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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Buchanan v. Magistrates of Dunbar [1866] ScotLR 2_166_1 (4 July 1866) URL: http://www.bailii.org/scot/cases/ScotCS/1866/02SLR0166_1.html Cite as: [1866] ScotLR 2_166_1, [1866] SLR 2_166_1 |
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Page: 166↓
An application to the Court of Teinds for decree for communion elements, directed not against heritors, but persons said to be bound to furnish them under an obligation undertaken in 1618, held incompetent.
In the year 1860, the Rev. John Jaffray, then minister of the parish of Dunbar, raised a summons of augmentation, modification, and locality against the heritors of the parish, concluding for an augmentation of the stipend of the parish, with a competent yearly allowance for communion elements. On 16th January 1861 the Court of Teinds augmented the stipend to 21 chalders, “and that for stipend (the communion element money being paid by the burgh of Dunbar).”
It appeared that the Provost of the burgh had in the year 1618 consented on behalf of the community,
Page: 167↓
“so oft as the communion shall happen to be celebrated thereanent, in all time coming, to furnish the elements to the celebration of the communion at the said kirk;” and accordingly a decree of modification of stipend pronounced in that year contains the following finding:—“And sic like the said commissioners, in respect of the consent of the said Mr John Aitchison, Provost of Dunbar, above written, finds and declares that the Provost, Bailies, Council, and community of the town of Dunbar above mentioned are and shall be obliged, so oft as the communion shall happen to be celebrate thereanent, in all time coming, to furnish the elements to the celebration of the communion at the said kirk.” In subsequent decrees of modification of stipend pronounced in 1767 and 1833, the obligation of the burgh to furnish the communion elements, according to use and wont, was recognised. A dispute has arisen betwixt the minister and the magistrates as to the quantity of wine which the latter are bound to furnish, the minister contending that he is entitled to six dozen annually, while the magistrates say they are only bound to furnish as much as is actually necessary. The minister accordingly presented a petition to the Court, on the footing that the conclusion of the summons of 1860 were not exhausted, no decree having been pronounced for communion elements, in which he prayed the Court to “award and decern, to and in favour of the petitioner and his successors in office, serving the cure at the Kirk of Dunbar, in name of communion elements, by decree against the Magistrates and Town Council of Dunbar, as representing the said burgh and community thereof, either the annual allowance of twenty-two loaves of bread and six dozen of wine, as hereinbefore set forth, or else a money payment of £15 a year in lieu and place thereof; and to remit to the Lord Ordinary, before whom the locality of the stipend of the said parish is now depending, to give effect to said decerniture in framing and adjusting the locality of the stipend. It was stated in the petition that “for upwards of sixty years the burgh of Dunbar had been in use to give the minister of the parish annually, in satisfaction of his claim against them for communion elements, twenty-two loaves of bread and six dozen of wine; but in the month of November 1865 it was officially intimated to the petitioner by the Town-Clerk that the Magistrates and Town Council hold that this allowance is too large, and that they intend in time coming to approximate the supply of bread and wine to the quantity which may be actually consumed in church at the celebration of the communion.” It was also stated that “by this procedure on the part of the burgh of Dunbar the interest of the benefice will be injuriously affected, and it has in consequence become the duty of the petitioner, on behalf of himself and his successors in office, to take steps for having the allowance for communion elements put on a satisfactory and permanent footing, according to use and wont, or otherwise according to law.”
The Magistrates stated in their answers that they were willing to implement the obligation upon them, but that in consequence of there being now a Chapel of Ease in the parish, and of the number of communicants in the Parish Church being thereby, as well as by the progress of dissent, considerably reduced, it was not now necessary that so much wine should be furnished as formerly.
Gordon, for the petitioner, argued—This is a petition in the augmentation process, the conclusions of which are not exhausted. It was omitted, when the augmentation was granted, to ask a decree against the Magistrates, in terms of the finding in the decree of 1618, and the use and wont which has followed thereon.
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We have a finding or declarator in 1618 that the elements shall be furnished by the Magistrates in all time coming, and the Court has surely power to give effect to its own finding.
Gifford and D. B. Hope, for the Magistrates, answered—This is not a demand made against the heritors. It is made against the Magistrates, but not qua heritors. The conclusion of the summons of augmentation was for a decree against the heritors, as intromitters with the teinds, for sums payable out of them. There is no conclusion against the Magistrates for communion elements.
The Lord Justice-Clerk—I do not entertain any doubt in regard to this matter. It has been admitted that the demand is entirely unprecedented. It is admitted that this Court has never awarded a sum for communion elements, except in terms of a summons of augmentation, modification, and locality, and never except out of teinds. That itself goes a long way to show the incompetency of this Court to award what is asked out of the common good of the burgh. But further, the summons under which an augmentation was obtained in 1861 was framed in the usual way, and contained a conclusion for payment of the communion elements by the heritors who usually pay for them. The judgment granting the augmentation assigned as a reason for making no award for communion elements the fact that they were otherwise provided for. The conclusions, therefore, seem to me to be exhausted. We cannot pronounce the decree asked, partly because the conclusions are exhausted, and partly because what is asked is not within the conclusions; for what we are asked to do is to pronounce a decree, not against the heritors, but against the Magistrates of the burgh. Then, when we look to what was done in 1618, it seems to me to constitute an ordinary civil obligation founded on contract, and to be interpreted by use and wont. It was not a decree by the Court of Teinds, but a finding by a particular Commission of Parliament created for a temporary purpose, which lasted only one year, and which cannot be in any way regarded as the predecessor of this Court. I am therefore of opinion that this is an incompetent application.
The other Judges concurred, and the petition was accordingly refused as incompetent.
Solicitors: Agents for Petitioner — Mackenzie, Innes, & Logan, W.S.
Agents for Respondents — J. & J. Milligan, S.S.C.
