Rev. Dr Auld - Sir J. Connel - Keay v. Magistrates of Ayr, and Heritors of Ayr and Alloway - Wetherel - Ada - James Campbel - Wilson. [1827] UKHL 2_WS_600

UKHL
Rev. Dr Auld - Sir J. Connel - Keay v. Magistrates of Ayr, and Heritors of Ayr and Alloway - Wetherel - Ada - James Campbel - Wilson.
[1827] UKHL 2_WS_600
Rev. Dr Auld , Appellant,—Sir J. Connell—Keay v. Magistrates of Ayr , and Heritors of Ayr and Alloway, Respondents,—Wetherell—Adam—James Campbell—Wilson.June 13 , 1827 .Lords Gillies and Meadow bank .

Subject_ Manse. — Stat. 1663, c. 21.—

Found, (reversing the judgment of the Court of Session,) that the minister of a Royal Burgh, with a landward parish annexed, is entitled to a Manse under the statute 1663, c. 21.The united parishes of Ayr and Alloway are composed of the Royal Burgh of Ayr, with a landward district attached to it, and the landward parish of Alloway. Dr Auld, the incumbent of the first charge, presented a petition to the Presbytery of Ayr, setting forth, that although there was an extensive landward parish connected with the burgh of Ayr, and some land for a glebe to the minister of the first charge, yet there was no manse or glebe provided for him; and craved that a meeting should be held for taking the matter into consideration. The Presbytery met, and after hearing parties, “found Dr Auld entitled to a manse and office-houses, as first minister of the united parishes of Ayr and Alloway; ordained the Magistrates and heritors to build the same; and plans, specifications, and estimates to be prepared;” which having been approved of, the Presbytery decerned and ordained “the Magistrates of Ayr, in so far as their interest is concerned, and the other heritors of the united parishes of Ayr and Alloway, usually denominated the parish of Ayr, to pay their several proportions of a sum not exceeding L.1200 sterling, for building a manse and office-houses for the minister of the first charge of the said parish, according to their respective valuations, as stated in the town's books, and according to which the land-tax is levied, or according to any other mode which may be found authorized by law.”A suspension of a charge on this decree was presented by the Magistrates of Ayr, and the heritors of the united parishes, on the ground that the ministers of Ayr, being ministers of a Royal Burgh, although with a landward district annexed, had no legal claim to a manse and office-houses.The Lord Ordinary took the case to report to the Second Division, and the Court found, “That the charger has no right to a manse under the Act of Parliament 1663, and decern; but before answer as to the specialties founded on by the charger,

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The Magistrates lodged a note, stating that there was a specialty in their favour, which would supersede the determination of the general question, namely, that every part of the parish was burgal, being part of the old burgh of Ayr, and referred to the original charter of erection of the burgh, by William the Lyon. The Court, however, ordained their order to be obtempered, “reserving to the parties to be beard upon any specialties that occur in this cause.”Lord President (Hope), Balmuto, Balgray, Succoth, Pitmilly, Gillies, and Cringletie, stated that they were “unanimously of opinion, that independently of all specialties, the charger is by law entitled to have a manse designed to him, as minister of the united parishes of Ayr and Alloway. In point of principle, the Judges cannot see any distinction between a burgh royal, having a landward parish, and burghs of barony and regality having the same.2d, They consider the point to have been fixed by the judgment of the House of Lords in the case of Dunfermline, which they have always understood proceeded on the general principle. Indeed, it appears to the Judges, that the specialties founded on all bore the other way. ”The Second Division, however, on advising petition, answers, and the above opinions, and “whole proceedings in the cause, adhered.” *Dr Auld now gave in a condescendence of the specialties, which were, that Alloway parish, united to Ayr about 1692, was, prior to that year, a landward parish; that a large part of the parish of Ayr proper was landward, and the old parish of

Footnote

* Two of the Judges did not vote, one being an heritor, and the other Ordinary on the Bills, who was not consulted, so that, out of the remaining 13, ten voted in favour of the minister's claim, and three against it. But the three were a majority of the five sitting in the Division before which the question had come; and at this time the decision was carried by the majority of the Division before which the case depended.

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The Court being equally divided, Lord Cringletie was called in, and thereon their Lordships, on the 16th June 1825, altered “the interlocutor complained of, suspend the letters simpliciter, and decern; reserving to the charger to proceed in any other manner which may be competent, for establishing his right to a manse; and to the suspenders their defences, as accords; find the charger entitled to expenses, so far as incurred since the 11th February 1823, * subject to modification. †Dr Auld appealed.Appellant .—In all countries where the Christian religion prevailed, tithes, manse, and glebe, were conferred on the parochial clergy. There is evidence that manses must have been known in Scotland about the middle of the 13th century, and that the Popish clergy enjoyed them, and suitable glebes, down to the Reformation, and, after that event, the greatest anxiety is shown by the legislature in protecting the Protestant clergy from the dilapidation of their predecessors, who had set in feu, or long tack, great part of the manses and glebes. During the

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* The date at which the suspenders first raised the objection to the jurisdiction.

