Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Shiells v The Heritors of Channelkirk [1818] CA 13_1018 (18 June 1818)
URL: http://www.bailii.org/scot/cases/ScotCS/1818/013SS1018.html
Cite as: [1818] CA 13_1018

[New search] [Help]

SCOTTISH_Shaw_Court_of_Session

Page: 1018↓

Shiells

v.

The Heritors of Channelkirk

Court of Session

June 18 1818

Lord Justice-Clerk, Lord Robertson, Lord Bannatyne, Lord Craigie, Lord Glenlee.

Shiells The Heritors of Channelkirk.

Subject_Manse.—

Power of Presbytery to order additions.

Mr Brown having been inducted minister of Channelkirk in 1809, and being dissatisfied with the condition of his manse, as too small and incommodious, as well as standing much in need of repairs, and being subject to dampness, at first made representations to heritors, and, in 1814, applied to Presbytery, who found manse too small for accommodation of minister's family, and in bad state of repair, and particularly from damp and smoke almost uninhabitable; and minister having stated that he bad complained to the heritors without effect, they having only offered, on the 4th November, 1814, a few inconsiderable repairs. A meeting of presbytery, as well as of heritors, took place on 5th May, 1815, when the presbytery, finding that the heritors were not disposed to grant the necessary repairs and additions, they authorized two architects or builders from Edinburgh, who had been solicited at their desire by the minister, to inspect and report. A long report was given in, stating the defects of the manse, and that they considered an addition of a parlour and two bed-rooms above to be necessary for the minister's accommodation, the house consisting of only one parlour and kitchen below, and four small bed-rooms above, with offices in an insufficient state.

The heritors being allowed to see this report, gave in a copy of their minutes, of 5th May, containing an offer of a variety of repairs, and an addition of one room of the full breadth and of half of the length of the present manse, at the east end thereof, which would then have two public rooms on the ground floor, besides closets, a kitchen, and milk-house, and four bed-rooms on the second floor, with well-finished garrets above, and also various repairs and additions to the office-houses.

The presbytery adhering to their view, under certain limitations, ordained the minister to obtain plans, specifications, and estimates, for carrying on the repairs and additions, and ultimately fixed on a plan at the expense of £730, which was ordered to be executed.

A suspension was brought, and the Lord Ordinary pronounced this interlocutor:—“Finds, That the presbytery of Lauder have exceeded their powers, in deciding against the heritors of the parish of Channelkirk for the large sum of money mentioned in decree of presbytery, for making not only repairs on, but a considerable addition to the manse of Channelkirk, which is said to have been built about thirty years ago, and to be a substantial building, though in need of some repairs: Finds, That offers made by heritors at meeting of 5th May, 1815, were reasonable offers.”

Against which the collector of the assessment of the presbytery has reclaimed, maintaining that the presbytery was legally entitled to take the steps they have done to secure the minister in a commodious and suitable manse, according to law.

The respondents appeal to the fact, that this manse had been built within thirty years, and the reasonableness of their offers; contend that the presbytery had no right to order additions to be made; and reference is made to the decision in Dalmeny, where the Court suspended a charge for completing additions to the manse, and also to the case of Stewartoun, in which the Court refused to authorize a new church to be built, on account of an increase of the population of the parish.

Lord Justice-Clerk.—This is an important case in point of precedent, but am disposed to concur in the interlocutor, and chiefly on the authority of the case of Dalmeny.

In that case it seems clearly established by the report, that, though the manse had been built during the incumbency of the minister, it had never been formally accepted by the presbytery, and delivered over as a free manse. The case is therefore precisely what occurred here, as to the manse not having been accepted by the presbytery, though it was built during a former incumbency, but at the distance of only thirty years.

Now, looking to the decision in the case of Dalmeny, it seems evidently to have proceeded on the abstract ground that the presbytery were not untitled to order an addition, however inconsiderable, on the ground of want of accommodation for the minister's family. It is quite clear, that, when an old manse is condemned, and a new one to be built, the presbytery may require it to be built according to what is considered proper accommodation; but it would greatly aggravate the burden of heritors to authorize changes and additions, according to the wishes either of minister or presbytery.

Cannot hold the acquiescence in the Lord Ordinary's interlocutor, in case of Cathcart, as impairing the weight of decision in case of Dalmeny; and cannot find that the case of Anworth is reported, or that the case of Dalmeny was then brought under notice.

But consider offers of the heritors as very reasonable; though if one were to sanction any further proceeding, it would perhaps be necessary to appoint another architect, notwithstanding the respectability of Messrs Laing and Gillespie, selected by the heritors.

Lord Robertson.—Went on ground that manse was not meant nor declared a free manse. Lord Ordinary goes on excess of power, and we are called on to decide the general point, whether in such circumstances, heritors can be called on to make suitable additions. Every minister is entitled to competent manse, but bound to look at that at time. In case of Creech, in 1778, in which I was counsel, Court refused to raise walls, and would not allow manse to be slated which was thatched. So, in case of Dalmeny, where manse built under authority of presbytery, and declared free. Case is quite different, where whole has proceeded on arrangement between minister and heritors, which law looks on with jealousy. In 1802, in case of Muckhart, which depended before Lord Bannatyne, minister got manse, in 1806, but without authority of presbytery; on its being declared free, and a year after, £100 expended by heritors. Minister again applied for additions; was allowed it, and a petition refused without answers. Cannot go, therefore, on excess of powers.

Lord Bannatyne.—On general ground cannot go on presbytery having exceeded powers. Case of Dalmeny was special, in manse having been built in incumbent's lifetime. As to offers made, and accommodations proposed, could have wished authority of presbytery had been obtained in first instance.

Lord Craigie.—I certainly think case of Dalmeny was decided on general point, or I should not have reported it, and think it was a sound decision. If collusion between minister and heritors, would listen to it. But if manse taken and possessed for thirty years, would presume things done properly and rightly; and cannot here lay any stress on allegations made; and hold the law clear.

Lord Glenlee.—After so long period as thirty years, and acquiescence in, as a manse, its not appearing in record does not alter case. Presbytery held it as a manse by their own proceedings. Think their notions were erroneous, post tantum temporis; but confess I paid less attention,as I was satisfied,by Laing's report, that accommodations were suitable.

Lord Robertson.—Hesitate in going into a decision which will overturn the whole law as to powers of presbytery. If manse declared free, incumbent bound to keep it up. Has been declared that when manse built by heritors, presbytery cannot refuse to inspect and declare it free. Here minister and heritors have neglected both proceedings. As to case of Dalmeny, I think it is shaken as an authority, because manse built during incumbency of Mr Robertson. Had applied to presbytery, but did not follow their plan; and, therefore, it cannot be viewed as a decision on general point.

Solicitors: Adhere—three to two—but find no expenses.

SS 13 SS 1018 1818