Scottish Court of Session Decisions

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Cite as: [1910] ScotLR 777, [1910] SLR 777

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SCOTTISH_SLR_Court_of_Session

Page: 777↓

Court of Teinds.

Friday, July 15. 1910.

(Before the Lord President, Lord Kinnear, Lord Johnston, Lord Salvesen, and Lord Cullen.)

47 SLR 777

Dundas (Minister of Carriden)

v.

Carriden Heritors.

Subject_1Church
Subject_2Glebe
Subject_3Authority to Feu
Subject_4Restriction in Feu-Charter — Glebe Lands (Scotland) Act 1866 (29 and 30 Vict. cap. 71), secs. 5 and 8.
Facts:

On a motion to approve of a form of feu—charter, in an application by a minister for authority to feu his glebe, one of the heritors appeared and moved the Court to insert in the feu-charter a restriction against the sale of exciseable liquors or ice cream on the portion of the glebe proposed to be feued. The minister did not object to the proposed insertion.

The Court, while expressing the opinion that it was competent for them to insert restrictive conditions in a feu-charter, declined to insert the proposed restriction ex proprio motu, or on the motion of one heritor, and continued the application in order to give the presbytery and the heritors of the parish an opportunity of concurring in the motion to insert the restriction, if they so desired.

Boyd, July 17, 1882, 19 S.L.R. 828, approved.

Headnote:

The Glebe Lands (Scotland) Act 1866 (29 and 30 Vict. cap. 71), enacts—section 5—“Subject to the provisions of this Act, the
Page: 778↓
inister may from time to time, with the consent of the presbytery and of the heritors as hereinafter provided, make application to the Court by summary petition for authority to feu his glebe, or any part thereof … Section 6—“Previous to making any such application the minister shall intimate his intention so to do to the presbytery …. and if the presbytery are of opinion that it would be for the interests of the benefice that the glebe should be feued …. they shall signify their consent to such application, subject to such conditions, if any, as they think necessary or advisable, by a certificate to that effect … Section 7—“Upon such certificate being granted the minister shall call a meeting of heritors .…” Section 8—“At that meeting a copy of the proposed application to the Court shall be submitted to such meeting; and if approved of by two-thirds in value of the heritors of such parish, the clerk to the heritors shall grant a certificate to that effect under his hand to the minister.”

The Rev. William Dundas, B.D., minister of the parish of Carriden, presented a petition in which he craved authority to feu his glebe. The application was subsequently restricted to a certain part of the glebe lands, and a remit was made by the Court to the Clerk of Teinds. The Clerk having reported that he had revised and adjusted the form of feu-charter, so far as applicable to the portion of the glebe to which the petition was now restricted, and that neither the presbytery nor the heritors imposed any conditions in their consents to the application, the petitioner applied to the Court to grant the authority craved, and to approve of the draft feu-charter as revised and adjusted.

Appearance was made for James Hope Lloyd Verney of Carriden, one of the heritors of the parish, whose mansion-house adjoined the glebe, who moved the Court to insert in the feu-charter a prohibition against the sale of exciseable liquors and ice-cream on the portion of the glebe proposed to be feued, and cited Boyd July 17, 1882, 19 S.L.R. 828. It was stated for the minister that he had no objection to the insertion of the suggested prohibition in the feu-charter.

The opinion of the Court was delivered by

Judgment:

Lord President—We consider that the case quoted — Boyd, 19 S.L.R. 828— shows that it is within the power of the Court to allow restrictive conditions to be inserted in a feu-charter, and we need not distinguish between restrictive conditions of one kind or another. Such conditions would not be inserted ex proprio motu of the Court, nor on the suggestion of a single heritor, but if they are suggested by the heritors as a whole the Court would not refuse. Mr Chree has quite frankly admitted that his client's suggestion has not at present the support of two-thirds of the heritors. It would be going beyond what we ought to do to insert de piano at his suggestion a restrictive condition. So we shall continue the case to give the other heritors and also the presbytery an opportunity of lodging minutes of non renitentia.

The Court continued the application.

Counsel:

Counsel for the Petitioner— J. B. Young. Agents— Purves & Simpson, S.S.C.

Counsel for the Respondent — Chree. Agents — J. C. Brodie & Sons, W.S.
1910