Scottish Court of Session Decisions

The Rev. David Smith Peters, minister since 1877 of the New or Mid Parish, Greenock, raised an action againt the Provost, Magistrates, and Town Council of the burgh of Greenock to have it found and declared “that the pursuer, as the minister serving the cure of the New or Mid Parish Church and district thereof, within the burgh of Greenock, was and is entitled to be furnished and provided by the defenders, and that the defenders were and are bound to furnish and provide the pursuer, with a competent and legal stipend, to be paid out of the revenue of the burgh, or out of the other funds, property, and revenues-held and enjoyed by the said Magistrates and Town Council for the special use and behoof of the minister serving the cure of the said church and district, from the date of his ordination and induction to the said cure, and in all time coming, during his lifetime and serving said cure,” and he sought decree for payment of certain arrears upon the footing that from Whitsunday 1880 until Martinmas 1890 his stipend ought to have been £320 per annum, and from the latter date £400 per annum, or such other sum as should appear to the Court to be a competent and legal stipend, reserving his right and that of his successors in the cure to apply for an increase of stipend in the event of the sum presently decerned for ceasing to be a competent and legal stipend.

It appeared that prior to 1741 there had been only one parish and one church in the town of Greenock, and the population having so increased as to render a second church and minister desirable, Sir John Schaw, who was superior and principal heritor of the parish, and also patron of the parish church, took steps to have a second parish planted in the town. By charter, dated 30th January 1741, he empowered the feuars and sub-feuars of the burgh of barony of Greenock to meet yearly and choose managers of the public funds that had arisen or that might arise from assessment. At said date the existing funds, which were derived from a voluntary assessment upon malt, amounted to £1000, and upon 7th February 1741 Sir John Schaw granted to the managers a heritable bond for £1000, with interest from Candlemas of that year, the instrument of sasine upon which bond, dated 18th February 1841, bore that Sir John Schaw bound and obliged himself to repay the £1000 to these managers, and to the survivors or survivor, in trust “for themselves and the whole other feuars and householders of the said burgh of barony, and of the new parish of Greenock, when the same shall be erected, in order to be applied for the special effect and purpose of being part of the benefice of the said parish, when, or in case it shall be erected, and in trust, that such erection being once legally made, the foresaid persons, or survivor of them, shall denude themselves by assigning and disponing the said bond in security to and in favour of the minister who shall be first settled in the said new erected parish, and to his successors in office in all time coming during the not redemption or until payment, to the intent that such minister and his successors in office may receive the rents and profits thereof during their respective incumbencies, and that the said rents thereof in time of vacancy may be uplifted and applied as accords of the law, and that the minister for the time being shall not have power to uplift or receive the principal sum above written without the consent of the persons above named, or major part of them, or the survivors or survivor of them, or the major part of the said survivors, and failing of them all, without the consent of the Procurator for the Church for the time being, and failing of him, without the consent of the Lord President of Session, or the King's Advocate or Solicitor, or the Dean of the Faculty of Advocates for the time being, to the end that the said principal sum so uplifted and received may forthwith, or as soon as possible, be employed upon land or annual rent for the same uses,” and he bound himself to pay an annual rent of £50 for said sum, for which he conveyed certain lands in security to these managers, or the

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survivors or survivor of them, in trust “for themselves and whole other feuars and householders of the said burgh of barony, and of the new parish of Greenock when the same shall be erected, in order to be employed for the special effect and purpose of being part of the benefice of the said parish when or in case it shall be erected, and in trust that such erection being once legally made, the forenamed persons shall denude themselves by assigning and disponing this bond in security to and in favour of the minister.”

Upon 15th July 1741 the New or Mid Parish was erected by decree of disjunction and erection pronounced by the Court of Teinds, which proceeded upon the narrative—“And whereas by the great encrease of the town of Greenock of late years, in trade and people, and consequently of the paroch of Greenock, whereof the town is a part, the erection of the new kirk is become absolutely necessary for the greater success of the Gospell in that place, and is much desired by all the inhabitants thereof, who have provided a sufficient fund for building a new kirk and endowing a minister with a competent stipend, not less than nine hundred and fifty merks of stipend, and fifty merks for communion elements, towards which the pursuers have already laid out upon heritable security on the lands of Kirkmachaell the sum of one thousand pounds sterling, and have bound themselves by contract to pay a certain contribution yearly for fifteen years, which will be sufficient to compleat a fund for the stipend, and to defray the expense of building a church.” …

