Scottish Court of Session Decisions

Subject_1Church,
Subject_2Repair of Manse
Subject_3“Free” Manse
Subject_4Ecclesiastical Buildings Act (31 and 32 Vict. cap. 96), sec. 3 — Competency — Removing Petition dealing with Repairs on a Manse from Presbytery to Sheriff Court — Appeal from Sheriff Court.
Facts:

The manse of Pitsligo was in 1874 declared free by interlocutor of the Court of Session, but the minister refused to inhabit it, on the ground that it was unhealthy and generally out of repair. The heritors of the parish thereupon presented a petition to the presbytery praying them to order the minister to inhabit the manse, or alternatively for the appointment of some one to take care of it at his expense. The minister lodged answers to this petition, in which he alleged that the manse was in a very bad condition, and that he and his family could not inhabit it without suffering in health. Subsequently he put in a minute offering to occupy it so soon as it was put in a fit state, and craving the presbytery to take the necessary steps for ascertaining its actual condition and for providing a suitable residence for him and his successors. The presbytery remitted to an architect to report. Proceeding on his report the presbytery found that the manse needed repairs, and that notwithstanding the interlocutor pronouncing it “free” an obligation rested on the heritors to remedy the defects. They therefore dismissed that portion of the petition praying for an order on the minister to inhabit, and ordered the heritors to take the necessary steps to make the manse habitable, and further found the expenses in the proceedings a burden upon them. The heritors then removed the proceedings to the Sheriff Court by petition under the provisions of the Ecclesiastical Buildings Act (31 and 32 vict. cap 96), sect. 3. The petition prayed the Sheriff to stay the proceedings before the presbytery and to dispose of it himself. This was conjoined with a previous petition presented by the heritors to the Sheriff, and in the conjoined actions an interlocutor was issued in which the first petition of the heritors complaining of the minister's desertion was dismissed; and in the second petition the order of the presbytery for repairs was found to be incompetent and all further proceedings thereon were stayed. The respondent, the minister of the parish,

Page: 628↓

appealed. The Court held that though the proceedings before the presbytery had not been instituted under the 3d section of the Ecclesiastical Buildings Act, their deliverance fell within its action as being “a proceeding before a presbytery relating to repairs of a manse,” and was properly transferred under the statute from the presbytery to the Sheriff Court, and therefore that the Court could not take the interlocutor of the Sheriff under review, as the Lord Ordinary on Teinds was the proper person to whom to appeal from the Sheriff Court.