An assistant and successor to a minister cannot pursue an augmentation.
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The Reverend James Hay, minister of the parish of Roberton, having, from bad health, become unfit to discharge his clerical duties, Mr. William Berry Shaw was presented by the Crown, the patron, to be his assistant and successor. He accordingly entered into this office, and was regularly ordained (25th December 1801) by the presbytery. Mr. Hay resigned to him the manse, glebe, garden and offices, and contributed £20 per annum for a stipend; the heritors agreed to pay £15 in addition to the above annually.
Mr. Shaw raised a process of augmentation against the heritors; to which it was objected, that, not being the minister of the parish, he had no title to pursue such an action.
The Court dismissed the process.
Against this Mr. Shaw reclaimed, and
Pleaded: It is a matter of great importance that the person who performs the clerical duties of the parish, whatever his ecclesiastical character may be, should be placed in such a situation, as that his ministry may be respectable and useful. An assistant, named by the incumbent himself, and, consequently, removeable at his pleasure, may have no title to pursue an augmentation. He is paid by the minister himself, and has no connection with the teinds. But the pursuer is a regularly ordained clergyman; he has a presentation from the patron; he has been inducted into his office by the proper church judicatory; and he performs all the clerical duty of the parish. He does not insist that two stipends should be paid, but that such a stipend should be modified as is adequate to the circumstances of the parish; or, in other words, such a stipend as the minister himself would have obtained, had he continued doing the duties of the parish. The heritors, because they have two clergymen, ought not to be relieved from paying the same sum which they would have been found liable to pay, if there had been but one.
It does not appear that the right of prosecuting an action of modification was intended to be limited to any particular party; hence such a process has been sustained at the instance of the patron; Queensberry, No. 66. p. 15662; as well as of an assistant and successor, who appeared in the process, when the augmentation had been refused to the minister, who had retired from his charge; case of Melrose, 1797, (not reported,) and of Garvock, 24th November 1804, (not reported.)
Answered: The statutes authorising stipends to be modified, uniformly direct, that this shall be to the minister of the parish; and he, of course, is alone entitled to insist in such a process. The pursuer is not the minister of the parish. He has no stipend to augment. He has a salary paid jointly by the minister and the heritors, according to an agreement, by which he undertook for that remuneration to perform a certain duty; and he cannot oblige the other contracting party to give more, by a process of augmentation of a stipend which does not belong to him when the minister does not insist. A second minister, who is establisbed by private agreement, cannot insist for an augmentation; Marshall against Town of Kirkaldy, 7th July 1738, No. 18, p. 14795. nor an assistant, Macruer against Macnicol, 18th May 1803, No. 95. P. 15711.
The Court adhered.
Act. Campbell,Agent, James Robertson, W. S.Alt. Gordon.Agent, A. Storie, W. S.
Fac. Coll. No. 234. p. 529.
