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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Stewart v Lord Glenlyon [1835] CA 13_787 (20 May 1835) URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0787.html Cite as: [1835] CA 13_787 |
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Subject_Stipend—Church—Glebe.—
1. Held by the whole Court that a glebe of uncommon extent and value is to be taken into consideration in modifying a stipend out of the teinds. 2. This rule applied, where a clergyman possessed, as glebe, lands which yielded a rent of £80, besides leaving ground in his own occupation which he estimated to be worth £15 per annum.
The Reverend John Stewart, minister of the parish of Blair-Atholl, raised a process of augmentation against Lord Glenlyon and the other heritors. He stated that the parish was originally composed of the four parishes of Blair, Lude, Strowan, and Kilmaveonaig; that the glebes of Lude and Kilmaveonaig yielded a rental of £21, 10s.; and that the united glebe of Blair and Strowan having been situated formerly in the front of Blair Castle, one of the Dukes of Atholl gave valuable ground for it, by excambion, about seventy years ago; that the excambion was regularly conducted under the authority of the Presbytery, and the land so excambed was since held by the minister as glebe; that the rent derived by him from this glebe was about £59, besides which, a portion of it was left in his own hands, worth £15 yearly. He stated, that, in consequence of the excambion, the minister had been removed to a distance of two miles from the church or parish school, thereby rendering his duties more laborious, and putting him to the cost of private tuition in his family. He also insisted on the usual topics of the size of the parish, &c. In 1813, the stipend had been fixed at six chalders of victual, half meal and half barley, with £52, 10s. 4
Lord Glenlyon, the chief heritor, objected, that, as the minister admitted the receipt of a rent of £80 for his glebe land, besides keeping land valued at £15 to himself, the Court should take this into account in awarding the augmentation; and his Lordship contended, that, if they did so, the modification asked ought not to be allowed. The minister answered, that the Court had already repeatedly enforced the general principle, that a proper glebe, whatever might be its size, could not be taken in computo in estimating the just amount of an augmentation to a stipend; and that, in this special case, the plea of Lord Glenlyon was urged in bad faith, as he represented the party who had given the tract of ground in excambion for the glebe which lay in front of Blair Castle, and, if his Lordship was
The Court directed a hearing in presence of all the Judges on the question, whether it was competent to take into account the excess of value of the glebe in modifying the amount of augmentation.
Dean of Faculty for the pursuer—
It was part of the public policy of Scotland, that ministers should have a right to maintenance out of the teinds; and unless the manse and glebe could be shown to have been held as equivalent to a proportion of the maintenance thus due to the minister, or, in other words, to so much stipend, it would be contrary to principle to introduce any such rule now for the first time. But, on looking either to the statutes relative to the glebe and the stipend, or to the practice under the old commissions, or to the decisions, it appeared that the benefit of residence or mansio (including manse and glebe), was an advantage belonging to the benefice in all cases; a pertinent of the benefice which was not taken into account in fixing the amount of stipend to be paid to the minister. It was therefore incompetent now to take the value of either manse or glebe into computation in fixing the stipend.
Mansio was held by all our writers to include both house and ground for the minister serving the cure. It was originally a burden on the parson and vicar, as appears from canon xiii of the Provincial Councils, held at Perth in the thirteenth century, as collected by Hailes.
Before the Reformation, the manse and glebe formed no burden on the heritors. After the Reformation, the first notice of the glebe occurred in the statutes 1563, c. 72, and in 1572, c. 48, which latter was passed for the purpose of explaining and enforcing the former. The two statutes, when taken together, were extremely important in their bearing on the present question. The first was passed to remedy the grievance of feus or long tacks of manses and glebes having been granted, “quhairthrow there is na sufficient dwelling-place for them that serves and suld serve and minister at the kirkes to remaine thereat.” The statute therefore provides that the parties appointed to minister at a kirk, shall “have the principal manse of the person or vicar, or sa meikle thereof as sall be fandin sufficient for staiking of them, &c. quhidder the saidis glebes be set in few or tack of before, or not: Or that ane reasonable and sufficient house be bigged, &c.; and further sa meikle land to be annexed to the saidis dwelling-places of them, that servis and ministeris at the kirk, as sall be hereafter with gude advisement appointed.” The statute 1572, c. 48, recites the first statute, and then declares “that the manses, either pertaining to the persone or vicar, maist ewest to the kirk, and maist
Though this statute contained a provision as to the minimum to be allotted to the minister, it did not impose any limit as to the maximum; and accordingly it was a very common case that the glebe exceeded the amount of four acres. But to whatever extent a glebe was designed, the statute provided the means of summarily ejecting the occupants, and treated as utterly illegal all the feus or tacks of such ground, which might have been granted by Popish incumbents after the abolition of Popery. The land so assigned to the minister was taken out of the glebe, part of the proper temporality of the benefice which was attached to the cure before the Reformation, and was not derived from the heritors.
