the disunion of the said parish, and finding that the minister had at that time a sufficient stipend, he paid an adequate price and valuable consideration for them.
Heads of the Respondent's Argument.
If the respondent had had a decree of allocation, as he had not, and though a part of such allocated stipend had by the decreet of erection been annexed to Gladsmuir, he could not have been deprived of his modified stipend. For though the Lords Commissioners had a power of augmenting, they had no power of diminishing minister's stipends; and so sensible were they of this, that by a clause in their decreet of 1692, it was provided, that it should not prejudice the former stipend of Haddington.
Page: 91↓
That stipend was about 846 l. 14 s. 2 d. Scots, with a manse and glebe, what was suggested respecting the prebend's fee being untrue.
The stipend being modified, and no allocation or apportioning thereof legally established, such use of payment could not preclude the respondent of his right.
The heritors and proprietors of the parish of Haddington, as it stood at the commencement of this action, being only liable to the payment of the said stipend, there was no reason that any others should be made defenders.
Judgment, 1 June 1714.
After hearing counsel, It is ordered and adjudged that the petition and appeal be dismissed, and that the several interlocutory fentences, or decrees therein complained of be affirmed.
Counsel: For Appellants,
Rob. Raymond.
John Pratt.
For Respondent,
P. King.
