Scottish Court of Session Decisions

This was an action brought by Mr Latta, S.S.C., trustee on the sequestrated estate of the Rev. E. W. Fraser, minister of the parish church of St John's, Edinburgh, who died on 10th September 1876, against the Edinburgh Ecclesiastical Commissioners, for payment of £300, being a half-year's stipend said to be due to Mr Fraser by the defenders at the term of Michaelmas succeeding his death, for the period from the Whitsunday preceding. It was averred that Mr Fraser had a stipend or salary at £600 per annum, payable by the defenders in terms of the Acts 23 and 24 Victoria, chapter 50, and 33 and 34 Victoria, chapter 87, in equal portions, at the terms of Candlemas and Whitsunday yearly. By the 16th section of the first-mentioned Act it was, inter alia, provided that the portion of the stipend or salary payable at the term of Candlemas should be for the period from Whitsunday to Michaelmas preceding, and that the portion of the stipend or salary payable at the term of Whitsunday should be for the period from Michaelmas to Whitsunday, and a similar provision was contained in section 25 of the Act 33 and 34 Victoria, chapter 87. Besides pleading his title to the whole sum, the pursuer pleaded—“(3) In any view, the said Rev. R. W. Fraser having survived the term of Whitsunday 1876, was entitled under the Apportionment Acts to a proportion of the salary due at Michaelmas 1876 corresponding to the period which elapsed between the said term of Whitsunday and the date of his death, and the pursuer, as trustee foresaid, and in virtue of the assignations founded on, is entitled to payment of this sum, with interest.”

The defenders, inter alia, pleaded in answer—“(3) Mr Fraser having died during the period between Whitsunday and Michaelmas 1876, the stipend for that period payable at Candlemas 1877 has vested in and belongs to the widow and

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children of the deceased as annat, in terms of the Act 1672, cap. 13. (4) The Apportionment Acts do not apply to the sum sued for, in respect, 1st, that the said Acts do not apply to stipend or annat, and 2d, that their application is excluded by the terms of the Act 33 and 34 Vict. cap. 87. (5) The said half-year's stipend never having been in bonis of Mr Fraser, and not having been assignable by him or affectable by his debts, the defenders are entitled to be assoilzied, with expenses.”

The question between the parties came finally to be solely as to whether the Apportionment Act applied or not.

The Lord Ordinary ( Curriehill) held that it did, and gave decree in favour of the pursuer for the proportion due to Mr Fraser. His Lordship added this note to his interlocutor:—

“ Note.—The Rev. Robert William Fraser, minister of the parochial church of St John's, in the city of Edinburgh, died on 10th September 1876. His estates had some years before his death been sequestrated under the Bankrupt Statutes, and the pursuer is trustee in the sequestration, and, as assignee of Mr Fraser, now sues the defenders, the Edinburgh Ecclesiastical Commissioners, for payment of the sum of £300 sterling, as being the portion of Mr Fraser's stipend or salary due for the period from Whitsunday to Michaelmas 1876, and payable by the defenders at Candlemas 1877;' and he claims, alternatively, in virtue of the Apportionment Act 1870, a part of said stipend corresponding to the number of days during which Mr Fraser survived Whitsunday. The defenders, the Ecclesiastical Commissioners, who, under various Acts of Parliament, are the administrators of the fund provided by law for payment of the stipend of the parochial clergy in Edinburgh, resist payment (1) on the ground that Mr Fraser having predeceased Michaelmas 1876, had right only to the first half of the stipend for crop and year 1876, which was the half payable at Whitsunday 1876, and that he duly received payment thereof; and (2) on the ground that the Apportionment Acts do not apply to the stipend in question. The questions thus raised are important as regards the city clergy, and they are by no means free of difficulty.

