In an united parish, where the teinds of the parishes of which it is composed belong to different titulars, an augmentation of stipend must be allocated on them, in proportion to the proven rental of each parish.
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The parishes of Kirkpatrick-Fleming and Kirkconnel, were united about the end of the last century. The Earl of Hopetoun is patron and titular of the former, and Sir William Maxwell of the latter. They present a Minister to the united parish alternately.
In the parish of Kirkpatrick-Fleming, the teinds are chiefly in the hands of the titular. The whole parish of Kirkconnel belongs in property to Sir William. Maxwell, who, besides being titular qua patron, has an heritable right to his teinds.
The Minister of the united parish having obtained an augmentation of his stipend, the Earl of Hopetoun gave in a scheme of locality, by which the augmented stipend was divided between the two parishes, in proportion to the old stipend paid by each.
Sir William Maxwell objected to the same, and
Pleaded: The union of the parishes must necessarily have the same effect as if the two had been originally one parish. Consequently, the whole free teinds in the united parish must be exhausted, before any part of the augmentation can be laid on teinds which have been heritably disponed. The parishes are united quoad omnia. If it had been meant that the civil rights of parties should not be affected, the union would have been quoad sacra only.
Answered: In so far as relates to the cure and the rights of the Minister, the parishes, in consequence of the union, are no doubt to be held as one. But all the beneficial purposes of uniting two parishes are obtained without depriving the respective titulars of their civil rights; accordingly, it has been found that they are not affected by the union; 13th July, 1774, Fotheringham against Bower, No. 27. p. 14815.
The Lord Ordinary “sustained the objection, and remitted to the clerk to rectify the locality accordingly.”
But on advising a reclaiming petition for the Earl of Hopetoun, with answers, the Lords considering the point to be settled by the case of Fotheringham, “altered the Lord Ordinary's interlocutor, and found that the parishes of Kirkpatrick-Fleming and Kirkconnel, being under different titularities, the modified stipend must be divided betwixt the two parishes proportionally, effeiring to their respective rentals, and that each titular has only right to allocate the proportion thereof within his own titularity.”
Lord Ordinary, Ankerville.For Sir William Maxwell, H. Erskine.Alt. D. Williamson.
Fac. Call. No. 95. p. 225.
