Forstalling. - Simoniacal Practices. - Obligation by a Minister not to bring an Augmentation.
The Rev Dr Boyd v. The Earl of Galloway
Date: 22 January 1794 Case No. No 109.
An obligation granted by a minister not to bring a process of augmentation in consideration of a sum of money received by him from the patron, is not binding.
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In 1769, the Earl of Galloway, patron and titular of the parish of Penninghame, granted a bond of annuity for L. 20 to Dr Boyd, the minister, which he afterwards gave up on receiving L. 300 Sterling.
Of the same date with the bond, the minister granted a missive to the Earl binding himself ‘never to ask or sue for any augmentation of glebe or stipend.’
The Doctor, nevertheless, having brought a process of augmentation, the Earl, in bar of it, founded on the missive.
The Court, considering the transaction as pactum illicitum, repelled the objection.
The Earl, in a reclaiming petition,
Pleaded; A minister is the unlimited proprietor of his stipend. He may assign it either gratuitously or for an onerous cause, during his life, although he should thereby render himself incapable of supporting his rank. As therefore an assignation from the pursuer, conveying to the Earl his whole stipend, on receiving the L. 300, would have been binding on him, a fortiori must the missive in question, which only precludes him from augmenting it.
The interest of the benefice is not hurt by the bargain. On the contrary by means of it the heritors will not have it in their power to plead a recent augmentation against the next incumbent, who from the progressive improvement of the country, will be entitled to a larger stipend than the present pursuer could have expected.
The Lords refused the petition without answers.
For the Petitioner, Dean of Faculty Erskine.
Fol. Dic. v. 4. p. 25. Fac. Col. No 97. p. 217.
