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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Buchanan v. Magistrates of Dunbar [1868] ScotLR 6_381 (26 February 1868)
URL: http://www.bailii.org/scot/cases/ScotCS/1868/06SLR0381.html
Cite as: [1868] ScotLR 6_381, [1868] SLR 6_381

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SCOTTISH_SLR_Court_of_Session

Page: 381↓

Court of Session Inner House Second Division.

Friday, February 26 1868.

Lord Cowan, Lord Benholme, Lord Neaves, The Lord Justice-Clerk

6 SLR 381

( Ante, ii. 166.) Buchanan

v.

Magistrates of Dunbar.

Subject_1
Facts:

Terms of an obligation under which the Magistrates of a. burgh were held not bound to furnish any specific quantity of bread and wine for communion elements, but only so much as was necessary.

Headnote:

This action was raised by the minister of the parish of Dunbar, to have it “declared that the defenders—the Provost, Magistrates, and Town Council of the royal burgh of Dunbar, as representing the burgh and community thereof,—are bound to furnish to the pursuer, the Rev. Robert Buchanan, while serving the cure at the kirk of Dunbar, twenty-two loaves of bread and six dozen of wine annually, in name of communion elements, being the quantities which the said defenders and their predecessors in office have been in use to furnish to the said pursuer and his predecessors in office, as ministers foresaid, in name of communion elements, from time immemorial, or for a period exceeding forty years, in terms of the obligation contained in the decrees of modification and locality of the stipend of the parish of Dunbar, come under by the said burgh, and as declared and set forth therein, and according to use and wont;” and to have the defenders ordained “to make payment to the pursuer of the sum of £12 sterling, or such other sum as may be fixed to be the value of the said quantities of twenty-two loaves of bread and six dozen of wine, in name of communion elements, which should have been furnished to the pursuer for, and applicable to the year 1866; and farther, to furnish to the said pursuer, while serving in said cure, the same quantities of bread and wine in name of communion elements, in the month of June in each year thereafter.”

The defence was, that under their obligation the Magistrates were not bound to furnish any specific quantity of bread and wine, but only so much as should be necessary for the proper dispensation of the sacrament. Their obligation was “to furnish the elements for the communion at the said kirk as often as the same shall be celebrated, in all time coming conform to use and wont.”

The pursuer made the following averment in Cond. 5:—“As already stated, from a very early period in the history of the parish, the burgh of Dunbar furnished the communion elements, for which the minister of the parish would otherwise have had a legal claim against the whole heritors of the parish. In implement of their obligation, the magistrates and town-council of the burgh, for time immemorial, and until the year 1866, have been in use to furnish to the predecessors in office of the pursuer, and to the pursuer as minister of the said parish, annually, twenty-two loaves of bread and six dozen bottles of wine, and this was the supply established by use and wont as referred to in the decreets of modification, &c., above specified.” The decree of modification of the stipend of the parish, pronounced in 1618, contained the following narrative:—“Compeared personally in presence of the saids Commissioners Mr John Atchisone, provest of Dunbar, for himself as provest thereof and in name and behalf of the toun-councill and comunittee of the said burgh, and declared that the toun of Dunbar had been in use in time bygone to furnish and provide the elements to the celebratione of the communione at the said kirk, and in name of the said toun declared that they were yet content and consented to furnish the samen in time coming, and stand oblidged and asstricted thereintill for relief and exoneratione of the minister present and to come at the said kirk thereanent.”

The said decree contained the following decerniture:—“And sicklike the saids commissioners in respect of the consent and declaratione of the said Mr John Atchisone, provest of Dunbar (c)written, Finds and Declares that the provest, baillies, councill, and comunittee of the toun of Dunbar (c)mentioned are and shall be oblidged, so oft as the communione shall happen to be celebrat thereat in all times hereafter coming to furnish the elements to the celebratione of the communione at the said kirk.”

Another decree of modification was pronounced in 1767, in which the Lords “find and declare, that the provost, bailies, council, and community of the town of Dunbar are and shall be obliged to furnish the elements to the celebration of the communion at the said kirk, so oft as the same shall happen to be celebrate thereat, in all time coming, conform to use and wont.”

In like manner, in a decree of modification obtained in 1832, the Lords “found and hereby find that the provost, bailies, and community of the burgh of Dunbar shall be obliged to furnish the elements for the communion at the said kirk as often as the same shall be celebrated, in all time coming; conform to use and wont.”

The last decree of modification was pronounced in 1861, but the only reference in it to the communion elements was the following parenthetical clause:—“The communion element money being paid by the burgh of Dunbar.”

