Scottish Court of Session Decisions

In 1647, Mr Andrew Auchinleck, the parish minister of Dundee, which is partly a landward parish, obtained a decree of locality, &c. from the Court of Teinds, in a process in which the Viscount of Dudhope,: patron, and tacksman of the teinds, was a party. Graham of Claver-house, and others, apparently the heritors of the parish, and also the Magistrates of the burgh of Dundee, were also parties. The decree (as established in a recent proving of the tenor) modified and ordained— “the soume of 1200 merks Scots money, to be the constant modified stipend of the said kirk of Dundee, without any farder augmentation to be granted thereto at any time coming; to be paid be the said John Viscount of Dudhope, his heirs and successors, patrons of the said kirk, and as titular and tacksman, to the said Mr Andrew Auchinleck and his successors yearly, serving the cure of the said kirk, forth of the readiest of the parsonage teinds of the said parish, at two terms in the year, Whitsunday and Martinmas, by equal portions, beginning the first term's payment of the said stipend at the feast and term of Whitsunday 1644 years, and swa forth yearly and termly thereafter. As also the said commissioners decerned and ordained the provost, baillies, council, and commvnity of Dundee, and their successors, to repair and maintain the haill fabrick and body of the great kirk of Dundee, called the Lady Kirk; also well the quire and third part of the samen, as the of the said kirk; as also to furnish the communion elements and other necessaries thereto, swa often as the samen shall be administrate within the said kirk of Dundee, the said John Viscount of Dudhope, and his foresaids, payand yearly to the said provost, baillies, council, and their successors, fifty merks Scots money, and that for the relief of so much of furnishing the said communion elements yearly, and sicklyke, to furnish ane sufficient dwelling-house within the town of Dundee, to the said Mr Andrew Auchinleck and his successors, ministers thereat, and to pay the maill and duty of the samen upon their own proper charges and expenses; and the said Lords Commissioners assoilyied the said provost, baillies, and Councel of Dundee, and their successors, from any payment of any part of the said Mr Andrew Auchinleck his constant stipend, in all time coming.”

A prorogation of the tack of teinds was granted to Viscount Dudhope in the decree.

There was an old copy of the decree, which purported that these terms were the result of a contract between the minister and the Viscount of Dudhope, and commissioners representing the burgh of Dundee.

Both before and after the date of the decree, the Magistrates of Dundee were in the practice of paying a certain sum in name of allowance for house-rent to their ministers. Not only the parish clergyman, but those who were paid from the funds of the town, received this allowance. At the date of the contract, the allowance to Mr Auchinleck was one hundred pounds Scots. It continued the same, apparently, till 1726, when the minister granted a receipt for one hundred and twenty-one pounds, ten shillings, and sixpence, Scots, being one hundred pounds for rent of dwelling-house, and twenty-one pounds, ten shillings, and sixpence, as stipend, out of certain lands acquired by the town. The whole, when converted into Sterling money, amounted to £10, 2s. 6d., and this sum, though latterly termed “stipend,” continued to be paid by the burgh to the minister till 1827.

Parties were at issue whether these payments were in terms of the decree 1647, and how far that decree had been acted upon in other respects.

The town of Dundee ultimately acquired the patronage of the church, and it was said that the tack of teinds to Viscount Dudhope became extinct. But no details were given as to either of these changes.

In 1828 the Rev. Dr M‘Lauchlan, parish minister of Dundee, obtained a decree from the presbytery, ordaining the heritors to erect a suitable manse and offices for him. The presbytery designed these accordingly, and on a spot without the ancient royalty of Dundee as it stood at the date of the decree 1647. The spot was, however, within the limits of the extended royalty. The presbytery also approved of a plan and specifications, and gave decree against the heritors for £1200.

The heritors offered a bill of suspension, founding on the contract and decree 1647, which they alleged to have exonerated them, and burdened the burgh of Dundee exclusively, as to the provision of a manse or dwelling for the minister. The minister answered, that whatever effect that arrangement might have, as between the landward heritors and the town, it could not affect his right to his manse and offices, nor prevent the heritors from being primarily liable to him.

The bill of suspension was refused.

The heritors then raised an action of relief against the magistrates of Dundee, as liable to provide the minister in a suitable dwelling or manse, in terms of the contract and decree 1647; and concluded that the burgh should be ordained either to furnish a manse and offices to the minister, or to relieve the pursuers of the whole expense of doing so.

The Magistrate, pleaded—

1. That as the heritors did not connect themselves with Viscount Dudhope, or any party entitled to found on the contract and decree of 1647, even if it were still in force, they had no title to avail themselves of it.

2. In point of fact, the whole provisions of that contract had been relinquished, and contrary acts had been performed by all parties for a period exceeding prescription.

3. The minister's right to a manse and offices was founded on the act 1663, c. 21; it was of a much more enlarged description than any provision for house maill, or a sufficient dwelling-house, as undertaken in the contract 1647; and it was a provision of an entirely different sort, for which the burgh was not liable. And,

4. Under that contract the town had it in view to secure the residence of the minister within the ancient royalty as it then stood; but the place where the manse had now been designed was nearly half a mile without the ancient royalty, and in a spot in choosing which the defenders were never consulted.

The Heritors answered—

1. That the chief part of the onerous obligation undertaken by Viscount Dudhope was the payment of the specified amount of stipend out of the teind, and the protection of the burgh from all future payment of stipend, even when augmented, as it repeatedly was; and they offered to prove that they had fulfilled this obligation; and as the burgh had, as such, paid no stipend, except in so far as they became landward heritors by purchase of ground, the pursuers were entitled to enforce against the burgh the counter-prestation of furnishing a sufficient dwelling-house to the minister.

2. They were ready to instruct that the contract of 1647 had been always recognised and acted upon, so as to elide the plea of prescription.

3. The obligation of the burgh to contribute towards a sufficient dwelling-house for the minister was anterior to the act 1663, and to the contract 1647; and their records showed they had always so contributed. Such use and wont inferred a legal obligation against them. ¹ But, whether this were so or not, they undertook onerously to provide a sufficient dwelling-house for the minister; and though a public law had afterwards fixed that this, in the case of such a parish, gave a right to a manse and offices, that did not liberate the burgh from their obligation. And,

4. The manse was within the new and extended royalty, and no prejudice was qualified by its being placed there. ^*