In the statute 1587, c. 29, annexing the temporality of benefices to the crown, there was an express exception of “all and quhat-sumever mansiones of personages and vicarages annexed to paroche kirkes with four aikers of glebe, maist ewest to the kirk and commodious for the minister, serving the cure thereof, for his better residence thereat, &c.”
By 1593, c. 165, a right was conferred on ministers to get a glebe designed out of any kirk lands in the parish, whether they had passed into the hands of laymen, or remained in the hands of beneficed clergymen.
By 1594, c. 202, relief was given to the proprietor of kirklands, which were designed for a glebe, by virtue of which he was entitled to go against the proprietors of other kirklands within the parish. By 1612, c. 8, the burden of maintaining the manse or residence was imposed on the clergyman himself.
It was in this position that the right to a manse and glebe stood, when the first statute was passed (1617, c. 3), which gave a right of stipend to the minister out of the teinds.
The statute 1644, c. 31, for the first time recognised the right of the minister to have a glebe designed, where there was previously no glebe and no kirk lands in the parish. This was one of the rescinded acts.
On examining the phraseology of these statutes, they lead irresistibly to the conclusion that the house and glebe, given to the minister serving the cure, and not taken from the heritors at all, were given as an adjunct generally to all benefices having the cure of souls, and as coming from the Popish to the Protestant incumbent.
Then the statute 1663, c. 21, was passed, which, for the better provision, of ministers, ordained that every minister “should have grass for one horse and two kine, over and above their glebe.” In the cases
Now, turning back to the period when the first statute gave a right of maintenance out of the teinds to a minister, it appears that the statutes gave the glebe as a perfectly separate endowment, which was not to be taken into account even in fixing the minimum of maintenance due to a minister. By 1617, c. 3, it was provided that “the least and meanest stipend” to be provided by the commissioners of teinds to any minister, was not to be under “five chalders of victual, or five hundred marks of money,” &c. “by and attour their manse and glebe.” The greatest stipend was not to exceed ten chalders of victual, or one thousand marks, “by and attour their manse and glebe.” In both cases alike, whether the stipend was of the largest or the smallest class, it was to be equally provided, “by and attour the manse and glebe.” See also 1621, c. 5.
Upon 30th March, 1627, one of the acts of the lords commissioners, whose proceedings were afterwards ratified by Parliament, was in these terms: “The lords ordain the lowest minister's stipend to be eight chalders of victual, or proportional in silver duties.”—2 Connell, 78. No. 41, App. (2 d Edit.) In ordaining this provision, it was again made without the least reference to the glebe, and altogether independently of it or the manse.
In like manner, the rescinded act 1649, c. 45, revived by 1663, c. 21, made a provision, as already noticed, which was by and attour the glebe. The same principle was followed in 1663, c. 28, and 1690, c. 30. The enactments of 50 Geo. III. c. 84, the small stipend act, also afford strong evidence that the stipend is always viewed independently of the size of the glebe. The object of that act was to provide a decent maintenance for a minister. Therefore, in considering what addition should be made to a party having only a stipend of perhaps £110, or £120, the size of the glebe would have been just the most natural and proper element for the legislature to have taken into consideration, if it was ever to be viewed as entering into that question. But the act declares generally, that wherever the stipend out of the teinds falls short of £150, then the minister is to have right to draw a sum equal to the deficiency, without
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1 Beaton, Feb. 8, 1734,
Elchies v. Glebe; Dundas, Dec. 6, 1805,
Dict. v. Glebe, App. No. 5, and case subjoined in note; 2. Ersk. 10. 62; 2. Bankt. 8. 124.
In other statutes (1661, c. 61, and 1663, c. 28), having special reference to the maintenance of the clergy, and giving powers to the Commissioners of Teinds for that end, there is still no reference whatever made to their maintenance as depending in part upon the glebe. In 1663, c. 28, power is given, “where ministers are not already sufficiently provided, or have not localities assigned to them for their stipends, out of the teinds within the parish where they serve the cure, to modify, settle, and appoint constant local stipends to ilk minister out of the teinds,” &c.
The practice of the Court had been conformable to the directions of the statutes; and although every relevant circumstance was generally stated in opposing an augmentation, the size of the glebe was not one of these, as it must frequently have been, if admissible. *
If the Court were to consider the excess of glebe in one case, they must do so in all. And what was the excess, unless the Court were to take always the minimum to be, in this question, the true amount? Then the Court would have to make an estimate in every case by itself, and deduct a chalder, or chalders, and even parts of chalders, in respect of the size of the glebe.
But farther, if, on the one hand, the Court took glebes into account at first augmenting, then such glebes have already received all the effect due to them as in a question of augmentation, and might be thrown out of view in ulterior augmentations; and if, on the other hand, the Court have hitherto refused to take glebes into account, they should not introduce a new rule now.
