The Minister's right to a suitable stipend is paramount to all other claims upon the teinds of his parish.
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About the beginning of the seventeenth century, the parish of North Leith was disjoined by act of Parliament from the parish of Holyroodhouse, and a church was erected for the accommodation of the parishioners. The inhabitants of Newhaven finding this more convenient than their parish-church of St. Cuthbert's, were accustomed to resort to North Leith church; and, in the year 1630, the Commissioners of Teinds united and annexed the lands of Hillhousefield and Newhaven to the parish of North Leith; but the teinds of these lands which had been paid to the Ministers of St. Cuthbert's continued to be drawn by them and remained a part of their stipends
Matters continued in this situation until the year 1797, when Dr. David Johnston, Minister of North Leith, raised a process of augmentation. In this process he called the heritors of St. Cuthbert's, and contended, that as there were not sufficient teinds in his parish to provide a suitable stipend, independent of the teinds of Newhaven and Hillhousefield, he was entitled to a modification out of these teinds, though they were in use to be paid to the clergymen of the parish of St. Cuthbert's.
The heritors of St. Cuthbert's resisted this claim, and contended, that the annexation of the lands of Newhaven was only quoad sacra, the patrimonial rights of the two parishes remaining in their former situation.
But the Court found, that the lands were annexed quoad omnia, Upon this, the heritors of St. Cuthbert's
Pleaded: The continued use of payment to the Minister of their parish, proceeded upon regular decrees of Court, and is therefore a sufficient title to acquire by the positive prescription, and the Minister of North Leith has lost his right by the negative prescription; Minister of Kingsbarns against the Heritors, November 27, 1798, Appendix to glebe; Minister and Heritors of Eyemouth against the Officers of State, and Heritors of Swinton, February 4, 1756, voce Teinds. And farther, in point of fact, they pleaded, That there were teinds enough in the parish of North Leith to be allocated to the Minister's stipend, independent of the teinds in question. The Minister
Answered: Prescription does not apply to cases of this sort; for so long as a Minister has a competent stipend modified to him out of other teinds, he is non valens agere, and in this case he had neither title nor interest to oppose the payment to the Ministers of St. Cuthbert's. The plea of prescription cannot affect the claim of the Minister of a parish to a suitable stipend; for whoever may possess the teinds, must hold them under this inherent burden. It makes no difference whether they happen to be drawn by the Minister of another parish, or by a charitable institution since the right of the Minister is paramount to all other claims And, in point of fact, he contended, that,, exclusive of these, there was not a sufficiency of teind for a suitable stipend. The heritors
Replied: The Minister of North Leith: cannot be considered as non valens agere,. so as to prevent the operation of prescription; for every Minister of a parish has a constant interest to prevent the teinds from being diverted to other purposes, so as to keep the fund of augmentation as broad as possible.
This argument, the Minister contended, proceeded altogether upon a petitio principii, That his right to a suitable stipend was lost by the teinds being for a length of time in possession of others.
The Court, (27th May, 1801,) repelled the defences offered on the part of the heritors, and found, “That in allocating the pursuer's stipend as modified, after continuing the old stipend drawn by him, conform to use and wont, and after exhausting any other free teind in his parish, the pursuer is entitled to all, or as much of the victual presently paid out of the teinds of Newhaven to the Minister of St. Cuthbert's, as may be necessary for completing his said modified stipend.” And upon advising a reclaiming petition, with answers, they adhered to this interlocutor.
It is to be observed, that the Ministers of St. Cuthbert's were nowise concerned in the decision of this cause, as it was admitted on all hands, that there was abundance of teind unappropriated in their parish, independent of these lands of New-haven; and as it was of no sort of consequence to them from what teinds in their parish their stipend was paid, they made no compearance.
