Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES FERGUSON OF KILKERRAN.

Walter Anderson, Minister of the Gospel at Chirnside,
v.
The Executors of George Howe, the late Minister

Date: 25 June 1757

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This case is reported in Fac. Col (Mor. 14,839,) and by Kames, (Sel. Dec. 129, Mor. 14,843.) Lord Kilkerran has the following note and observations upon it:—

“The act of Parliament does not say that the alteration of the stile shall not accelerate the right of parties, but only that it shall not accelerate the term of payment; in other words, the alteration of the stile does not alter the term when dies venit, but it does alter the term when dies cedit nevertheless.

June 24, 1757.—It carried seven against six that the minister not having survived Michaelmas, old stile, his executors have no right to the half year's stipend due at the term of Michaelmas.

Were this question with the executor of a minister, who had been settled after the statute, I cannot help thinking that the legal term was to be reckoned by the new stile, just as no other stile had ever been known ; for that clause in the statute, that it shall not accelerate the term of payment, appears to me only to respect voluntary contracts prior to the statute, in the terms whereof the statute was not intended to make any alteration; for example, where a tenant had got a tack for a certain number of years prior to the statute, and had bound himself to pay at certain terms, the statute provides that it should not be understood to make him pay sooner. Another instance may occur,—An heritable bond does not bear annualrent de die in diem, but the annualrent is due by terms; and if the creditor die before Whitsunday, the executor will have no right to that term's annualrent; and accordingly, where a bond is granted, prior to the statute, and the creditor dies after the term of Whitsunday new stile, but dies before the term old stile, which is the term in his bond, the executor will not get that term's annualrent, because it was not due by the debtor, whose term of payment is not accelerated by the statute. But in both these cases of the tack and heritable bond, granted after the statute, the new stile is the rule, and can have no doubt but it would also be so with respect to minister's stipends, where the minister was settled after the statute. And if that be so, the question comes, will it make any odds that in this case he was settled before the statute ?

And it would appear to me to make none ; because, as I have said, I consider that saving clause in the statute only to respect voluntary contracts, in the terms whereof the statute was not intended to make any alteration. There is no contract betwixt a minister and a parish at his admission, that they shall not be bound to pay his half-year's stipend at Michaelmas and no sooner. Now all that can be said is, that old Michaelmas is the legal term, and so long as it remains to be so, he cannot seek his stipend sooner, but so soon as the legislature alters that legal term, the new term becomes the legal term. Nor is this contradicted by the saving clause, which only respects terms of payment settled by voluntary contracts prior to the statute,—that is, there, it is the contract and not the law, which settles the term of payment ; and as to what is said, that the saving clause is not only general as to all contracts, but says expressly that it shall comprehend every thing, that is or shall become payable by any Act of Parliament, the answer is, that that refers only to particular statutes directing to particular payment, but can never of acts of Parliament respecting the general dispensation of law, otherways this absurdity should follow, that the exception should be as broad as the rule, so that the act should, at the same time it altered the kalender, have born an exception which should at the same time destroy the statutory part.”