The decree found and declared—“That a new church be planted, builded, and erected, within the bounds @ described for the said new paroch, and that a minister be settled for serving the cure at the said church, and that the baillie of Greenock and managers of the fund for building and endowing the said church, and the feuars and elders of the said new erected paroch for the time being have, in all time coming, the sole and undoubted right of patronage of the said new church, and the right of presentation and calling a minister to serve the cure thereat how soon the said kirk shall be erected and accomodated for publick worship, and as oft in all time thereafter as any vaccancy shall happen; and of modelling and disposing the said church and haill seats thereof and bounds within the same, and of setting and uplifting rents for said seats, and of naming and appointing the beadles, bellman, or doorkeepers of the said new church, and of readers, precentors, and clerks for the said kirk and sessions thereof from time to time as they shall think fit; and of disposing, during any vacancy, of the fund which shall be provided by them for a stipend to their minister, or for communion elements, manse, or schoolhouse, with this provision and condition always that Sir John Schaw of Greenock, and the other heritors of the parish of Greenock, their heirs and successors, in their respective lands and heritages nor the teinds thereof, shall not be lyable in payment of any stipend to the minister of the new paroch, or for building, upholding, or repairing the kirk, manse, or school-house thereof, or any other parochial burdens whatever; but have declared, and hereby declare, them free thereof in time coming, as also have decerned and ordained, and hereby decern and ordain, that the baillie, feuars, and inhabitants of the said burgh be bound and obliged, not only to defray the expense of erecting, building, and repairing such kirk, manse, and school-house, and other parochiall burdens, but also to provide the minister of the new church so to be erected with a competent and legall stipend not under nine hundred and fifty merks, with fifty merks for the communion elements.”

From 1741 to 1751 the finances of the said New or Mid Parish Church were managed, and the revenues thereof were collected and disbursed by the managers, under said charter of 1741. In 1751 Sir John Schaw granted a new charter, authorising the feuars and sub-feuars of the town of Greenock to meet and choose, in place of the former managers, a body of two magistrates, a treasurer, and six councillors. This new body, upon its appointment, took charge of the financial affairs of the said church.

In the same year a local Act (24 Geo. II.) was obtained, which proceeded upon the narrative that “whereas the building of a new church, town-house, poor and school-houses, and also market-places for meal and flesh, and also of a publick clock, are extremely necessary, and much wanted within the said town, but the inhabitants thereof are not able to raise money to answer the expence thereof, nor to complete the said harbour, and to keep all the said works in repair, without the aid of Parliament,” and authorised an assessment upon malt for thirty-one years. The church was completed and began to be occupied in 1761, and thereupon the Magistrates and Council proceeded to let the church seats, and to uplift the seat-rents. In 1767 they uplifted the £1000 contained in Sir John Schaw's heritable bond already mentioned, and applied the same in payment of debts due by the town, granting to the minister of said parish an obligation to pay annually to him, and his successors in office, the legal interest of the £1000, in partial satisfaction of the modified stipends of the parish for the time being. The said Magistrates and Council collected all the revenues of the church, and disbursed the minister's stipend and the other charges of the church down to 1833, when their place was taken by the Magistrates and Council elected under the Municipal Reform Act of that year, 3 and 4 Will. IV. c. 77. The last-named body now represented by the defenders, have continued the management of the church's financial affairs down to the present time, uplifting the seat-rents and other revenues, and paying the minister's stipend and other charges. The minimum stipend of 950 merks with 50 merks for communion elements amounted to only £55, 11s. 1 1 3. sterling per annum. In 1742,

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£24, 8s. 10 2 3d d. was added to the then minister's stipend by the managers of the burgh as a gratuity, and another £20 also as a gratuity in 1766, making the stipend £100. This was augmented in 1796 to £125, and in 1800 to £180, in consideration of the then high price of every necessary of life, and the usefulness of the then minister, but under declaration that the town was only bound to provide “the original yearly stipend of £100.”

In 1803 the stipend was £220, in 1808 £270, in 1812 £295, in 1843 £220, under a declaration that “the legal stipend” was £120 (including £20 for communion elements), and in 1861 £320 under a similar declaration. Upon 2nd September 1873, on the occasion of a vacancy in the incumbency of said parish church, the Magistrates and Council adopted a resolution to the effect that the legal stipend should be £120 with the use of the manse, and that the incumbent should receive the balance of the seat-rents after providing for that stipend and for the cost of the maintenance of the church fabric and manse and for necessary repairs so far as such cost exceeded an average amount of £50 a year.

