Scottish Court of Session Decisions

The Rev. William Rattray, minister of the Tron Church, Glasgow, the Rev. David Fraser Liddle, minister of Blackfriars Church, Glasgow, the Rev. Gordon Quig, minister of St Paul's Church, Glasgow, the Rev. Duncan Alexander Cameron Reid, D.D., minister of St George's Church, Glasgow, the Rev. Archibald Maclaren, minister of St Enoch's Church, Glasgow, the Rev. Andrew James Campbell, minister of St John's Church, Glasgow, and the Rev. John D. Glass, minister of St James' Parish Church, Glasgow, pursuers, each brought a separate action against the Corporation of the City of Glasgow, defenders, in which the conclusions were as follows—“Therefore it ought and should be found and declared by decree of the Lords of our Council and Session that under. and by virtue of ( a certain specified decree of erection)—[the words in italics were absent from the conclusions of the actions at the instance of the Rev. William Rattray, the Rev. David Fraser Liddle, and the Rev. Gordon Quig]—the pursuer as minister serving the cure of [the church in question] was and is entitled to be furnished and provided by the defenders, and the defenders were and are bound to furnish and provide the pursuer, with a competent and legal stipend suited to the circumstances of the time and the position and duties of the benefice in all time coming during his lifetime and serving the said cure: And the defenders ought and should be decerned and ordained by decree foresaid to make payment to the pursuer as minister serving the cure of the said church and district thereof of the sum of £900 sterling per annum as a competent and legal stipend, or such other sum as in the circumstances shall appear to our said Lords to be a competent and legal stipend, and that at two terms in the year, Whitsunday and Martinmas in equal portions, beginning the first half-yearly payment thereof as at the term of Whitsunday 1920 and the next half-yearly payment at the term of Martinmas following, and so forth half—yearly and termly during the lifetime of the pursuer and while he serves said cure, with the interest of each term's payment at the rate of 5 per cent, per annum from the term at which the same falls due until paid, but reserving the right of the pursuer and his successors in the said cure to apply for an increase of the said stipend in the event of the stipend to be decerned for in the process to follow hereon at any time ceasing to be a competent and legal stipend.”

The terms of the deeds founded on and the averments of the parties sufficiently appear from the opinion of the Lord Justice-Clerk, infra.

The pursuers the ministers of the Tron Church, Blackfriars Church, and St Paul's Church, pleaded—“The defenders being bound to provide the pursuer as minister of said church with a competent and legal stipend, and in the circumstances condescended on a stipend of £900 being a competent and legal stipend, the pursuer is entitled to decree as concluded for.”

The pursuers the ministers of St Enoch's Church, St George's Church, St John's Church, and St James' Church pleaded—“1. Under the decree of erection” ( founded on in each case) “the defenders are liable in payment of a competent and legal stipend to the pursuer as minister of the said church. 2. In the circumstances condescended on the pursuer is entitled to decree for payment of a stipend of £900 as concluded for, as the competent and legal stipend due to him as minister foresaid by the defenders.”

The cases were heard together in the procedure roll.

On 25th November the Lord Ordinary ( Hunter) dismissed the actions at the instance of the ministers of the Tron, Blackfriars, St Paul's, and St George's, and in the actions at the instance of the ministers of St Enoch's, St John's, and St James' found and declared in terms of the declaratory conclusions of the summons, appointed the causes to be put to the roll that parties might be heard on the petitory conclusions, and granted leave to reclaim.

Opinion.—“Actions have been raised by the ministers of seven of the churches of Glasgow against the Corporation of that city. In each case the pursuer seeks ( first) declarator that the defenders are bound to furnish and provide him with a competent and legal stipend suited to the circumstances of the time and the position and duties of the benefice during his lifetime and his serving the cure; and ( second) decree against the defenders for payment of £900 as a competent and legal stipend, or such other sum as in the circumstances shall appear to be a competent and legal stipend. The churches referred to are the Tron, Blackfriars, St Paul's, St George's, St Enoch's, St John's, and St James'.

