Scottish Court of Session Decisions

Subject_1 PROOF.
Subject_2 DIVISION I.

Allegeances how relevant to be proved.
Subject_3 SECT. XII.

Verbal Contracts.

Mr Matthew Coupar
v.
Earl of Roxburgh

Date: 26 February 1696
Case No. No 232.

Found, that the declaration of a patron's chamberlain was not probative against his constituent of the yearly quantity of stipend; neither could it be proved by witnesses.

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The Lords advised the cause between Mr Matthew Coupar, late minister at Lilliesleaff, alias Lilsly, against the Earl of Roxburgh, patron of the said church, for his stipend, who gave him an allocation on sundry broken tenants, and in very small parcels. Alleged, He was not bound to accept it, because, by the law of this kingdom, stipends are a burden affecting the teinds, and if it be not localled, the minister may betake himself to the heritor intromitting, or any possessor he pleases, as far as their teind will reach; as was found the 3d of December 1664. Earl of Cassillis against Hutchison, voce Stipend. The Lords found, where ministers pursued before the commission for plantation of kirks for a locality, there the patron might make an allocation; but in this process before the Session it was not receivable; but the minister might distress any to the value of their teinds, ay till his stipend were settled. See Stipend.

1697. July 2.—Mersington reported Mr Matthew Coupar, late minister at Lilliesleaff, alias Lilsley, and Sir John Riddle his assignee, against the Earl of Roxburgh and his Curators. The pursuit was for several years' stipend he had served the cure at that kirk. The defence was, 1mo, Whereas he libelled 1200 merks yearly, they denied that to be the true quota of the stipend; 2do, He claimed the whole year 1694, whereas he deserted them at the Whitsunday, and so can have right to no more but the first half of that year. Answered to the first, He proved the yearly stipend to be 1200 merks, by a declaration under my Lord Roxburgh's chamberlain's hand, acknowledging the same; and, if need be, offers to prove it by the oath of the last incumbent, and present minister; and for the second, Esto it were true, non-residence is the ground of a church censure, but does not take away his right to the stipend till he be deprived; and wherever the animus possidendi appears, it can never be held pro derelicto. Replied to the first, No chamberlain's declaration can bind a debt upon his constituent, unless you prove scripto vel juramento that he had a warrant; and the former and subsequent minister cannot be adduced to prove the quota of the stipend, because no sum above L. 100 Scots can be proved by witnesses. Delivery of victual-stipend may be so proved indeed; but, in order to constitute and fix what is the quota of a stipend, it is not probable by witnesses; 2do, If he founds on the chamberlain's declaration, he must take it in toto and not divide it; whereas it was truly an offer of two years' stipend at the rate of 1200 merks yearly, providing he pass from that half year controverted, which my Lord Roxburgh, as patron, had disposed upon to a pious use as vacant, and so nequit idem approbare et reprobare; and the offer never being accepted by the minister, but still rejected as claiming that half year, he can never found on that paper. The Lords found the chamberlain's declaration not probative of the yearly quantity of the stipend; neither would they allow it to be proved by witnesses, but only scripto, by the decreet of locality, or discharges; but found the minister had right to the last half year 1694, and that it was not vacant, both in respect of the Presbytery's testificate, and of his admission to the kirk of Ochiltry, which was not till after the Michaelmas that year.

Fol. Dic. v. 2. p. 231. Fountainhall, v. 1. p. 716. & 781.