Scottish Court of Session Decisions

The Rev. William Malcolm Imrie, minister of the parish of Penicuik, applied in 1886 to the Presbytery of Dalkeith to sanction the appointment of an assistant and successor to him in consequence of his being unable on account of infirmity to discharge the duties of minister of the parish. The Presbytery agreed to Mr Imrie's request, and the Rev. Peter Dow was upon 3d August 1886 appointed assistant and successor to him. In connection with this arrangement an agreement was entered into between Mr Imrie as the first party, and Mr Dow as the second party, dated 30th July and 3d August 1886, which provided as follows—“The parties hereto considering that on or about the 26th of December 1885 the said party of the first part, in consequence of ill health, found it necessary to retire from the active duties of minister of the parish of Penicuik, and that he had agreed to surrender to an assistant and successor a certain sum of money per annum, as after specified, which said agreement was thereafter sanctioned and approved of by the Presbytery of Dalkeith,—therefore the parties have agreed, and hereby agree as follows, videlicet:— First, The said first party agrees (1) to surrender to the said second party the sum of £8, 6S. 8d. sterling, being the allowance for communion elements, and the sum of £165 sterling of the annual income derivable from the benefice of said parish, payable half-yearly at the terms of Martinmas and Whitsunday from and after the 3d day of August 1886, being the date at which the said second party is to enter upon the duties of assistant and successor, beginning the first term's payment thereof at Martinmas next for the proportion to fall due from the said 3d day of August 1886 to that term, and the next term's payment thereof at Whitsunday thereafter for the half-year immediately preceding, and so forth half-yearly, termly, and continually thereafter during the lifetime of the said Peter Dow, so long as he shall be the said first party's assistant;

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and (2) to give up the manse and offices for the use and behoof of the said second party, on condition that he, the said second party, shall pay all taxes and other assessments exigible in respect of the manse and offices. Second, The said second party, in consideration of the premises, agrees to relieve the said first party of the duties of pastor of the parish of Penicuik.”

Mr Imrie continued to be minister of the parish notwithstanding the agreement. The stipend of the parish was due at Whitsunday and Martinmas, but was collected half-yearly at Whitsunday and Martinmas, and subsequent to the date of the above mentioned agreement it was collected at Martinmas 1886 by Mr Imrie's agent, who at that date paid Mr Dow the proportion of the sum of £165 then due effeiring to the period from the date of his induction to the term of Martinmas 1886.

Mr Imrie died unmarried on 29th April 1887, and as he died prior to the term of Whitsunday the stipend for the second half of crop and year 1886 passed as annat to his next-of-kin. A question then arose between Mr Dow and Mr Imrie's executor as to whether any sum was due to the former under the agreement in addition to what had been already paid to him as above mentioned. Mr Dow claimed a proportion of the sum of £165 corresponding to the period from 11th November 1886 to 29th April 1887 (the date of Mr Imrie's death), which proportion was admitted to be £76, 8s. under deduction of income-tax.

This Special Case for the opinion and judgment of the Court was accordingly presented, to which the Rev. Peter Dow was the party of the first part, and the Rev. David Imrie, executor of the deceased Revd. William Imrie, the party of the second part.

It was agreed between the parties that the income of the benefice was £314. Mr Dow maintained that he was entitled to a fixed sum of money from Mr Imrie during “the lifetime of the said Peter Dow so long as he shall be the said first party's” (Mr Imrie's) “assistant”; that on a sound construction of the minute of agreement, what Mr Imrie agreed to “surrender” was “a certain sum of money per annum,” and not the stipend of the parish, and that the word “surrender” in the first article of the said minute of agreement imported an obligation upon Mr Imrie to pay; that the sum to be paid to Mr Dow was not to be so paid when the stipend became due, but at the terms of Whitsunday and Martinmas; that Mr Imrie paid to Mr Dow the proportion of the sum due to him up till Martinmas 1886 from the 3d August preceding, whilst Mr Imrie had only in point of fact received stipend up till Michaelmas 1886; that no part of the stipend of the parish was ever conveyed by Mr Imrie to Mr Dow; that Mr Dow did not draw from the heritors any part of it, but Mr Imrie during his lifetime drew the whole of it without asking or obtaining the consent of Mr Dow; and that as a condition of Mr Imrie drawing the whole of the said stipend, he was bound either to discharge the duties of parish minister himself, or to provide and pay a substitute, if he were not able; and that Mr Dow having been the substitute appointed, he is entitled to be paid out of Mr Imrie's estate the sum stipulated in the said minute of agreement, exclusive of manse and offices.

The second party maintained that on a sound construction of the agreement, and as in a question between Mr Dow and Mr Imrie, the former took the place of the latter as regarded the manse and offices, the communion element money, and the stipend so far as surrendered; that in consequence of Mr Imrie's death in April, the stipend which would otherwise have been payable at Whitsunday 1887 having passed to Mr Imrie's next-of-kin as annat, there was no stipend to surrender for the period in question; and that there being no personal obligation on Mr Imrie, independently of the agreement to surrender part of the stipend, Mr Dow was not entitled to more than had been already paid to him.

The question submitted for the opinion and judgment of the Court was in these terms—“Is the late Mr Imrie's executor bound to pay out of the executry estate the foresaid sum of £76, 8s. to Mr Dow for services as Mr Imrie's assistant and successor between the term of Martinmas 1886 and the 29th April 1887, the date of Mr Imrie's death?”

Argued for the first party—The question was entirely one of contract, and fell to be regulated by the terms of the agreement. This was not the case of an assignation of stipend, and there was no intimation of an assignation. It was the ease of a surrender of a sum of money out of the stipend. It was a payment out of the annual income of the benefice, and it was of importance in the case to notice that there had been drawn in name of stipend more than sufficient to meet the present claim

Argued for the second party—There was no express personal obligation upon the minster or his heirs to pay the money, and clearly the first party could not have gone to the heritors with this agreement and demanded payment of his salary from them. The ann was carried away by statute, and was never in bonis of the deceased. Had the first party been minister of the parish he could not have made good his present claim, and it was anomalous to say that he was in a more favourable position for pressing it by being assistant and successor.

Authorities— Latta v. Edinburgh Ecclesiastical Commissioners, Nov. 30, 1877, 5 R. 266.

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