A short account of the history of these and three other churches of the city of Glasgow will be found in a note at p. 175 of Part I of the Charters and other Documents relating to the City of Glasgow, A.D. 1175–1649,

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edited by Sir James Marwick, Town Clerk of Glasgow. For the purposes of the present opinion it is not necessary to refer to this note in detail. I quote the following passage—‘While the minister of the High Church draws his stipend from the teinds of the entire original parish, the ministers of the other nine parishes quoad sacra receive their stipends out of the common good or general property of the burgh, into which the seat rents of all the churches, including the High Church, have been regularly paid since seat rents were first levied.’ The High Church is the Cathedral, with which this case is not concerned. The pursuers in the present actions are all receiving stipends of £425, a sum fixed by the defenders for the city ministers in 1830. Their present claim depends upon the nature and extent of the legal obligation, if any, resting upon the defenders towards the pursuers.

I propose to deal first with the last four mentioned of the seven city churches, as these four were all erected by decree of the Court of Teinds on application made to that Court by the Corporation, on whom the patronage of the churches and the right to levy the seat rents were conferred.

In the decree relative to St George's it appears that the summons had proceeded on the narrative that the Old Wynd Church of Glasgow had been condemned as insufficient and a new church had been built by the Corporation, and that as the endowing of the minister with a competent stipend out of the town's revenues would be a public benefit they had by Act of Council allocated to the minister a yearly stipend of 2000 merks Scots money, being the legal stipend or annuity settled by the Magistrates and Town Council on their other stipendiary ministers in the city, without prejudice to the said minister receiving such additional stipend over and above the legal stipend as the Council by their Act should please to confer and bestow on him to make him equal to the town's other ministers. The Court of Teinds found and declared that a seventh church should be planted and erected in the city of Glasgow under the burden, inter alia, imposed upon the Town Council and community of providing the ministers who should serve said church with a competent and legal stipend of 2000 merks.

In the decree of erection of St Enoch's, dated 17th July 1782, the Magistrates, Town Council, and community are taken bound to furnish and provide the ministers who should serve at the church with a competent and legal stipend not under 2000 merks.

From an extract from the decreet of erection of St John's dated 18th February 1818 it appears that the Corporation were taken bound to furnish and provide the ministers who should serve the cure at said church with a competent and legal stipend not under £400 sterling without prejudice to the said ninth minister receiving such additional stipend as the pursuers ( i.e., the Lord Provost and others… for themselves and as representing the whole body and community of the city) might afterwards think fit to confer.

In the case of St James the decreet of erection was dated 7th June 1820. From the extract it appears that the decerniture was in terms of the libel, and the obligation imposed upon the Corporation was to provide the minister with a competent and legal stipend not under the sum of £400 sterling, without prejudice to the said tenth minister receiving such additional stipend as the pursuers might afterwards think fit to confer. It may be noted that by this decreet of the Court of Teinds the city and parish of Glasgow was divided into ten separate parishes quoad sacra.

In the case of Peters v. The Magistrates of Greenock, 1892, 19 R. 643, and 1893, 20 R. (H.L.) 42, the minister of one of the churches in Greenock brought an action similar to the present against the Magistrates of that town. He founded upon a decree pronounced by the Court of Teinds in 1741 that the bailies, feuars, and inhabitants of the town were bound to provide the minister of the new church to be erected with a competent and legal stipend not under 950 merks. The House of Lords held that the decree of the disjunction and erection embodied a judicial contract, to which the predecessors of the defenders were parties, and that on a just construction thereof the defenders were bound to provide the pursuer and his successors in office with a ‘legal and competent stipend suited to the circumstances of the time and the position and duties of the benefice.’

The Lord Chancellor in the course of his opinion said—‘It was argued that the authorities of the burgh could not in the year 1741 lawfully undertake such an obligation as this so as to bind their successors. I cannot concur in this view. The town could not of itself have erected the new parish. It was necessary for that purpose to resort to the Court of Teinds, and that Court was, I think, entitled to make it a condition of the decree of disjunction and erection that proper provision should be made for the stipend of the minister.’ Lord Watson said—‘The language in which the obligation is expressed does not favour the suggestion that the minister's stipend was to consist of 950 merks, it being left to the burgh managers to determine whether they would or would not make a further allowance. I can hardly conceive that the Court of Teinds would have described an income of which the sufficiency was to be dependent on the goodwill of the municipality as a competent legal stipend which they were “bound” to provide; or that the Court meant to give the seat rents to the burgh without any obligation to apply the surplus towards augmenting the stipend, which is the contention of the appellants.’

