Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 I sat in the Outer-House this week.

The Reverend Michael Potter
v.
the Heritors of Kippen

Date: 31 January 1708

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Mr Michael Potter being admitted minister at Kippen, in Stirlingshire, in 1700, and the manse being very ruinous, there is a visitation made by the presbytery of Dumblane, who gave it as their opinion, that the minister ought to have sixty pounds Scots yearly for a house-maill, aye till he be provided by the heritors in a sufficient habitable manse; and that he ought to have L.20 yearly as the value of grass for two kine and a horse, conform to the 20th Act, 1663, till he get as much grass allocated to him; and recommended to the civil magistrate and judges to interpose their authority thereto. Upon this act Mr Potter raises an action against his whole heritors; and obtains a decreet before the Lords for the said L.60 Scots of house-rent aye till the manse be rebuilt, and the L.20 for the grass aye till he be furnished and allocated. And having charged Stirling of Cairden, Graham of Bucklyvie, and others, for payment, they suspend on thir reasons: 1mo, The decreet was in absence, and was a while under submission, and yet extracted before up-giving of the communing. 2do, The presbytery's act is null; for, though they be empowered by Acts of Parliament, in relation to the building and repairing of manses, yet not for modifying damages for want of one. 3tio, The manse was not so ruinous; for, at his admission in 1700, the heritors and ministers dined in it; and he, by deserting it, has made it to decay more than otherwise it would have done; and the heritors have stented themselves in L.100 sterling for repairing it, that it may be declared a free manse. Likeas, there are vacant stipends in the parish that ought to be applied, primo loco, to this end. 4to, For his L.20 of grass-maill, that is only due by law out of the kirk-lands in the parish; and so cannot be settled till they be condescended upon. 5to, Esto they were liable for his house-rent till he get his manse, yet he can demand no more than what he really pays for the house he presently hires, which is only L.40 Scots; and he can seek only one cow's grass, because they offer to prove he has grass for one cow already; and so can burden the parish with nothing but grass to the other. 6to, They being charged in general, without expressing their several proportions of the L.60 for the house-rent, and L.20 for the grass, it is impossible they can give any obedience thereto.

Answered to the first,—Though the decreet was in absence, yet that is no good reason where you are personally apprehended and contumacious. And it is great confidence to found on the communing, for that was in the 1705, on the heritors' promise to concert it among themselves, for which he gave them three months; instead whereof he forebore extracting his decreet for two years, till he saw they would do nothing. To the second, If the presbytery may determine in the repairing and building of manses, it is a consequence, a majore ad minus, that they may determine the quota of a habitable manse, or the house-rent to be paid in the interim until he get possession of a habitable manse: and every heritor needs not be cited by messengers to this effect; but an edictal citation from the pulpit, warning them of the diet of attendance, is sufficient; though here more caution was used, by sending circular letters to every one of them. To the third, The instance is very impertinent, that, in a fair summer day, the ministers took a little refreshment in that manse: for it is known, that, in the winter following, one of its gables fell to the ground; and, though workmen were entered to it, yet they deserted, because sundry of the heritors were backward in paying up their proportions. So, to this hour, the manse is neither water-tight nor wind-tight; and it is known tradesmen will not work except either paid, or that some responsal persons give their engagement for it. To the fourth, The minister's grass affects the kirk-lands primo loco; and that is a good defence amongst the heritors themselves; and, when they are agreed, he shall accept of it; but, in the meantime, he must have the L.20 the Act of Parliament has liquidated in the place of it. To the fifth, It is true he has hired a house from Glentirren, for L.40 Scots; yet it is at such an inconvenient distance from his church and glebe, that, in leading out his muck, and other inconveniences, he is at great expenses: and, esto he had it gratis, which is not so, that can never exoner the other heritors, seeing he stands debitor beneficii. And he is at charges in repairing and upholding it, besides what expenses he paid in citing them, and extracting this long decreet, which far exceed this sixty pounds of house-rent acclaimed. And, for his cow's grass, it is a sophism; for he is obliged to cast part of his glebe (which is not four acres, as it ought to be,) into grass, else he could neither maintain horse nor cow; so this is a most frivolous, unjust, calumnious pretence, to have his glebe to serve for grass and all. To the sixth, The minister did all that was incumbent on him. He extracted their valuations out of the cess-books of the shire, and gave in a cast If they had objected that they were overvalued or wronged in their quota, they would have been heard; but they have said no such thing. And whenever they put the manse in a habitable condition, and agree on his grass, then this rent will cease, and the heritors will be free of the demand.

The Lords refused the bill, and repelled the reasons of suspension, in respect of the foresaid answers.

Vol. II. Page 424.