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† See 4 Shaw and Dunlop, No. 81.

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* In the Case for the appellant, it is stated that the following notes opinions of the Judges in the Dunfermline case were taken by one of the counsel in the cause.—“ Lord Hermand. A minister of a royal burgh, having a landward parish, is de jure entitled to a manse. The plea of res judicata is inapplicable to this case. The benefice is not to be injured by what was done by a former minister. The present charger does not represent him.— Lord Craig . The only difficulty is the res judicata; and it ought to be got over for the reason mentioned by Lord Hermand. The act 1663 restored the act 1649. A minister of a royal burgh, having a landward parish, is entitled to a manse. Besides, there is, in this case, clear evidence that the minister had once a manse.— Lord Justice-Clerk . Of the same opinion.— Lord Meadowbank . Cannot get over the res judicata. If it were not for that, I could have no doubt of the minister's right to a manse, both upon the general point and specialties.— Lord President Campbell . The act 1663 comprehends all prior enactments, 1592 among the rest. The judgment of our predecessors, with respect to manses in borrows-town kirks proceeded on a great mistake. Every parochial minister is entitled to his stipend out of the teinds; he is entitled to a glebe; and he is entitled to a manse. The act about borrows-town kirks has nothing to do with parochial ministers. It appears to be Mr Falconer's opinion, that the act 1663 did not injure the right of the minister of a royal burgh and landward parish to a manse. As to the res judicata, owing to the reservation, the question is still open on some ground or and other; and it will be attended to, that “several (several only) of the Lords were of opinion that the act 1649 was left out of the act 1663 of purpose.” The majority was of a different opinion; but “they agreed that the modification of L.40 Scots, and the minister's accepting of the same, made it no question.” It is clear, however, that the L.40 Scots was only a temporary arrangement with the then incumbent; and it the time it was agreed to, that sum might be sufficient. Then, after some further

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Respondents .—The clergy have right to manses, not at common

Footnote

remarks upon this point, he adds, if your Lordships cannot get over the res judicata, raise the house-mail to what is an adequate rent; make it L.40 sterling instead of L.40 Scots; but I think it would be much better to give him a manse in the ordinary way. In the case of Linlithgow, the minister had also accepted of a manse-mail, and found entitled to a manse. The case there stronger against the minister.— Lord Bannatyne . Clear for the minister on the general grounds, but cannot get over the res judicata.— Lord Methven . Of the same opinion.— Lord Cullen . Did not hear his reason, but of opinion that the res judicata should be got over.— Lord Woodhouselee . Held the claim not barred by res judicata.”—In regard to what took place in the House of Lords, this statement was made by the appellant:—“The appeal cases, both for the heritors and the minister, argue the question generally. The only specialty founded upon, or seriously referred to in either of these pleadings, is the res judicata, which was a specialty against the minister. The Lord Chancellor, however, held, with the Court below, that this was no sufficient bar to his claim; and it is indisputable, that, holding it no such bar, that great authority decided entirely upon the general point arising on the terms of the act of Parliament. The late Mr Horner, though not present when the judgment was delivered, expressly states, in a letter to one of the appellant's counsel, that the argument at the bar “turned wholly upon the general question.” Mr Mundell, the solicitor who conducted the case for the minister, wrote to him at the time in the following terms, with regard to what passed when the judgment of the Court below was affirmed:—
“In moving the judgment of affirmance, the Chancellor did not say much; he merely adverted to what he had said on the day when counsel withdrew from the bar—that he had examined the point of res judicata, and found there was no foundation for it. With respect to the merits, he adverted to a position made by Sir Samuel Romilly, who had contended that the right of a minister in your situation was so clear under the act of Parliament, that, even if it could be made appear that the cases relied upon by the appellants did not import the contrary, nothing short of a judgment in the last resort could give a construction to the act of Parliament negativing that right. His Lordship observed, that if there had been a train of decisions, finding a minister in such a situation not entitled to a manse, and the country had acted on these decisions, he must have abided by those decisions, even though there were no judgment in the last resort, whatever his own opinion might be on the act of Parliament. But there did not appear to be any such cases; and upon the act of Parliament, there could be no doubt that you were entitled to a manse.”
“In confirmation of what is stated in these communications, Mr James Chalmer, (whose accuracy is well known to some of your Lordships, and who was solicitor for the heritors in the House of Lords,) says, in answer to a question put to him on the subject, that although he had preserved no distinct note of the Lord Chancellor's speech, the affirmance went upon the general ground. “I understand (he states in his letter) the affirmance to be on the general ground, that the minister of a burgh and landward parish was entitled to a manse, the decision marked by Lord Kilkerran in this very parish being held erroneous. The minister of a parish purely burghal certainly not entitled.””