The only case previous to the Greenock case dealing with the construction of similar language in a decreet of the Court of Teinds is Caesar v. Magistrates of Dundee, reported in a footnote to the Presbytery of Dundee v. The Magistrates of Dundee, 20 D., at p. 859. The decision was by Lord Wood, who said—‘It appears to the Lord Ordinary that the terms of the decreet, according to their natural or prima facie meaning, do not import that a stipend being once regularly

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fixed, which in amount was a competent and legal one at the time, it was thereby to become the permanent and unchangeable stipend in all time coming, the obligation in the decreet upon the burgh as regards the extent of stipend exigible being thereby exhausted. It is thought that the obligation to provide “a competent and legal stipend “out of the revenue of the burgh, not under the sum of 1000 pounds Scots money “yearly,” had in view not merely that when the decree was first given effect to the minister should be supplied with a sum of stipend at that date sufficient for his suitable aliment and support, but the imposing upon the burgh a continuous obligation to supply such stipend in future according to existing circumstances at the time.’

A similar result was reached in the case of Rainie v. Magistrates of Newton-on-Ayr, 1895, 22 R. 633, an argument being rejected that the true reading of the decree was that the minister was not entitled to get more than £60 unless the seat rents, which constituted the contingent fund referred to in the decree, were sufficient to allow of an augmentation being made, and unless the committee in charge of those funds resolved to make such augmentation.

In contrast to the decisions to which I have referred, the case of Thomson v. Magistrates of Greenock, 1896, 23 R. 405, may be noted. In this case the magistrates of a burgh had brought a summons in the Court of Teinds concluding for disjunction and erection, and also concluding that they should be bound to provide the minister of the new parish in a ‘competent stipend.’ The Court pronounced an interlocutor by which they decerned in the disjunction, erection, and annexation quoad sacra, as libelled, on the Magistrates … engaging to be answerable for a stipend of £200 a year. It was held by the Second Division, affirming the judgment of Lord Kyllachy, that the Court of Teinds had decerned ‘as libelled’ only in regard to the conclusion for disjunction, erection, and annexation quoad sacra, and that the Magistrates were liable for a stipend of £200 a-year only.

The cases before me, so far as the churches erected under decree of the Court of Teinds are concerned, fall to be decided upon the principles of interpretation recognised in the decisions mentioned. So far as St ‘John's and St James’ are concerned, the obligation imposed upon the Corporation is similar to that in the case of the Magistrates of Greenoek, except that there is a provision that the Magistrates may increase the stipends as they may see fit. The addition of these words, it was maintained for the defenders, left the periodical augmentation of the stipends of the ministers of these churches entirely in the discretion of the Magistrates. This does not appear to me to be a sound argument. What is conferred upon the Magistrates is a right to make a supplementary allowance over and above the legal and competent stipend. There is no qualification of the obligation to provide such a stipend, and the determination of that matter rests not with the Magistrates but with the Court.

St Enoch's appears to me to be in a similar position. In fact, in the excerpt from the extract decree with which I was provided, there is nothing to indicate any qualification of the obligation or to afford any distinction between this case and Peters' case.

St George's is in a different position. The obligation imposed in that case is to provide a competent and legal stipend of 2000 merks. These words appear to me to fix at a certain amount the extent of the obligation. The words ‘not under’ are left out, and there does not therefore appear to be any ground for increasing the amount on a change of circumstances. In this case the grant of any additional stipend to put the minister on a footing of equality with the other ministers of the city is left to the discretion of the Magistrates. It may appear anomalous that there should be this distinction between the rights of different ministers in the city, but the decision in the two Greenock cases, which are both binding upon me, show that such differences in the position of different ministers in the same town occurred in other burghs.

