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Scottish Court of Session Decisions >>
Wright v Binning. [1801] Mor 14833 (8 December 1801)
URL: http://www.bailii.org/scot/cases/ScotCS/1801/Mor3414833-041.html Cite as:
[1801] Mor 14833
A Minister is entitled to the selling prices of the victual due as bygone stipend.
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The Reverend James Wright, Minister of Maybole, obtained (23d November, 1796,) an augmentation of stipend in the teind-court. The process of locality was not yet (1801) settled; and at last he extracted the decree of modification, and charged for the bygone augmented stipend, commencing with the half of crop and year 1795. The heritors proposed paying the victual according to the fiars of the respective years for which it was due; but Wright claimed the selling prices at Candlemas, because, in the county of Ayr, the fiars do not ascertain the price of the best and the price of the worst bear; nor do they ascertain the price at Candlemas, when victual stipend is payable; but they fix an average of the prices of best and worst from November to March. During some of the years in question, the market price in the parish of Maybole was double of the fiars of the county. In support of this claim, were quoted Barclay against Simpson, No. 1. p. 4413. voce Fiars of the year; Henderson against Henderson, No. 4. p. 4415. Ibidem; Mitchell against Reid, 10th July, 1800, (not reported; see Appendix.) The Minister is entitled to the ipsa corpora; and if these are not demanded, the heritors must pay the selling market-price; the price they have themselves actually obtained for the victual.
The Lord Ordinary, (11th July, 1801) rejected this claim, and found him entitled only to the fiar prices of the bygone victual-stipend; but on advising a petition and answers,
The Court (8th December) altered this interlocutor,
Although the heritor pleaded, That he could not be obliged to keep the grain itself from the market for a course of years, nor could the Minister be obliged to accept of the market price, if it happened to be lower than the fiar price. While this last is the fixed rule by the provision of the law, as the act of sederunt, 21st December, 1723, expresses it, “to liquidate the price of the victual in divers processes that come before the Court of Session and the subordinate judicatories,” it would be difficult to ascertain the real price from the fact, amid the fluctuations of the market, and depending upon the varying skill and speculations of buyer and seller. In so much is this held to be the rule, that objections to the accuracy of the fiars are never listened to; Treasurer of Aberdeen against Feuers of Elsick, No. 5. p. 4415. voce Fiars of the year, as it would produce great uncertainty and much delay and expense in the administration of justice.
Lord Ordinary, Meadowbank.Act. A. Campbell, junior.Agent, P. Robertson.Alt. Fergusson.Agent, A. Blane, W. S.Clerk, Home.
Fac. Coll. No. 10. p. 21.