The pursuer, who was elected in 1877, received £385, £355, and £347, as stipend for the first three years of his incumbency respectively. In the year 1880, having scrutinised the terms of the receipts submitted to him, he found that these bore reference to the resolution of 2nd September 1873, and that the sums tendered to him consisted of (1) the so-called “legal stipend” of £120, and (2) the balance of seat-rents, after providing for that stipend and communion element money and for the cost specified in said resolution. Being of opinion that these sums did not satisfy the defenders' obligation to supply a competent and legal stipend, he, in the said year 1880, declined to sign acknowledgments for the sums paid to him, except under protest that his legal rights should not be prejudiced thereby. The defenders paid him, upon such qualified acknowledgments, the sums admitted by them to be due to him for the period down to Whitsunday 1884, but thereafter on 3rd June 1884 they adopted a resolution instructing their chamberlain not to take receipts for stipend from the pursuer when these bore that payment was accepted under protest. In consequence of said resolution, and the pursuer's declinature to grant unqualified receipts, the pursuer obtained no payment of stipend from the defenders after 19th May 1884.

The pursuer pleaded, inter alia—“(1) According to the terms and meaning of the decree of disjunction and erection of the New or Mid Parish Church of Greenock, and to the usage and prescriptive use and enjoyment following thereon, the defenders, as representing the community of the burgh of Greenock, are liable in payment of a competent and legal stipend to the pursuer as minister of the said church.”

The defenders pleaded, inter alia—“(1) The pursuer's statements are irrelevant and insufficient to support the conclusions of the action. (4) The sum which the defenders are legally bound to provide to the pursuer, as minister of the New or Mid Parish, in name of stipend and communion elements, not being in any view more than £120 per annum, and the stipend paid, so far as in excess thereof, having merely been voluntarily paid out of the common good, in the discretion of the Magistrates and Council for the time, the action cannot be maintained. (5) It is incompetent to augment the stipend of the pursuer out of the funds of the burgh. (6) Separatim—The Court of Session has no jurisdiction to augment the pursuer's stipend.”

Upon 23rd June 1891 the Lord Ordinary ( Kyllachy) pronounced the following interlocutor:—“Finds that the obligation libelled contained in the decree of disjunction and erection dated 15th July 1741, is binding on the defenders: Finds that upon a just construction of the said obligation the defenders are bound to provide the pursuer and his successors in the New or Mid Parish Church of Greenock with a legal and competent stipend suited to the circumstances of the time, and the position and duties of the benefice: Therefore finds, declares, and decerns in terms of the first declaratory conclusion of the summons: Quoad ultra appoints the cause to be enrolled that parties may be heard as to the petitory conclusion, and reserves all questions of expenses; grants leave to reclaim.”

“ Opinion.—This case of the Reverend David Peters against the Provost and Magistrates of Greenock was lately argued in the Procedure Roll, and I shall now endeavour to explain shortly the view which I take of the rights of parties.

The decree of disjunction and erection of 1741 must, I think, be read as expressing a judicial contract, to which the predecessors of the defenders were parties, and under which the church of the New or Mid Parish of Greenock was erected by the Court of Teinds. It is therefore a document which, at least upon the parties to it, was and is binding according to its terms, and which requires to be construed on the same principles as any other contract. Accordingly, the first question is, What is the true construction of the obligation contained in the deoree whereby the predecessors of the defenders became bound, inter alia, ‘to provide the minister of the new church so to be erected with a competent and legal stipend not under 950 merks, with fifty merks for communion elements, payable at two terms in the year, Whitsunday and Martinmas, by equal portions?’

Now, in considering that question, it becomes important to keep in view that the predecessors of the defenders who undertook the above obligation did so, not gratuitously, but for more or less onerous considerations—(1) They received a sum of £1000 sterling, provided by the principal heritor, or raised by voluntary contribution, and which sum, it is admitted, although originally lent out on bond, was subsequently mixed with the town's funds and applied to its general purposes; (2) they

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further obtained the patronage of the new church; and (3) they obtained the right to levy and appropriate the whole of the seatrents, or at least to appropriate so much of them as was not required for the repair and upkeep of the fabric. In return they became bound to provide the minister with ‘a legal and competent stipend,’ not under the sum mentioned, which, including communion elements, amounted when converted into sterling money to £55,11s. 1 1 2d.

