Scottish Court of Session Decisions

Lord Curriehill—The question in this case relates to the mode of allocating the augmentation of stipend awarded to the minister of Montrose. It appears from the last locality, which is printed, and which we have had before us, that the teinds of this parish are in this situation. There are enumerated 64 parcels of land, comprehended within the parish, and of these, the teinds of eight parcels are described as having been surrendered and exhausted. Other ten parcels are described as held on heritable rights by heritors. Four are described as belonging to St Mary's College of St Andrews, and all the rest are described as being held without heritable rights. The question is, how is this augmentation to be allocated on these different parcels.

It appears that, according to the mode of allocation adopted not only in the immediately preceding augmentation, but in all the localities for the century from 1759 down to the present time, the allocations have been made on the footing of laying on the numerous parcels of lands in the hands of heritors not having heritable rights the burden of the whole augmentation. The teinds of the ten parcels of land held by heritors having heritable rights were not burdened with any stipend. How long matters were conducted on that footing we do not know, but it was for a century at least. The allocation was not made in absence of the Crown, because we have evidence that the Crown was called as a party to all these processes, and appeared in some of them. But though this practice has proceeded for a long time, the Crown has now appeared and insists that that order of allocation shall be reversed, and that the augmentation shall be imposed upon the teinds of those heritors who have heritable rights, and the teinds of the Crown shall be entirely exempted unless the others be insufficient to afford the amount of stipend. This is opposed by the class of heritors who have heritable rights, and the question is, which contention is right?

The ground upon which the Crown proceeds is, that the teinds of those parcels of land belonged to a mensal church of the Bishop of Brechin, and that no part of the stipend could be allocated on the Bishop under the submissions and Acts of Parliament; and that the Crown, having succeeded to the right of the Bishops, has the same privileges that the Bishops themselves had. This raises a very important question; but the difficulty is not in point of law, but as to matter of fact. We thought it very desirable that some of the facts should be cleared up by evidence, but we must now deal with the case as a concluded case. The parties have brought a considerable amount of evidence; they have no more to offer us; and we must therefore deal with the case on the evidence before us. I may say, at the outset, that it is impossible to doubt that the greater part of the teinds of this parish belonged at one time to the Bishop. But it does not appear that the whole teinds had at any time belonged to him, but some always to others. The evidence does not go farther back than 1661, but from that time we have a good deal of evidence; and it appears that, from the earliest times, portions of the teinds of this parish had belonged to certain friars, and other portions to canons. Others had belonged to the College of St Mary's, and that is the case still. Now, these exceptions are not very easy to reconcile with the doctrine of the Crown that this was a mensal parish. Considerable obscurity is attached to that doctrine by the fact that the whole teinds did not at any time belong to it. But there is a more serious difficulty than that—namely, that ten portions of land in the parish are held by heritors with heritable rights. The very existence of these heritable rights creates a difficulty. How is this to be reconciled with the claim of the Crown to have it assumed that this was a mensal parish, and that the whole teinds belonged to the Bishops? It was distinctly admitted that there was no evidence to show how these teinds were acquired. But it is a still more serious difficulty that, so far back as we can trace the matter, the owners of these heritable rights have exercised them by getting the immunity that belongs to owners having heritable rights, and getting that in preference to the Crown. The Bishops, so long as prelacy existed, and the Crown afterwards, as in their right, having immunity so long as there were

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