Glebes have often been improved by the minister. Heritors could lead a valuation, and the benefit of all subsequent improvement would accrue to themselves. But the minister could not lead a valuation; and the improvement of his glebe, though inferring expense to him, would benefit neither him nor his successor, if it caused a proportional deduction from all subsequent augmentations. This, however, was unjust and impolitic.
Suppose there was workable coal in a glebe; and that it could be taken out, sold, and the capital set aside, bearing interest in favour of the incumbent, so as to add £50 per annum to his income: Would the Court take this into view at awarding an augmentation? And if so, then would
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* The Dean was understood to refer to the case of Loch Broom, in the middle of last century, and the case of Cairnie and Boteray, in 1720, in illustration of this.
In recent cases, parties had always admitted that a mortification was on a different footing, and that it was only the glebe proper which ought to be taken into the account. Yet why so? If the Court were to go beyond the provision out of the teinds, and look at other sources of maintenance possessed by a minister, so as merely on the whole to see that he was in one way or another adequately provided, why should they not take a mortified fund also into account? It equally served for maintenance, go far as it went. But if such a plea, as to a mortified fund, was confessedly untenable, so must be the plea which was set up here, since the excessive size of the glebe arose out of a special contract with an individual heritor, the Duke of Athol. If a donation by an individual was given up as untenable, so must the gain arising from such a source as this.
In regard to the precedents, the recent judgments in the case of St Madox, in 1818, and Beith, in 1822, were expressly in favour of the pursuer's argument. They were both strong instances, and, though not reported, it was clear from the circumstances that they necessarily involved the point now under discussion. In the case of St Madox, the heritor, in presenting a reclaiming petition against a judgment, which modified fourteen chalders, made the following pointed statement. The parish “is not only the easiest charge within the presbytery where it is situated, but the easiest charge in the whole kingdom. Its extent is just one mile square, and the population, according to the last returns, consists of 312 persons. In the course of a forenoon, the minister can easily walk over the whole parish, and visit every inhabitant in it. As a cheap and comfortable place of residence, it can hardly be equalled.”—“But the circumstance to which the petitioner wishes principally to direct the attention of the Court is, the extent of the minister's glebe. It consists, according to a measurement which is entered in the books of the presbytery, of twenty-three acres, two roods, and thirty-six falls. It lies contiguous to the manse, and is composed of the richest ground in the parish. From the rent of that which is in its immediate vicinity, the petitioner is well warranted in saying that the minister might at any time let it at £150 a-year.”
The minister of St Madox, in his answers, referred to a train of precedents for disregarding the size of a glebe. He stated that the Court, in 1812, “gave to the minister of Stair fourteen chalders, although the parish is small, and the glebe is thirty-two and a half acres, which was founded on without effect in bar of augmentation. The minister of Langholm got lately fifteen chalders, though the glebe is fifty acres. In the
The Court refused the heritor's petition, with expenses.
And, in the subsequent case of Beith, which was also a very strong one, the glebe being worth £150 per annum, besides an ordinary glebe, the heritors, in a reclaiming petition, admitted the Court to have expressed themselves so decidedly as to the incompetency of referring to the size of the glebe, that they declared they would not resume that point even when calling for an alteration upon other grounds.
In regard to the case of Wilton, in 1827, 1 it was quite peculiar in its circumstances, and the land was not proved to have been proper glebe.
Having reference, therefore, to the statutes, and to the practice of the Court, and its decisions, it was submitted that the glebe, whatever might be its size or value, must be laid out of view by the Court, in modifying the amount of an augmentation of stipend out of the teinds.
Keay for the defender—
Where the excessive size of a glebe is pleaded as an absolute bar to a process of augmentation, that plea has been repelled; but it is discretionary with the Court to consider the effect due to the circumstance, in modifying the amount of augmentation; and this distinction would reconcile the apparently conflicting decisions upon this subject.
No part of the land now in question consisted of a donation from any pious individual, so as to raise the point, whether the Court were entitled to defeat the presumed will of the donor, in awarding a smaller amount of augmentation to the minister, in consequence of the existence of such a provision. But even in that case, it was not free from doubt, whether the Court was not entitled to take the circumstance into account, as appeared from the case of Allan, 2 and that of Wilson. 3
The land now in question was allodial, and part of the patrimony of the church. Its annual value was part of the permanent provision of the clergyman, and, as the Court were only entitled to lay upon the teinds, as a burden, so much as was necessary for the suitable provision of the clergyman, and no more, they were bound to take the value of an excessive glebe into account. This was necessary also with reference to the preservation of Presbyterian parity among ministers; a circumstance
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1 Teind Cases, (S. and D. 137).