In these circumstances find difficulty in adopting either of the constructions of the decree which were at the debate suggested by the defenders. I do not, for example, think it is possible to hold that the obligation undertaken with respect to the stipend was limited to the minimum of £55, 11s. 1 1 2 d., and that anything beyond that was to be in the discretion of the defender's predecessors. If that had been meant, it would, I think, have been expressed, and it is in my judgment scarcely conceivable that it should have been meant, seeing that the sum in question—£55, 11s. 1 1 2 d.—did little more than represent the income of the £1000 which, as I have said, the defenders' predecessors received and spent. Nor would it, I think, have been altogether consistent with the onerous character of the contract that the debtors in the obligation should have been made the judges of the amount which they should pay. It is, perhaps, a more feasible proposition that a legal and competent stipend was to be fixed once for all, and that the parties to the contract being satisfied with the stipend as originally fixed, there was no room for recurring augmentations. But if the stipend was to be fixed once for all, one would have rather expected that it would have been so fixed in the decree. And on the other hand it can, I think, scarcely be doubted that a stipend to be modified from time to time, according to circumstances, was not only more in accordance with the language used, but also much more in accordance with the nature of the transaction, and with the probable requirements of the Court of Teinds,—not to speak of the elastic character of the revenue to be drawn by the town from the seat-rents.

It is, moreover, I think, impossible in this connection to disregard the usage which has followed on this decree for upwards of a century. The stipend appears to have been fixed in 1742 at the sum of £80, being an advance of £24, 8s. 10 1 2d. on the minimum. It was raised to £100 in 1766, to £125 in 1796, to £180 in 1800, to £220 in 1803, to £270 in 1808, and to £295 in 1812. It was reduced in 1843 to £220, but again raised to £320 in 1861, and it appears to have stood at this last sum until 1873, when the new arrangement now complained of was sought to be made, and the present dispute may be said to have arisen. No doubt—as set forth in the defenders' statement—these successive augmentations were always qualified by a declaration that they should be personal to the successive incumbents, and should not import an obligation to continue the same to their successors. But no augmentation once granted was ever in fact withdrawn, except in 1843, and then only to the extent which I have mentioned, and the later minutes from 1843 onwards contain regularly an acknowledgment that to the extent at least of £120 the stipend was a legal stipend for which the town was bound. How this last sum was reached does not appear, but it will be observed that it at least exceeds considerably the original stipend, and is not therefore consistent with the contention that the original stipend satisfied the town's obligation under the decree.

I appreciate the argument that this is a case of contract, and not of trust, and that there is always a certain presumption against an obligation which is indefinite, and involves a reference to the Court from time to time. I observe also, on referring to the decree itself, that it appears to have been at least anticipated that a sum should be raised by a voluntary tax continuing for fifteen years, sufficient (with the £1000 already raised) to build the church and provide completely for the stipend. But it does not appear how far this tax was levied, or what it produced; nor has it been suggested that by reference to this tax the means exist for now defining the stipend. In truth, the uncertainty of this source of income was, I think, not improbably the reason why the parties to the disjunction and erection, including the Court of Teinds, thought it necessary instead of resting satisfied with a prospective endowment, to impose on the town in general terms the obligation to provide a legal and competent stipend.

I am, on the whole, therefore, of opinion that the defenders' predecessors came under an enforceable obligation to provide such a stipend to the minister as should be legal and competent according to the circumstances of the time—the amount, in case of dispute, being from time to time fixed by the Court, and I am greatly fortified in this opinion by being able to appeal to so excellent an authority as a judgment of the late Lord Wood. I refer to his Lordship's judgment (practically acquiesced in) in the case of Cœsar v. The Magistrates of Dundee, June 9, 1848, and reported in 20 D. 859. The obligation in that case was in terms identical with the present, and was contained in a similar decree of disjunction and erection. It was granted by the magistrates of the burgh of Dundee, and its construction having come into question under circumstances very similar to the present, Lord Wood pronounced the following interlocutor—‘Finds that the sum of £105 which was originally fixed as the amount of stipend to be paid to the minister of the Cross Church of Dundee, of which the pursuer is now the incumbent, was not thereby made the permanent amount of the stipend for that charge in all time thereafter, so that the obligation imposed on the burgh by the decree 1788 was exhausted as regarded the amount of the stipend which could be claimed from the burgh, and all demand for any increase absolutely excluded, however inadequate the sum might subsequently, under existing

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circumstances, come to be for the support of the clergyman for the proper discharge of his duties, and for the maintenance of his position in society, and therefore to that extent repels the defences and decerns, and before further answer appoints the cause to be enrolled.’ A similar judgment was pronounced in the action which shortly followed at the instance of the other ministers of Dundee against the magistrates, reported in the same volume of Dunlop; but the question there was as to the administration of a trust, not as to the enforcement of a contract, and accordingly it is not of course a precedent of equal authority.