The situation as regard the three earlier churches, i, e., the Tron, Blackfriars, and St Paul's, which were erected before the establishment of the Court of Teinds in 1707, remains to be considered. In the records in the actions relative to these churches the pursuers state—‘Prior to the year 1636 several gifts of lands were made by the Crown to the defenders' predecessors in office on consideration of maintaining and upholding certain churches then erected in Glasgow. On 16th October 1636 King Charles I confirmed all the charters, writings, rights, and privileges previously granted to the defenders' predecessors in office, and that, inter alia, on consideration of their paying yearly to the ministers of these churches of a competent and sufficient stipend.’ They also found upon a bond, dated 21st April 1649, granted by the Corporation in favour of the pursuer's predecessors in office under which the former undertook payment of reasonable and competent stipends to the ministers of these churches. The reference in the charter to a competent stipend occurs in the narrative, and there is nothing to show that a continuing obligation of a varying amount was undertaken or imposed. So far as the bond is concerned the obligation is of fixed amount. These points are practically admitted by the pursuer's counsel at the debate. They maintained, however, that all the city churches had in the past been treated by the Magistrates as on a footing of equality, and that I ought therefore to find in favour of the existence of an obligation similar in character to that imposed by the Court of Teinds proved from the actings of the defenders and their predecessors in office. Proof was not asked upon any question of fact, and I gather from the statement made to me that it was admitted that an allowance of proof would not assist the pursuers' case. I do not think that I am entitled to assume in the pursuers' favour that the defenders were under

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legal obligation to make the different augmentations of stipend which were given. Their actings are equally consistent with their having in their discretion made allowances in excess of what they could have been forced in a court of law to make.

As a result of the foregoing opinion I shall, in the actions at the instance of the ministers of St Enoch's, St John's, and St James', give decree in terms of the declaratory conclusions of the summonses, and appoint the causes to be enrolled that the parties may be heard on the petitory conclusions. The other four actions will be dismissed.”

In the actions at the instance of the ministers of the Tron, Blackfriars, St Paul's, and St George's the pursuers reclaimed, and in the actions at the instance of the ministers of St Enoch's, St John's, and St James' the defenders reclaimed.

Argued for the pursuers—(1) With regard to the Tron Church, Blackfriars Church, and St Paul's Church, the judgment of the Lord Ordinary was wrong. The Acts of the Privy Council, the grants of land by the Crown, the charter of King Charles I, the legislation of the period, and the bond by the Corporation instructed a right to a competent and legal stipend, and the augmentations given in the past by the Corporation were a recognition of the right. The following authority was referred to— Wishart v. Edinburgh Magistrates, 1766, 2 Pat. Ap. 118. (2) With regard to St George's Church the judgment of the Lord Ordinary was wrong. The decision in Peters v. Greenock Magistrates, 1892, 19 R. 643, 29 S.L.R. 507, 1893, 20 R. (H.L.) 42, 30 S.L.R. 937, did not turn on the use of the words “not under.” (3) With regard to St Enoch's Church, St John's Church, and St James' Parish Church, the judgment of the Lord Ordinary was right. The following authorities were referred to— Peters v. Greenock Magistrates; Thomson v. Greenock Magistrates, 1896, 23 R. 405, 33 S.L.R. 293; Rainie v. Magistrates of Newton-on-Ayr, 1895, 22 R. 633, 32 S.L.R. 501; Caesar v. Magistrates of Dundee, 1848, 20 D. 859; Erskine i, 5, 23.

Argued for the defenders—(1) With regard to the Tron Church, Blackfriars Church, and St Paul's Church, the judgment of the Lord Ordinary was right. The grants of land, &c., founded on by the pursuers did not instruct an obligation, contractual or otherwise, on the Corporation to augment the original stipends, and, moreover, the statutory validity of the Acts of the Privy Council was doubtful. The following authorities were referred to— Clapperton v. Edinburgh Magistrates, 1840, 2 D. 1385; Duncan, Parochial Ecclesiastical Law, p. 297; Erskine, i, 5, 23. (2) With regard to St George's Church, the judgment of the Lord Ordinary was right. (3) With regard to St Enoch's Church, St John's Church, and St James' Parish Church, the judgment of the Lord Ordinary was wrong. The following authorities were referred to— Peters v. Greenock Magistrates, cit.; Thomson v. Greenock Magistrates, cit., per Lord Kyllachy (Ordinary) at 23 R. 409, 33 S.L.R. 295; Kilmarnock Magistrates v. Aitken, 1849, 11 D. 1089.

At advising—