2 January 23, 1811, (F. C.)
3 February 8, 1826, (S. & D.'s Teind Cases, p. 88).
In order to attain a correct estimate of what would be a suitable provision to the clergyman, the Court were always in the practice of taking into consideration such circumstances as the size, population, and locality of a parish; its vicinity to markets; its command of cheap food, or fuel; its being a presbytery seat, &c. But if the practice of the Court established the propriety of paying regard to all these circumstances, much more should the Court attend to a matter so directly entering into the suitable provision of the minister, as a large excess in the value of his glebe.
The minister had pleaded that the glebe was not taken from the heritors, and they had no right to found on it in an augmentation. But a question of augmentation truly lay between the minister and the titular, or the heritors deriving right to their teinds from the titular, who was just as much an owner of the teinds as heritors were owners of their land. His right of ownership was, no doubt, burdened with a suitable provision to the clergyman, but he was entitled to resist any farther burden; and the heritors deriving right from him, had an equal title to do so. If, therefore, the minister was otherwise adequately provided out of the patrimony of the church (and this glebe must be presumed to have been taken originally out of the temporality of the church), the heritors were entitled to object to the augmentation concluded for.
There was no authority for maintaining, that, in awarding augmentation, the Court must look to the teinds alone. And there was no ground for maintaining that any statute debarred the Court from considering the glebe. The only statutory provision which must be given without reference to the glebe, was that by 1663, c. 21, where grass for one horse and two kine was ordered to be designed “over and above the glebe.” As the words of the statute were imperative, the Court necessarily held themselves bound, whatever might be the size of the glebe, to award this grass. But that was on a quite different footing from any question of augmentation, where the Court are to award, at their discretion, a suitable provision. Glebes varied in value from £10 or £12 up to £95, in this instance, and even £200 in others. It was impossible, therefore, to lay this out of view, if the Court were really to award a suitable provision.
In the statutes 1617, c. 3, and 1621, c. 5, which appointed commissioners of teinds, with power to unite or disjoin parishes, it was expressly intrusted to the commissioners “to appoint and assign at their discretions a perpetual local stipend to the ministers present and to come,” &c. Now, as an unqualified discretion was given to them, it could scarcely be supposed that if these commissioners had then united all the four glebes of Blair, Lude, &c., into one, they would not have considered the
In regard to the practice of the Court, the previous augmentations of this same parish were substantially precedents in point. In 1796 the stipend modified was three chalders of victual and £56 sterling in money; in 1813, the modification was six chalders of victual, and £52, 10s. 4d. of money, which being converted into victual, made nine chalders and five bolls in all. If the new augmentation was to be at all proportioned to the preceding, the demand of sixteen chalders was a great deal too much, and the low amount of the previous modifications could only be accounted for on the principle that the Court had taken the size of the glebe into consideration, as no neighbouring parish was so low.
In regard to the case of Cairnie and Botaray, 1st June, 1720, it would appear, after consulting the record of the Teind Court, that there was but a short deliberation and discussion, and that the case did not necessarily imply that the Court had disregarded the glebe. In the Lochbroom case, where the glebe was of excessive size, the pleadings were brief, and the ground of the judgment of the Court did not appear. But in the case of Old
Thus the Court were neither precluded by statute nor by decisions from taking into account the excessive size or value of a glebe, and it was highly reasonable and expedient, as well as consistent with the due modification of suitable provisions in each respective case, that they should do so.
The maintenance of the clergy is a burden on the teinds alone, and I was much
_________________ Footnote _________________
1 November 23, 1808, (F. C).
2 S. and D.'s Teind Cases, p. 137.
In regard to the decisions I would invite special attention to that of St Madox. (His Lordship then read the passage from the heritor's pleading which has been previously quoted). Notwithstanding so strong and pointed a statement as this the Court appear to have disregarded the value of the glebe, for they refused the reclaiming petition, which was against an augmentation of fourteen chalders. The Court held that to be the fair stipend for such a cure, laying the extra value of the glebe out of view, and accordingly they modified that amount, and there were apparently strong precedents for such a course, which were adduced by the minister in answering the reclaiming petition.
Then there is the case of the parish of Beith, decided in 1822, the papers in which are now before me, and I well recollect that the extra size and value of the glebe was there pleaded as a ground for limiting the amount of augmentation to be awarded. One of the Earls of Eglinton, in 1734, had made an excambion with the minister of Beith, and the glebe farm thus acquired by the minister was said to have been at one time worth £200 per annum, and to be still worth £150, besides the full size of an ordinary glebe. And this last value the minister did not deny. Still the Court held, though the glebe was of about twice the value that it is in this case, that it should not be taken into account, and that seventeen chalders should be modified. The heritors reclaimed, and the tenor of their pleading deserves the attentive consideration of the Court. They admitted that, after the opinions which had been expressed, they would not again press on the Court the extra value of the glebe; and then they went on to state different grounds, comparing Beith with the neighbouring parishes, and throwing out of view the size of the glebe altogether. And then the Court, by a majority of one, reduced the augmentation to sixteen, but they did so upon grounds altogether separate from the size of the glebe.
