United Kingdom House of Lords Decisions

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Cite as: [1711] UKHL Robertson_16

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SCOTTISH_HoL_JURY_COURT

Page: 16↓

(1711) Robertson 16

REPORTS OF CASES ON APPEAL FROM SCOTLAND.

Case 7.

James Durham of Largo Esq. Appellant

v.

Robert Lundine Esq. of Lundine, Alexander Watson of Aithernie, Andrew Lundine of Straitherlie, and John Lundine of Baldaster, Respondents

20th March 1710–11.

Subject_Appeal. —

An appeal competent, from a decreet in 1698, and interlocutor in 1708, though objection made that a decreet in 1707, confirming that in 1698, was not appealed from.

Subject_Teinds. —

Prorogations of tacks of teinds, where an augmentation of stipend was small, reduced from fix 19 years to one 19 years.

The appellant was patron of the parish of Largo. In 1698, the then minister of Largo, during the appellant's minority, obtained decreet of the commissioners for plantation of Kirks and valuation of Teinds, for an augmentation to his stipend of about 14 l. per annum, which was allocated upon the teinds of several heritors of the parish:—And in consideration of this augmentation, the commissioners granted to the respondents, who were tacksmen of teinds in the parish, prorogations of their tacks for six 19 years, to commence after expiration of their current tacks, which had then eight years to run. This decreet mentioned the shares of the whole stipend to be paid by the proprietors of lands in the parish, part being to be paid out of the teinds of lands belonging to the appellant.

In 1707 the appellant obtained a decreet of the Lords of Session against the respondents, by which their old tacks were declared to have expired in 1706, yet the decreet of the commissioners in 1698, for prolonging their respective terms, was thereby confirmed.

In 1708 the appellant brought an action before the Lords of Session, as commissioners for plantation of Kirks and valuation of teinds, for reduction of the said decreet of 1698, on the grounds that it had been obtained during his minority, that no part of the stipend ought to have been allocated upon his teinds, and that the prorogations granted to the tacksmen were altogether disproportionate to the augmented stipend charged upon their teinds.

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The Lords Commissioners, on the 23d of June 1708, “found and declared, that the appellant was not prejudiced by his not claiming that his own lands ought to have been exempted from paying his proportion of the minister's stipend; and therefore refused to relieve the appellant from the said decree of the Commissioners for planting of Kirks in 1698, and dismissed his action.”—The appellant reclaimed, and the commissioners, on a rehearing of the cause in July 1708, adhered to their former interlocutor.

Entered 2 January 1710–11.

The appeal was brought from “a decree or sentence of the Lords of Council and Session, pronounced the 23d day of June 1708, and a rehearing thereof in July following, whereby they have affirmed the prolongations, granted by the Commissioners for plantation of Churches, to the respondents, of their respective tithes within the parish of Largo.”

Heads of the Appellant's Argument.

1693, c. 25.

By an act of the Scots parliament, 1693, c. 25. it is expressly provided, that the teinds of the lands belonging in property to the patron should be freed from paying any part of the maintenance of the minister, but that the same should be laid proportionally upon the teinds of the respective proprietors of the parish. From this, it appears, that the decreet of 1698, appealed from, whereby the appellant's own lands were burthened with a considerable part of the minister's maintenance, is expressly contrary to the said act of parliament; and he ought to have been relieved against his decreet, which was pronounced during his minority.

1690, c. 23.

Though by the act 1690, c. 23. the patron's right to the teinds is burthened with the tacks then subsisting, or prolongations thereof to be made, yet that only hinders the patron from making any greater demand upon tacksmen, while their tacks are current, than the tack duties therein contained; and does not preclude, but that after expiration of these tacks, the patron shall be entitled to have his own lands exempted, and to have the share of the stipend formerly paid by him laid proportionally on the respective proprietors of lands in the parish, who in recompence have prolongations made of their tacks.

The said act 1690, c. 23. expressly imports that all prolongations to be granted of tacks of teinds shall be effeiring to the augmentation granted. But in the present case no such proportion has been observed; for the augmentation is only about 14 l. per annum, and the teinds of the parish, exclusive of those of the appellant's own lands, over and above paying the whole stipend to the minister, are worth about 100 l. per annum.

Heads of the Argument of the Respondent Robert Lundine ^(a).

This appeal is not regularly brought; for the decree which the appellant obtained in 1707, declaring the old leases to be expired, but ratifying the decree of 1698, is not appealed from by him.

_________________ Footnote _________________

(a) No other respondent's case has been found.

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And therefore though the decree of 1708 should be reversed, that of 1707 must still subsist.

In 1633, Patrick Black, then patron of the parish of Largo, (to whom the appellant is singular successor in this patronage and estate of Largo,) having right to the whole teinds of the parish by a tack from the then parson, did, for an onerous consideration, fell and dispone to the respondent's ancestor, not only all his then interest in the teinds of the estate of Lundine, by virtue of the tack granted to him or otherwise, but also all such future right and title to the said teinds as he the said Patrick Black, his heirs or successors, should or might claim or acquire, so far as concerned the lands and barony of Lundine. And he thereby obliged himself, his heirs and successors, patrons of the said church and parish of Largo, to do all further acts for establishing heritably, or otherwise, the right of the teinds of the lands and barony of Lundine, in property to the respondent's ancestor, his heirs and successors, he and they indemnifying the said Patrick Black, his heirs and successors, from the minister's stipends laid or to be laid on the lands of Lundine: and Patrick Black then agreed to take a proportional Share with the respondent, and other heritors, of the minister's stipend upon his own lands.—When the appellant's ancestor, therefore, purchased the said estate and patronage of Largo, he took it with such share of the minister's stipend charged thereon, and had an allowance for the same in his purchase. The right of the respondent's ancestor to the teinds of his own estate, is by the same acts of parliament whereon the appellant founds his right expressly excepted and reserved to him by these words, “ not heritably disponed.”—Thus the same accidental interest, which was by that act given to patrons, did as to the teinds of his own estate accrue to the respondent; and in this respect the appellant's case is quite different from that of other patrons and heritors.

By the decreet of 1698, the appellant's estate is not charged with any part of the augmented stipend, it only charges him with part of the old stipend, which Patrick Black, his predecessor, took upon himself, and which was deducted in the purchase by the appellant's ancestor.

The same act of parliament which gave to patrons the right to teinds “ not heritably disponed,” did it with the burthen of augmentations to the stipends of ministers, and of tacks and prolongations thereof to heritors: and the prolongation to the respondent granted in the decreet of 1698, is warranted by all the acts appointing Commissioners for plantation of Kirks, &c., who are thereby empowered to grant such prolongations, without any restriction as to the length of the then current tacks, or for what terms they should be prolonged.

Judgment, 20 March 1710–11.

After hearing counsel, It is ordered and adjudged, that the decree or sentence complained of in the said appeal made in the year 1698 by the Commissioners for the plantation of Churches for prolongation of the leases therein mentioned for six 19 years, and the decree or sentence made in the year 1708, 19 years.

Counsel: For Appellant, Jo. Pringle.
For Respondents, Sam. Dodd.

1711