Apart from the question of apportionment, there would have been no difficulty in the case if Mr Fraser had been minister of any of the ordinary parishes of Scotland, or if the stipends of the Edinburgh city ministers had continued to be provided under the Act 1661, c. 265. The law as to the vesting of the stipends of all ministers was declared and fixed by the Act 1672, c. 13, which enacted—‘The ann shall be an half-year's rent of the benefice or stipend over and above what is due to the defunct for his incumbency, which is now settled to be thus, viz., if the incumbent survive Whitsunday there shall belong to them for their incumbency the half of that year's stipend or benefice, and for the ann the other half; and if the incumbent survive Michaelmas he shall have right to that whole year's rent for his incumbency, and for his ann shall have the half-year's rent of the following year, and that the executors shall have right thereto without necessity or expenses of a confirmation.’ Mr Fraser therefore having survived Whitsunday, and died before Michaelmas 1876, he would have had right to the first half of the stipend for that year, but would have had no right to the second half, which would have belonged to his executors as their ann. So far the parties are at one; and I understand that neither of them maintains that by the recent legislation, to be immediately noticed, the right of the executors to ann—that is, to half a-year's stipend over and above what is due to the minister for his incumbency—has been taken away. The question upon which they differ rather is, whether by the recent statutes the regulations of the Act 1672, c. 13, as to the vesting of the stipend, have been altered? Before attempting to answer this question, it is desirable to ascertain the manner in which the stipends of the Edinburgh ministers were paid prior to the year 1860. The necessary information is contained in the Statute 1661, c. 265, and in the minutes lodged for the parties respectively, with relative productions, after the debate on 17th March.

The stipends of the Edinburgh city ministers have not for many centuries been paid either out of teinds or out of the common good of the burgh. For many years before 1661 they appear to have been paid out of an annual assessment or annuity imposed by the inhabitants on themselves. This practice was approved and confirmed by the Legislature in the year 1661; and by c. 265 of the Statute of that year, which was passed on 6th June, it was enacted that the yearly stipends of six of the ministers of the burgh should be imposed upon and paid by the inhabitants, tenants, and occupiers of the several dwelling-houses, &c., in the burgh, at the rate of six per cent, of the rental. The assessment was to be paid to a collector quarterly, ‘each three months advanced, the first quarter's payment beginning 1st of February last.’ The annuity was to be collected by the deacons of the churches or by a collector to be appointed by the Magistrates and Council in their option. This tax, which was generally known as the Annuity Tax, was extended and re-imposed by various statutes passed from time to time, until it was abolished by the Act 23 and 24 Viet. cap. 50 (1860). It would thus appear that the stipends of the ministers of Edinburgh payable out of the Annuity Tax were by the statute imposing the tax made payable quarterly—It Candlemas, Whitsunday, Lammas, and Martinmas. In practice, however, the stipends were, at all events during the eighteenth century, paid in equal proportions half-yearly at Candlemas and Lammas, the Candlemas payment being regarded as the stipend for the half-year ending at Martinmas preceding, and the Lammas payment for the half-year ending at Whitsunday preceding, the minister being entitled to the Lammas payment if he survived the previous Whitsunday, and to the Candlemas payment if he survived the previous Michaelmas. The sum paid at Lammas annually was thus the half of that year's stipend which became legally due at Whitsunday; and the sum paid at Candlemas following was the other half of the same year's stipend. And at Lammas 1860 Mr Fraser received out of the produce of the Annuity Tax payment of the half of that year's stipend which had become legally due at Whitsunday 1860.

“Now, if this statement of the practice under the old law be kept in view in reading the Act 23 and 24 Victoria, c. 50, which was passed in July 1860, and by which the Annuity Tax was abolished as from and after Whitsunday 1860, much of the

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difficulty attending the case will disappear. By the 16th section of that Act the Ecclesiastical Commissioners were directed, out of the monies received by them under the provisions of the Act, ‘to make payment, in two equal portions, at the terms of Candlemas and Whitsunday 18G1, and annually thereafter, to each of the ministers for the time being of the parochial churches of the said city after mentioned, or to any person duly authorised to receive the same on behalf of the said ministers, a stipend or salary of £600 per annum,’ …‘provided that the portion of the said salaries or stipends to be paid at the term of Candlemas shall be for the period from Whitsunday to Michaelmas preceding, and the portion to be paid at the term of Whitsunday shall be for the period from Michaelmas to Whitsunday; and such payments shall be in lieu of and shall include all claims for stipend or salary for the said periods respectively competent at law, and shall be subject to the whole conditions applicable by law to the stipends or salaries now payable to the ministers of Edinburgh from the produce of the said Annuity Tax.’ The stipends presently payable to the ministers are regulated by the later Act, 33 and 34 Victoria, cap. 87(1870), but the enactments regarding these termly payments (sect. 25, sub-section 4) are expressed in precisely the same manner as in the Act of 1860. So that the determination of the present question really turns upon the construction of the earlier Act. At the date when that Act was passed (23d July 1860), Mr Fraser and the other ministers of Edinburgh were each about to receive within a few days (viz., at the term of Lammas), out of the produce of the old Annuity Tax, payment of half a year's stipend, being, as I have shown, the half of that year's stipend legally due at Whitsunday 1860. And these payments were in point of fact made; and, in entire consistency therewith, the Act of1860 directed the first payment of £300 to be made to each of the ministers at the term of Candlemas 1861, as the portion of the stipend for the period from Whitsunday to Michaelmas1860, —that is to say, the second half of the stipend for the year 1860; and the second payment of £300, which was to be made at Whitsunday 1861, was to be for the period from Michaelmas 1860 to Whitsunday 1861, —that is to say, the first half of the stipend for the year 1861. That statute therefore made no change in the terms at which the stipend was to be paid, except by substituting Whitsunday for Lammas as the term of payment of the first half of each year's stipend; but instead of each payment being for half a year, as had been the former practice, the Whitsunday payment was to be for the period from Michaelmas to Whitsunday, and the Candlemas payment for the period from Whitsunday to Michaelmas, thus making the periods for which the payments were to be made correspond to the legal terms of vesting of the stipend as fixed by the Act 1672, c. 13.

