Scottish Court of Session Decisions

The facts of the case sufficiently appear from the following Note, which the Lord Ordinary ( Mackenzie) appended to his interlocutor assoilzing the defender:—

“Note.—The present action has been raised by the heritors of the parish of Aberdour, and by the Earl of Morton, the Earl of Moray, and Mr Wother—spoon of Hillside, three of the heritors, against the Reverend George Roddick, the minister of that parish, to have it found and declared that the defender ‘has no right to let or hire out the manse of the said parish of Aberdour, or any part thereof, to tenants, strangers, sea-bathers, or others, or to occupy, or to allow or permit the same to be occupied by such tenants, strangers, sea-bathers, or others, not being his own family, servants, or other members of his household,’ and to obtain interdict against the defender prohibiting him from so letting or hiring out the manse. The pursuers aver that the defender has for some years been in the practice of letting his manse during the months of August and September, and, in particular, that he did so in 1868 to Mr Drybrough, brewer, Edinburgh, at £25, and in 1870 and 1871 to Mr James Shand, a fire-engine manufacturer in London, at £30, for each of these two months. The defender admits these statements of the pursuers, and he explains that he so let his manse while absent, with the knowledge of the presbytery, from his parish for the benefit of his health, and that, besides visiting his parishioners, he has, during these two months, discharged his Sunday duties personally for at least half the time, and that during the remainder of the time his duty is performed either by other clergymen with whom he exchanges pulpits, or by means of a paid assistant, for whom he takes lodgings in the village of Aberdour.

It is not easy accurately to define the nature of a minister's right to his manse. Lord Stair, in treating of infeftments of property, states that ‘the gleibs of ministers seem to come nearest to allodials, having no infeftment, holding, rent, or acknowledgement, though they be more properly mortified fees, whereof the lifrent escheat befals to the King only’ (2, 3, 4). In the same book, after defining infeftments of mortified lands, he says (2, 3, 40), ‘of all these mortifications there remains nothing now except the manses and gleibs of ministers, which manses and gleibs are rather allodial than feudal, having no express holding, reddendo, or renovation, yet are esteemed as holding of the king in mortification, and therefore the liferent of the incumbent, by being year and day at the horn, falls to the King.’ In the Heritors of Cargill v. Tasker, February 29, 1816, F.C., where the question was, Whether a minister is liable to be assessed for poor-rates? the Court, in deciding that he was not, observed, as the report bears, that ‘he is qua minister, neither an heritor, a tenant, nor a possessor.’ But this was explained by Lord Fullerton in the case of Forbes v. Gibson, December 18, 1850, 13 D. 341, ‘as importing that, though de facto possessing, still the possession of ministers was, from their peculiar character, not such as to bring them within the assessing clauses’ of the Poor Law Acts. The question in that case was, Whether a parish minister was, by reason of the provisions of the Poor Law Amendment Act, liable to assessment for support of the poor in respect of his manse and glebe? In the same case, in the House of Lords, the Lord Chancellor (Lord St Leonards) stated that ‘ministers are in a sense owners.’

The right of a parish minister to his manse is statutory. By the Act 1563, c. 72, it is provided that the ‘minister have the principal manse of the parson or vicar, or sa-meikle thereof as shall be fundin sufficient for staiking of them, to the effect that they may the better await upon the charge appointed and to be appointed unto them, quhidder the saidis glebis be set in few or tack of before or not: Or that ane reasonable and sufficient house be bigged to them beside the kirk be the parson or vicar, or others, havand the said manses in few or long tackes.’ By the Act 1572, c. 48, it is declared that the manses outher perteining to the parson or vicar maist ewest to the kirk, and maist commodious for dwelling, perteins and sall perteine to the minister or reader serving at the samiukirk: Together with four acres of land of the glebe at least lyand contigue, or maist ewest to the said manse, gif there be sa-meikle,’ and these are appointed to be designed ‘to the use of the minister or reader that sall serve and minister at the said kirk in time cumming.’ And by the Act 1663, c. 21, the heritors of the parish are ordained, where competent manses are not already built, to ‘build competent manses to their ministers,’ and, where competent manses are already built, to repair them, the ministers being bound to uphold them during their possession after being repaired and declared free. According to these statutes, manses pertain to ministers during their incumbency, and they are designed for their use, ‘to the effect that they may the better await upon the charge appointed.’

Such being the statutory right of ministers, the Lord Ordinary has been unable to see any sufficient grounds on which the pursuers, as heritors of the parish of Aberdour, can, in the circumstances, and on the grounds averred by them, obtain the decree of declarator and interdict for which they conclude in their summans. It is not said that the defender, by letting the manse for two

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months annually at a high rent to a family of respectability, has dilapidated the manse, or that he is applying it otherwise than for the purposes of a dwelling-house. The pursuers aver that the manse has not been declared free, but the defender states in the record that it has been virtually so ever since his entry; that he has improved the premises by means of the rent which he has received; and that he will put no difficulty in the way of the heritors having it declared free. The Lord Ordinary does not feel called on to give any opinion whether the heritors would be entitled to prevent the defender from completely inverting the possession of the manse, and from using it in a way which would be injurious. All that he has decided is, that, on the facts averred by them, the heritors are not entitled to the decree concluded for. He considers that the letting of the manse complained of is not beyond the powers of the defender as minister of the parish, and that the heritors are not entitled to prevent him from doing so. The Acts above referred to, under which the minister has right to his manse, are not adverse to such letting. The Act 1563, c. 72, only ordains ‘that na parson, vicar, nor uther ecclesiastical person, set in few or lang taekes, onie of their manses or gleibes perteining to the saidis kirkes, without special license and consent of the Queen's Grace in writ.’ The Act 1572, c. 48, also provides—‘Quilkes manses and acres of land, sa marked and designed as said is, it sall not be leasum to the ministers or readers, present or to cum, to sell, annalie set in few or tackes, or to put ony in possession of the samin in prejudice of their successors; bot the samin to remain alwayes free to the use and easement of sik as sall be admitted to serve and minister at the said kirk.’

“There are some averments in the record which seem to imply that the defender does not duly discharge the duties of his parish during the two months that he lets his manse, and that the pursuers seek to remedy this by preventing him from letting the manse during these months. The Lord Ordinary considers that such averments are not relevant in the present case, and that he can take no cognisance of them. If the heritors conceive that the defender neglects the duties of his cure, the church courts, which can alone take cognsisauc of that matter, are open to them.”

The pursuer reclaimed.

The Solicitor-General (Clark), Fraser, and Scott, for them.

Watson and Asher for respondent.

At advising—