From a deduction of the cases, therefore, and after the full argument which has been had in this cause, I am of opinion, that, wherever the land is a proper glebe, its unusual size or value cannot be taken into account, and that a suitable stipend should be modified, laying the glebe altogether out of view. And I would only add, that if we are to begin now and find that the extra size of the glebe must be taken in computo, it is difficult to see where we shall stop in the new field of enquiry in which we shall immediately find ourselves embarked.
If the decisions of the Court had been uniform on the point now submitted to our consideration, I would have considered it highly inexpedient ever to disturb
It is perfectly true that the proper and legal fund for the maintenance and support of the clergyman is the teinds of the parish. It is the fund over which the Court has the legitimate jurisdiction for that purpose, and such it has been the practice of the Court to exercise in a discretionary manner, paying a due regard to all the circumstances of each case, and having in view that equality which is the nature and spirit of our ecclesiastical establishment. There can be no doubt, therefore, that our law considered the teinds as the legal fund from which the maintenance of the clergy was to be taken.
The glebe being intended by the law to be a benefit to the minister, was bestowed for a quite different purpose. It never was intended as a source of revenue or pecuniary emolument, but solely for his private convenience and accommodation, and the various acts of the legislature, relative to that matter, point out the nature of the object which was in view; and when instructions were given as to the modifying of stipends, it was most properly declared that the stipend should he “bye and attour” the glebe. Accordingly, in the common and general case, the Court of Session, ever since its establishment as a teind commission in 1707, never has paid any regard to the glebe as a source of emolument to the clergyman. In following out that view the Court have never listened to the incidental circumstance of the glebe being a little more than the legal quantity, or its quality being superior to what commonly occurs, and, in the same proper spirit of interpretation, no regard has been paid to mortifications of land in favour of the minister where it does not distinctly appear that it is given to the minister so as to constitute a part of his stipend.
From this it may be deduced as a general rule, as contended for by the pursuer, that the glebe should be thrown out of view by the Court when modifying a stipend; but, like every other general rule, it must in extraordinary cases be subject to exceptions. To maintain that no general rule is subject to exceptions would be to maintain injustice. When the reason and principle cease so must the rule.
The question, therefore, in the present case is, whether the extraordinary circumstances which here occur do not create an exception to the general rule? This naturally leads to the consideration of the way and manner in which the pursuer has obtained the extraordinary benefit noticed by the defender.
It is somewhat singular, that, where a number of parishes are united, where nothing is said in the decree of union, all the glebes, wherever situated, are held to fall to the minister of the existing parish. There is no written regulation of any kind respecting this arrangement, and I do not know why it should be so. But it has been established by custom, and is now confirmed by long practice. See Forbes, p. 225; Connel on Parishes, p. 413; Ersk. 2, 10, 61; Bankt. 2, 8, 18; and Forbes (Parish of Borge), November 26, 1755 (5127).
In the present case four parishes have been united. In the southern parts of Scotland there are instances of even more parishes. Now in such a case the minister gets the accession jure beneficll, and by no other title.
Now carrying into execution the reason of the thing, if any of these glebes are so situated that they can be added to the minister's own glebe, which is retained by him, and if they so add to his personal convenience and family accommodation, then such addition should not be taken into account in fixing the stipend of the united parishes payable from the teinds. But if it so happens that any of the united glebes cannot add to the personal convenience or family accommodation of the minister, and, in order to be occupied with prudence or common sense, must be let to a tenant for a rent, and so thrown in commercio, there seems to be no reason why such income or revenue should not be held as part of the benefice, and so taken into account. It is somewhat absurd to say that it is an addition to the glebe, and so under that cloak held to be excluded. There is no injustice in all this, becuase these united glebes must have been in all probability taken from the heritors, and if so, they should have been returned to those heritors from whom taken when the purpose for which they were originally given no longer existed. Again, the minister himself obtains the advantage by a very peculiar right, for it is only by default of the decree of union not mentioning the appropriation; for there are instances where the Court advised the glebes to be sold, and the price given to the heritor who furnished the new glebe, where that was necessary from altering the situation of kirk and manse; and it is believed that, upon an investigation it will be found, that in some instances the Court have adjudged these glebes so to be acquired for the minister's sustentation.
Under these circumstances, I humbly think that the present case is an exception from the general rule, and that the glebe in question should be taken into account in modifying the stipend of the parish. But in fixing the rent it must be done in such a way as to secure, under all circumstances, sure payment, and an allowance must be made for repairs, bad debts, and other contingencies.