The Lord Ordinary ( Jerviswoode) allowed a proof of the pursuer's averments in Cond. 5, and thereafter pronounced the following interlocutor:— Edinburgh, 4 th December 1868.—The Lord Ordinary having heard counsel, and made avizandum, and considered the proof led before him, with the record and whole process, Finds that the defenders have for forty years, and time immemorial, furnished the bread and wine required on the occasions of the celebration, of the communion in the parish church of Dunbar; and that the defenders have at the same time and for a like period furnished to the then minister of the parish certain quantities of bread and wine, which were not required or intended for use in the said church at the celebration of the communion on the occasions foresaid, and which were in fact otherwise applied: Finds, as matter of law, that under the terms of the decreet of locality, which is set forth in the 2d and 3d heads of the revised condescendence for the pursuer, the obligation thereby imposed on the provost, bailies, council, and community of Dunbar, to furnish the communion elements in all time coming, does not import an obligation to provide the full and specific quantities of bread and wine which are set forth in the conclusions of the summons, and that the said obligation is satisfied and fulfilled by the provision by the defenders of the bread and wine of the kind usual, and full quantity actually required for the due celebration of the communion; and, with reference to the preceding finding, sustains the defences, dismisses the action, and decerns: Finds the pursuer liable to the defenders in expenses, of which allows an account to be lodged, and remits the same to the auditor to tax and to report.

Note.—The Lord Ordinary has dealt with and disposed of this action with much reluctance. But, as respects the merits of the question, he has become satisfied, especially since he heard and has considered the evidence, that the ‘use and wont’ to which the decree of the Teind Court makes

Page: 383↓

reference, has relation only to the constitution and subsistence of the obligation itself to furnish the communion elements, and not in any respect to the precise mode in which that obligation was to be fulfilled. Therefore, as it appears to the Lord Ordinary, if the Town-Council do truly and fully provide the elements required for the due celebration of the communion, their obligation is discharged, and the terms of the decree satisfied.

“It cannot, in the Lord Ordinary's opinion, be relevantly alleged that the provision for the communion was in truth meant to cover other expenses which are indirectly connected with its celebration.”

The pursuer reclaimed.

Gifford and Shand ( Marshall with them) were heard for him.

Burnet ( Millar, Q.C., with him) for the defenders.

The Court adhered.

 Judgment:

Lord Cowan regretted that this action had been brought, and that the Court was compelled to decide the question betwixt the parties. The action was for a civil debt, and the question was, what was the defenders’ obligation? He could not interpret the expression “use and wont” as having any reference to the quantities of bread and wine. The meaning was, that the defenders were to furnish the elements, as they had been in use to do, so often as the constituted authorities appointed the communion to be celebrated; and he could not doubt that if it were appointed to take place four times in each year instead of twice as at present, or once, as was formerly the case, the defenders would be bound to furnish the elements on each occasion. In this view, the effect of the pursuer's contention might be to restrict the obligation of the Magistrates.

Lord Benholme thought that the obligation was not constituted by the decree of the Teind Court, although undoubtedly it contained evidence of what the Magistrates had bound themselves to do. The question was, Does the obligation mean the elements which shall be necessary, or has it assumed the stereotyped form of six dozen of wine? Such stereotyping mighty operate very hardly on the minister, because at some subsequent time he might be confined to six dozen when he required twice as much. It was said that the minister was entitled to wine for the purposes of hospitality at the manse. That he could not assent to.

Lord Neaves concurred. He had no doubt this was a civil claim constituted on a civil obligation not regulated by the Teind Court, or on the principles of that Court. The Court of Teinds had no power to pronounce a decree against the Magistrates, but what passed at the time is recorded in the decree. Now, what was the obligation? It was not pecuniary but specific—to furnish the elements in forma specifica. That was an obligation which was originally incumbent on the parson. Afterwards the duty was imposed on the heritors; but, as they often consisted of a number of persons, it became the practice for the heritors to pay to the parson a certain sum of money in name of communion elements, and when this was done the minister was entitled to the full sum of money, although the expense of the elements was less. In this case the duty is undertaken by the Magistrates. It was vain to say that use and wont was to regulate the amount. These words were inserted in order to show how it came to be the case that the Magistrates were to furnish the elements.

They had been in use to do so. No prescription can affect the matter. Where the minister receives an allowance from the heritors, and furnishes the elements, he may make a profit. This pursuer wants to make the same profit, although he does not, but there is no warrant for his doing so.

The Lord Justice-Clerk agreed that this was a personal obligation between the Magistrates and the clergyman. In construing it the Court is not to be referred to the practice of the Teind Court two hundred years after 1618, when it was constituted. Before 1618 it was a common thing to modify a stipend without an allowance for communion elements, and the minister was bound to furnish them as often as the sacrament was dispensed. The obligation was necessarily a fluctuating one, and the question was, whether its character had been altered to the effect of fixing the quantities to be furnished? He was clear that it had not.

 Counsel:

Agents for Pursuer— Mackenzie, Innes & Logan, W.S.

Agents for Defenders— J. & J. Milligan, S.S.C.

 1866

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URL: http://www.bailii.org/scot/cases/ScotCS/1868/06SLR0381.html