The next question is, —Whether under this Act a minister who dies between Whitsunday and Michaelmas has any vested right in the proportion of the stipend payable at Candlemas? It appears to me that, as stipends under the Acts of 1860 and 1870 are to be subject to the whole conditions applicable by law to the stipends payable to the ministers under the old Annuity Tax, the law as to the vesting of the stipends remains unchanged by these statutes, and a minister who dies after Whitsunday, but before Michaelmas, has, unless the Apportionment Acts apply to such a case, no right to any part of the stipend payable at Candlemas following.

The application of the Apportionment Act, however, which is the only remaining point in dispute between the parties, appears to me to be unquestionable. The Apportionment Act of 1870 provides (sect. 2) that ‘all rents, annuities, dividends, and other periodical payments in the nature of income (whether reserved or made payable under an instrument in writing or otherwise) shall, like interest on money lent, be considered as accruing from day to day, and shall be apportionable in respect of time accordingly;’ and sec. 5 declares that the word ‘annuities’ includes ‘salaries and pensions.’ Now, the Acts both of 1860 and of 1870, under which the periodical payments are made to the ministers of Edinburgh, expressly design these payments as ‘stipends or salaries.’ It is therefore beyond doubt that the salary of £300 which was accruing for the period between Whitsunday and Michaelmas was apportionable; that Mr Fraser was at his death entitled to a part of that salary or stipend in proportion to the part of the period from Whitsunday to Michaelmas during which he survived; and that the same now belongs to the pursuer as assignee of Mr Fraser, and as trustee on his sequestrated estate.

It was maintained for the defenders that all parties interested were not called, and that the widow and children of Mr Fraser should have been made parties to the action, in respect that the salary sued for belonged to them as ann. Intimation of the dependence of the action was made to the widow and children, but they did not enter appearance. But I do not think that they are necessary parties to the present action. They are admittedly entitled to one half-year's stipend as ann over and above what Mr Fraser was entitled to in respect of his incumbency; and whatever may be the ultimate judgment in this case in the event of my interlocutor being taken to review, the right of the widow and children to their ann cannot be thereby affected.

Expenses have been given to the pursuer, but subject to modification, because he has failed on his main ground of action, viz., that the stipend sued for was the first half of the stipend for 1876, and had vested in Mr Fraser by his having survived Whitsunday. He has succeeded only in his alternative plea, added at the adjustment of the record, that he was entitled to a proportion of the stipend in virtue of the Apportionment Acts.”

The defenders reclaimed, and argued—The Act of 1672, c. 13, excluded the application of the Apportionment Act. By the preamble and seventh section of the latter Act it was manifest that any special stipulation, either statutory or by agreement of parties, could so exclude it— Tyrrell v. Clark, 23 L. J., Ch. 283; Tracy v. Corkran, January 31, 1874, 8 Irish Rep., C.L. 40. The right of the widow and children to the ann or stipend of the half-year during the currency of which a minister died, was familiar to our law, and must not be defeated. If the Apportionment Act applied, it would be defeated, for they would lose so much of the current half-year as was due to the

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minister in his own right. Further, they had no good claim to any stipend falling due after the expiry of that half-year. The Act 1672, c. 13, gave them the half-year's, not a half-year's rent.

The pursuer answered—The rights of the widow were not intended to be attacked. The ann would be hers as before, but would start from a different point, viz., where the minister's own earnings stopped. These must be held to run on so long as he lived. The whole question came to be—Would the Apportionment Act and the Act 1672 stand together? It could not be said that they did not, for the only object of the Act 1672 was to settle what the amount of the ann should be, and it settled it as a half-year's rent. It was not sought to interfere with that.

At advising—