It will also be observed, that, when a grass glebe was allowed to the minister, it
When the acts of Parliament which have been quoted by the pursuer specified a maximum and a minimum allowance of stipend, they did not say that the glebe was to be taken into account. There was not a word as to the glebe to indicate, whatever might be the size of it, that the commissioners were to consider what stipend they would modify, and whether they might not, in an extreme case, bring it under the minimum. The minimum was always to be given. Therefore, it appears that the maximum and minimum allowance of stipend was fixed without reference to the size of the glebe at all, but only to the duty of the cure.
I take the same view of the decisions with the Lord Justice-Clerk; and I think the principle thereby recognised is a very clear one, that tithes and stipend are altogether independent of the glebe. I think this principle was recognised from the first endowment of an Established Church in Scotland, and has continued throughout.
But, besides the general point, I conceive there is a strong case of personal exception against the defender, Lord Glenlyon. By the old excambion between a former Duke of Atholl on the one hand, and the Presbytery and the minister on the other, a transaction was entered into, avowedly to design a new glebe for the manifest advantage of the benefice. And the Duke of Atholl might well do so without being a loser, as he thereby acquired the former glebe, which lay close in front of his seat of Blair Castle. It was most important to his Grace to acquire that ground, and very beneficial to him to do so, even though he gave a considerable tract of land at a distance in exchange; and accordingly, by a fair contract, the Duke then got full value for what he gave. But if he had then told the minister, as his representative now tells the minister's successor, that, after acquiring the new glebe, its extra value was to operate in defeating future claims of augmentation, and in relieving the Duke's teinds thereof, is it clear that the excambion would have been gone into? On the contrary, if the Court are to allow this to be done, the effect is, that, while the Duke, for a most onerous cause, appeared to confer a benefit by bestowing a glebe of unusual size and value on the minister, the Duke's representative shall, nevertheless, be allowed to pare down that glebe to the minimum of four acres, by keeping back all augmentation, in so far as corresponding to the surplus size of the glebe. Thus, the true meaning and object of the contract of excambion is entirely defeated, in a manner which is contrary to good faith. Suppose that the Duke had said he would give four acres for glebe, and also a heritable bond for £50 per annum, in order to bring about the excambion,—could he, or his representative, now come forward and say, that, in respect of this same £50 per annum, a deduction must be made from the amount of augmentation which would otherwise be awarded? I do not think such a plea could have been listened to, and yet the present plea invokes the same injustice. Lord Balgray has observed, that he does not know how the minister comes to get all the glebes whenever several parishes are united. But the reason appears to me to be just this, that there is no other person who has any right to these glebes. How could the heritors divide them rateably among themselves?
I think this necessary, because of the very ample discretionary power with which we are intrusted. The commission 1621, c. 5, directs us to make suitable and competent provision for the clergyman. It gives expressly “power to the said commissioners to provide the same (kirks) with such proportion of stipends as they shall find may be, with least prejudice and best commodity, made out of the fruits of the said parochines to the ministers.” Again, in the statute 1633, c. 19, it is provided that “the lowest proportion for maintenance of ministers shall be 8 chalders of victual, or 800 merks, proportionally, except such particular kirkes occur wherein there shall be a just, reasonable, and expedient cause to go beneath the foresaid quantity.” And the statute “referred the consideration of the reasons and causes thereof to the commissioners,” &c.
Thus, the circumstances affecting the allowance to be made were referred to the conscientious consideration of the commissioners; and it appears to me, that, in practice, the ample discretion originally intrusted to the Court of Teinds has been always acted upon. It is matter of constant custom to take into our consideration every circumstance, direct or indirect, which may have any reasonable influence, however remote, in satisfying us what is the suitable stipend which should be modified in any given case. Now it would indeed seem to be a rather extraordinary and startling proposition, in the face of so ample discretionary powers, followed, as they have been, with practice like this, if the Court were obliged to lay altogether out of their view a circumstance which so directly, and it may be so materially, affects the income of the clergyman, as the permanent annexation to the benefice of a separate provision, arising from a glebe of unusual extent. If statute had explicitly enjoined this, or if a course of decisions had conclusively fixed it, there would have been an end of the question; but I think that neither statutes nor decisions have done so.
It is admitted that no statute contains an express injunction to lay the glebe out of view. But it is said the same thing is to be inferred from the direction to modify a suitable provision, “bye and attour” the manse and glebe. I think these words do not warrant such an inference. By the rapacity of the Lords of Erection and others, the whole temporalities of the church were every where seized on, and no where was the glebe, of itself, enough to support the clergyman. When, therefore, a farther allowance required to be made for him out of the teinds, and this was directed to be done, “bye and attour the glebe,” it by no means seems to me that this intended the glebe to be laid out of view. It would seem at least equally probable, or indeed more probable, that these words expressly intended the glebe to be taken into consideration, and such farther allowance made as appeared to be a suitable provision.
In regard to the judgments awarding a full grass glebe, whatever might be the size of the arable glebe, I think they afford no inference either way, as there is a statute making it imperative to award the one glebe over and above the other, and the Court merely acted ministerially in doing so.
