Scottish Court of Session Decisions

Subject_1 MANSE.
Subject_2 SECT. II.

Who arc entitled to a manse. Who are liable to build and repair a a manse. Minister's claim for house rent.

The Heritors of the Parish of Cairney
v.
The Moderator and other Members of the Presbytery of Strathbogie

Date: 21 February 1786
Case No. No 24.

A manse may be declared sufficient in terms of the act 1663, though not built at the sight of the presbytery.

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The minister's manse in the parish of Cairney having become ruinous and insufficient, a new one was built by the heritors, without any application to the presbytery of Strathbogie, in whose bounds it was situated.

Afterwards the heritors insisted that it should be visited, and declared sufficient by the presbytery, to the effect of obliging the incumbent, in terms of the act 1663, to uphold it during his office.

The presbytery refused a visitation, and

Pleaded; It is only where a manse has been built under the authority of the presbytery, that the heritors are entitled, by the statute 1663, to demand a visitation, and to devolve on the minister the expense of such repairs as may be afterwards needed during his incumbency; and it seems reasonable that this should be the case. If the presbytery have not an opportunity of concerting the plan and situation of the building, they ought not to be made responsible for the suitableness of its accommodation; and without bestowing some attention on the progress of the work, they must be very ill qualified to judge whether it has been properly performed.

Answered; Though, when a minister is not furnished with a proper habitation, presbyteries be authorised to take the necessary measures for supplying that deficiency, it does not follow, that the incumbent is only compellable to fulfil the obligation imposed on him by the statute, where his manse has been erected under their immediate inspection. The reasons too which have been suggested for introducing such a regulation are quite unsatisfactory. If the building, as constructed by the heritors, is in any manner defective, or if its situation has been judiciously chosen, the incumbent may object, and the presbytery may refuse their approbation. But where no exception can be offered, it were surely most unjust, that the heritors who have voluntarily given obedience to the law, should, on that account alone, be forfeited of their right to demand reciprocal performance.

The cause was reported by the Lord Ordinary, when the Court, in pretty strong terms, expressed their disapprobation of the plea here maintained by the presbytery; and it was proposed by one of the Judges, to name persons of skill to inspect the building.

The Lord Ordinary therefore remitted to the presbytery to proceed in the visitation.

Lord Reporter, Ankerville. Act. Solicitor. General. Alt. W. Robertson. Fol. Dic. v. 3. p. 399. Fac. Col. No 261. p. 398.