Charles Mercer, Esq., of Letbindy v. Rev. Mr. Williamson [1786] UKHL 3_Paton_43

UKHL
Charles Mercer, Esq., of Letbindy v. Rev. Mr. Williamson
[1786] UKHL 3_Paton_43 · 1786-03-17
they were not precluded from doing so, though the old manse might be repaired at a less expense than the cost of a new one; and also held, that they were not limited by the act 1663 to the sum of £1000 Scots, (£83. 6 s . 8 d .) but entitled to go beyond it, whatever the expense of building might be.Held, where the presbytery had ordered an old manse to be pulled down, and a new one built, that

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By law the heritors and land owners of each parish in Scotland are bound to build and repair the churches and manses of the ministers. The manse and offices of the parish of Lethindy having become ruinous, the respondent, the incumbent of the parish church, applied to the presbytery of the bounds, stating the ruinous condition of the offices, and dangerous and insufficient state of the manse, and praying a visitation, in order to have these restored. The presbytery having taken evidence as to the state of the manse and offices, ordered the old manse to be pulled down and a new one to be built, together with suitable offices, and assessed the heritors of the parish in the sum necessary to defray the payment thereof, amounting to £210, and granted decree accordingly.The appellant, who is the largest heritor in the parish, holding land to the extent of three-fourths of the whole property in it, received notice of these proceedings, but did not do any thing further than intimate his opinion that he deemed a repair of the old manse quite sufficient, in the circumstances. But this course not having been adopted, he brought a suspension of the decree of the presbytery to the Court of Session, setting forth that the manse having been built so recently as 1756, could not be beyond repair from age, and that a repair was the proper step that ought to be taken.Aug. 10, 1784.Jan. 25, 1785.

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The Lord Ordinary, after a remit made to a builder to examine and report on the condition of the manse, pronounced an interlocutor, finding that it was for the advantage of all parties that a new manse should be built; and to this interlocutor, on reclaiming petition, the Court adhered, with expenses, and decerned.Against these interlocutors the present appeal was brought.Pleaded for the Appellant .—The act of Parliament passed in 1663 provides that the heritors shall provide and build manses, but it also, at same time, stipulates that the expense thereof shall not exceed the sum of £1000 Scots (£83. 6s. 8d.)—That this was a positive enactment of the statute, which being binding in all cases, the Court of Session had no discretionary power to extend it beyond the maximum mentioned.

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Pleaded by the Respondent .—The plea founded on the act 1663, that the sum is limited to £83. 6s. 8d. is untenable, because that sum had reference to manses immediately then to be built in parishes where there had been none before. Perhaps the sum was reckoned sufficient in those days for building a manse, but now that things and circumstances have changed, the legislature never intended that this sum would be sufficient for such a purpose in all future times. This is evident from the act itself, because in the very next clause, where it comes to speak of the repairs of manses then already built, no limitation in amount is imposed whatever in that department of expense, while, in the present instance, the new manse has been ordered to be built only after the most careful inquiry that such was necessary, and the most advantageous course for the heritors.After hearing the appellant's counsel.Lord Chancellor said,
“The respondent's counsel need not answer. The Court of Session had gone according to the spirit of the statute, and according to many former decisions. The appellant was inexcusable for bringing such a matter here; and therefore I move to affirm with £100 costs.”
It was ordered and adjudged that the interlocutor complained of be affirmed with costs.Counsel: For Appellant, Ilay Campbell, John Hagart. For Respondent, Alex. Wight, Wm. Adam.Note .—Not reported in Court of Session.