The Dean of Faculty, in a most able argument, referred to 50 Geo. III. c. 84, and 5 Geo. IV. c. 72, in support of the pursuer's argument, but, in disposing of this question, I also think that no inference either way can be drawn from them. The legislature made it imperative in certain given circumstances to award a certain allowance, and the Court in so awarding it were merely acting in a ministerial capacity.
I conceive, therefore, that neither expressly, nor by any sound implication, can it be held that the statutes have foreclosed the Court from taking the glebe into their account. What, then, has been the practice of the Court during the period of two centuries in which stipends have been modified by it? The Dean of Faculty said that it was not the early practice of the Court to take into view the size of a glebe. But we have only scanty means of ascertaining this as there are but fragments of the earlier records now extant. On looking, however, at some of these, though very cursorily, which have been given by Sir John Connell in the appendix to his work on tithes, it would rather appear to me that the glebe was taken into account. In one of the first cases, 1 which related to the stipend of the chapel of Holyroodhouse, a missive was lodged in name of the king, setting forth the reasons for making a sufficient provision for the minister, and, after stating the eminence of the place and the greatness of the charge, it adds that the minister, “as we are informed, hath neither manse nor glebe, and yet more meanly provided nor many others having a far less charge nor he.” And that missive, and another also by the king, require these reasons to be considered, and a sufficient maintenance to be provided for the minister. But if it was relevant to state the want of a glebe for increasing the allowance to be made, it would seem necessarily to imply that the glebe was always taken into account in that question.
Again, in 1631,
2 in the augmentation of the stipend of the parish of Restalrig, in which opposition was made, the minister stated the burdensome nature of his charge, to which the heritors answered, that he had “out of the lands called Parsonsknowes the feu-duties thereof, extending to 47 punds, with ane manse
_________________ Footnote _________________
1 June 30, 1680, 2 Conn. (on Tithes), 255.
2 March 25, 1681, 2 Conn. (Tithes), 268.
These decisions of Restalrig and Wilton seem to go at least thus far, that it is impossible to maintain that the Court have their attention exclusively limited to the teinds alone in modifying an augmentation. The Court have concerns in such a question with the temporalities of the church also.
Keeping in view these principles, let us now look to the circumstances of the present case. (His Lordship then recapitulated these, and intimated a doubt whether the origin and history of the four glebes had been sufficiently traced, and whether the extra value arose solely or chiefly from the excambion).
If the minister could prove that the land in question was derived to him through the pious donation of some individuals, I think the Court could not take that into account in awarding a suitable public provision for his maintenance. The bequest of the individual being intended as a gratuitous addition to the public endowment the Court would not be entitled to defeat that intention. But the minister does not ascribe his acquisition of the land to any such source. He says he has four glebes, and that two of them were formerly excambed on very favourable terms, and thus the extra size of the present glebe land has arisen. Even assuming the accuracy of all this, I think the Court must take into view the unusual size and value of such a glebe. An adventitious circumstance, the excambion, has been the occasion of its possessing this unusual value, but the Court is in the daily habit of considering circumstances equally adventitious, such as the vicinity of a manse and glebe to the sea where there is an abundant supply of fish, or to coal pits where there is a cheap supply of coal. In short, a fortunate circumstance has enhanced the value of the glebe, and the Court must take the glebe as it stands into their account.
Laying Wilton out of view, there is the case of Old Deer, which is perfectly clear on the same side. The case of St Madox seems to be an opposite judgment. But in regard to Beith, where there were complicated circumstances, it may be that the charge was so burdensome that the Court had the glebe in their view even when they fixed the stipend as high as they did, and I would apply the same remark to the case of the barony of Glasgow, the circumstances of which are altogether peculiar.
If the Court were to refuse to take the excessive size of any glebe into consideration the consequence would be that some clergyman would have much more than a suitable provision and maintenance, which would be contrary to the spirit of our ecclesiastical polity, and to the purpose for which we are invested with so large discretionary powers in modifying augmentations. So lately as the year
I conceive that the decisions of this Court do not preclude us from looking at the size of the glebe any more than the statutes do; and the question being thus open, I am satisfied that, on principle, the Court ought to take the glebe into view.