It remains only to consider whether the obligation undertaken in 1741 by the baron bailie and feuars of Greenock has now transmitted to the defenders. I confess I do not think that this can well be doubted. Greenock was up till 1832 only a burgh of barony, but between 1742 and that date it had gradually acquired a municipal constitution, and there can, I think, be no doubt that the managers of the burgh previous to 1832, and the Magistrates and Town Council since that date, have accepted the position of representing their predecessors and adopting their obligations. They have all along paid the stipend in question, and performed the other obligations imposed by the decree of disjunction and erection; and they have on the other hand drawn the seat-rents, and taken the benefit of their predecessors' funds, including the £1000 in Sir John Schaw's bond. They seem also to have exercised up to 1874 the patronage which was by the decree granted to their predecessors; and altogether I do not think that the case can be taken otherwise than if the present Magistrates and Town Council had been the municipal authority in 1741, and indeed, I do not gather that this was seriously disputed at the debate.

“I propose therefore to pronounce the following interlocutor [as given supra].

If the parties cannot agree, it will be for after consideration how and on what principles the amount of stipend shall be fixed. It may be that the stipend fixed in 1861 may form a standard, or it may be (though I should deprecate such a result) that some inquiry may be necessary. As at present advised, however, I do not see that any inquiry is necessary as to the funds of the burgh. In the view I have expressed, this is not an action for administering a trust, but for constituting a debt; and decree must therefore go out as for any other debt, without reference in the meantime to the circumstances of the debtor.”

The defenders reclaimed, and argued—(1) The £1000 which along with certain subscriptions were put into the hands of the original managers constituted a trust fund for the good of the benefice to be administered by these managers as trustees. It was not, as the Lord Ordinary seemed to have thought, for the benefit of the burgh. It could not be increased for the benefit of the benefice out of the burgh's funds. (2) If there was a contract here, it was merely to provide a stipend of 950 merks. By long usage £120 had come to be regarded as the “legal stipend,” and the Magistrates were willing to recognise that as the measure of their obligation. Every increase above that sum had been given as a gratuity, and had been declared to be so at the time of granting— Magistrates of Dundee v. Nicol, November 18, 1829, 8 Sh. 66. (3) If the contract was for a stipend to vary according to circumstances, that was a contract ultra vires of the managers of the burgh, and not binding upon their successors. (4) The “common good” of the burgh could not be made available for this stipend— Magistrates of Dundee v. Taylor & Grant, March 20, 1863, 1 Macph. 701; Wishart v. Magistrates of Edinburgh, 2 Pat. App. 118. If it could, but if the funds were insufficient, was an additional assessment to be laid on for that object? (5) This was an attempt to obtain an augmentation of stipend from the Court of Session, which was incompetent. Besides, there was nothing of the nature of teinds here. The rights of the old parish had been in no way affected by the decree of disjunction.

Argued for the respondent—(1) This action was in no sense an augmentation. It was brought for the enforcement of a contract ad factum præstandum—a contract under which the Town Council of Greenock in return for certain money—which they had spent to pay the burgh's debts—and for other rights, were bound to provide this parish with a “legal and competent stipend” out of the common good of the burgh, respect being had from time to time to changes in the conditions of living. That this was the real meaning of the contract was shown by the way in which the managers of the burgh had acted throughout. (2) This was a competent transaction, and was by no means the first of the kind—Ersk. i. 5, 23; Connell on Parishes, 65, 86, &c.; Moffat v. Magistrates of Port-Glasgow, decided by Lord Robertson, 1846 (unreported); Cœsar v. Magistrates of Dundee, June 9, 1848, reported 20 D. 859; Magistrates of Kilmarnock v. Aitken, May 31, 1849, 11 D. 1089; Presbytery of Dundee v. Magistrates of Dundee, March 19, 1858, 20 D. 849— aff, 4 Macq. 228. (3) If the burgh had spent its funds, as it seemed, upon municipal buildings, the Council must assess for these buildings; this benefice was not to suffer because the funds for its benefit had been otherwise spent.

At advising—