Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 STIPEND.
Subject_3 Construction of the Act 1690, c. 23.

Mr William Wallace, Minister at Drummelzier,
v.
William, Earl of March and Ruglen

Date: 29 June 1773

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[Faculty Collection, VI. p. 190; Dictionary, 14, 812.]

Monboddo. The Act 1690 gives nothing to ministers at all. There is an exception if the minister is in possession of feu-duties; but the minister here has a modified stipend, and the feu-duties are no part of that stipend. After the modification, the minister has no possession of the feu-duties: every thing beyond that modification is in the possession of the patron.

Gardenston. The noble lord plays for a small stake. I do not think that he should win it. There is an exception in the statute when feu-duties are part of the minister's stipend, or where the minister is in possession of them. How then can the patron claim?

Pitfour. It matters not whether the stake be great or small. As far as the exception reaches, it is the same thing as if the Act 1690 had never been made.

Alva. The minister's title still continues as it was before the modification.

Auchinleck. I thought, on examining this case, that the feu-duties were due to the minister, and that the argument from the Act of Parliament did not conclude. There is an exception where there is either modification or possession by the minister. In either case the patron has no right. The Act of Parliament has equiparated ten years' possession to a decreet of modification.

Coalston. As to services, I was misled by the Act 1633, but which I now observe relates to lords of erection, not to beneficed persons.

Hailes. The services are not prestable by the vassal in person; so are not personal. They are determined, not according to use and wont, so are not general. It follows that they are not taken away either by the statute of Geo. I. or by Geo. II. The minister here is defending the rights of his benefice; his own interest will not equal his expenses; therefore Lord March ought to pay costs.

On the 29th June 1773, the Lords repelled the defences, and found expenses due.

10th August 1773, adhered.

Act. G. Ogilvie. Alt. Ilay Campbell. Reporter, Coalston.