If this case is to be viewed as an exception from a general rule, I concur with the Lord President in thinking it not at all a favourable one for the defender. It is distinctly stated by the minister that the united glebes of Blair and Strowan lay in the front of Blair castle, and that an excambion was made under which the then Duke of Athol gave an extensive tract of ground at some distance in exchange for the old glebe. This statement is not denied by Lord Glenlyon. The presbytery could not have consented to the proposed excambion, which was to inconvenience the minister by removing him to a distance from the church and parish school, unless some value was to be given, and accordingly it is now said that the tract of land given by the duke was very valuable, and so it might be without the exchange having been a loss to the duke, since he acquired land lying in the very front of his house of Blair castle, which it was a very solid benefit for his grace to acquire. But after such a transaction being made, I can conceive nothing more unjust than that the representative of his grace should turn round and say, that because of the value so given he should not only get the equivalent stipulated in the contract of excambion, but the farther value of stopping the minister short in his process of augmentation. Had such a proceeding been suggested to the Duke of Athol recently after making the excambion, he could not, I think, have stated it in this Court, and the lapse of time since the excambion does not in any degree affect the principle of the transaction.
But if this were merely the general question, and free of specialties, I hold the rule to be, that this Court, in modifying an augmentation, has nothing to do with the glebe. It is said that, where the glebe is of extraordinary value, it is to be taken into account. Now, it appears to me, that the Dean of Faculty ably showed the essential distinction in the origin of the right to the glebe, and that of the right to the stipend, which are quite independent of each other. Fortunately for Scotland, the commissioners of teinds received power to modify suitable maintenance and competent stipends to the ministers. And the old commissions expressly bear, that this is to be done “bye and attour the manse and glebe.” These last are not put under the jurisdiction of the Teind Court. They came from other sources, and were part of the old temporalities of the church. I think we have here nothing to do with the manse and glebe; and the statutory provision of a grass glebe is a strong illustration of this. That statute makes it imperative to
It is granted, on the one hand, that mortifications are not to be taken into account against the clergyman; and, on the other hand, that such land as forms part of the original constitution of the benefice is to be so taken. And, in the present case, I conceive there is enough, both of decisions and of practice, to fix that the glebe land in question cannot be taken into account.
In modern practice (laying aside those instances referred to by Lord Corehouse, which I have had no opportunity of considering), it does not appear that, down to the case of Old Deer, the glebe was taken into account. And I attach much importance to the statement, given in a note appended to the report of the case of Old Deer, that Lord Robertson, in the case of Buitle, had expressed an opinion, to the effect, that the glebe ought not to be taken into account. But the question came to solemn trial in the case of St Madox, which, upon the heritor's averments, was a very strong case against the minister. And, in that case, the Court, nevertheless, refused to consider the size of the glebe. And then came the case of Beith, which was also a very strong case, yet the Court there also refused to look at the glebe; and the heritors, in a reclaiming petition, were so satisfied, that the Court had expressed a strong and decided opinion upon that point, that they did not attempt to touch it, but went upon other grounds altogether. Nothing since then has occurred which is incompatible with these judgments. In the case of Wilton, the minister was in possession of a large extent of ground, the origin of which could not be traced. The interlocutor there pronounced does not imply a finding upon the point now raised; and the opinions given were most decidedly opposed to any such finding. The lands were part of the original endowment of the benefice, and there was a mere presumption that they were glebe-lands. In that case, the Lord Justice-Clerk “held it a settled point, that the circumstance of the minister enjoying accidental advantages from the glebe, was no bar to an augmentation, and could not affect the judgment of the Court.” The Lord President also said, “that Lord Robertson had laid down the law, that the glebe, in the ordinary case, could not be taken into view; and he agreed with the Lord Justice-Clerk, that that point must be held to be settled.” Lord Balgray observed, that, “if there be an ordinary glebe, of which the value happened to be increased by adventitious circumstances, it could have no influence on the judgment of the Court.” And, in that case, the Court found that it must be presumed and held, “that the lands were the old glebe-lands of the popish incumbent, forming part of the original endowments of this benefice;“—also, “that the two together, lands, and payment in money and victual, must be held to have been established
The Lords President, Justice-Clerk, Moncreiff, and Cockburn voted that the glebe should not be taken into account.
Lords Glenlee, Balgray, Gillies, Meadowbank, Mackenzie, Medwyn, Corehouse, Fullerton, and Jeffrey voted that it should be taken into account.
The Court pronounced this interlocutor:—“Find that the extent and value of the lands possessed and enjoyed by the pursuer as glebes ought to be taken into consideration in awarding a sufficient and competent stipend of the cure, out of the teinds of the parish, and appoint parties to debate quoad ultra next sederunt day.”
When the augmentation was afterwards pleaded, the minister asked 15 chalders, and the heritors offered 13. The Court unanimously considered the offer to be liberal, the Lord Justice-Clerk observing, that, though he had differed from the majority of the Court on the question, whether the glebe was to be taken at all into account, yet, that principle having been fixed, it must now have fair play. And as 16 chalders, with an ordinary glebe, would have seemed a proper stipend for this parish, his Lordship thought that the offer of 13 was ample, because the extra value of the glebe could not, in any view, be rated at less than the difference between 13 and 16 chalders.
The Court modified an augmentation of 13 chalders.
Solicitors: Campbell, and Mack, W.S.— H. Graham, W.S.—Agents.