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Master of Rolls. —Is it possible that the judgment in the Dunfermline case could have proceeded on any other than the general ground? I have read the papers in that case carefully, and I cannot see that it could have been decided on any other but the general point, and this House must be satisfied, that the judgment did not proceed on general principles, before it can allow the judgment to be shaken. The House of Lords affirmed the judgment of the Court of Session, that the Presbytery had a right, in the Dunfermline case, to design a manse: now, could the Presbytery have designed a manse on specialties?Sir Charles Wetherell (for the Heritors).—There was an extremely important specialty in the Dunfermline case, namely, that the minister had once been possessed of both manse and glebe, and on this specialty the affirmance in this House proceeded.Master of Rolls .—Your argument will just come to this—There are two grounds on which this House might have proceeded—one is agreeable to law—the other is against it; and you, in order to overcome the objection of res judicata, presume that the House went on the ground that is against all law. It is too conclusive, that either judgment went on the general grounds argued by the parties, or on a ground against law, and not hinted at by the heritors. You contend, that the Presbytery have no jurisdiction, except under 1663; but in the Dunfermline case the Presbytery designed a manse, and that designation was confirmed—Can we then, resist concluding that the House went on the general ground, and did not hold a jurisdiction to exist where none existed?Sir Charles Wetherell .—But that is exactly a point as to which there may be a question. In the Dunfermline case the objection to the jurisdiction was not raised; it had been overlooked. We can make it plain, that, under the statutes, the appellant has no claim.Master of Rolls. —You cannot go into them. We can't conjecture what ought to be the law, but what is the law.

Campbell (for the Heritors).—The present case certainly was not decided

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Master of Rolls .—The Roxburgh case was here decided on grounds which were not even touched upon or suggested in the Court below.Sir Charles Wetherell .—If that be your Lordship's view, we need not proceed to the argument, as to want of jurisdiction; for if the appellant, in virtue of the Dunfermline case, comes under the statute 1663, the Presbytery clearly had jurisdiction.Adam (for Magistrates of Ayr).—The appellant has no claim to a manse, seeing he is clergyman of a kirk purely burghal.Master of Rolls. —The House having decided, that when a parish is partly burghal and partly landward, the minister has right to a manse, the decision cannot be permitted to be impugned directly or indirectly; but if you can take the case from the application of that decision, that is a different matter, and the House will most readily listen to you.Adam .—The burgh of Ayr extends over the united parishes of Ayr and Alloway. The original charter of erection of the burgh of Ayr was granted by William the Lion. The boundary specified in the charter includes the whole extent of what was the old parish of Ayr. The lands, contained in the old parish of Alloway, were granted to the burgh by Alexander II., by charter, in the year 1236—were erected into the barony of Alloway by Robert I. 1324—to be held of the town by the same tenure, and under the same administration, as the original patrimony of the burgh. By these two last charters, the town is appointed to pay L.10 Scots of burgage-duty for the barony of Alloway. In a charter of confirmation granted by Robert III., in 1400, the burgh is appointed to pay L.10 Scots more for the whole of their other possessions (Baronia de Alway tantum excepta). By a charter of James VI. all these subjects are consolidated, and a burgage-duty of L.20 Scots appointed to be paid for the whole. Thus, the whole territory of Ayr and Alloway, that is the whole united parish, was held in burgage by a proper burghal tenure, and constituted one burgage tenement. Any subinfeudations which afterwards took place, were allowed only by special grant of the crown. Being therefore a burghal parish, the appellant has no right to a manse. At all events, none of the burden can be thrown on the Magistrates, for they are not ‘heritors,’ in the proper sense of the word.The House of Lords ordered and adjudged “that the interlocutors complained of be reversed; and it is farther ordered, that the cause be remitted hack to the Second Division of the Court of Session, with an instruction, that it is fixed by the judgment of the House of Lords in the Dunfermline case, that the minister of a royal burgh, having a landward district annexed, is by law entitled to have a manse assigned to him.”Appellant's Authorities.— Appellant's Authorities.— Forbes's. Treatise on Tithes. Hailes' Annals of the Church; 1563, c. 72; 1072; c. 1592, c. 118; 1594, c. 202. 2 Ersk. Inst. 10.

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Solicitors: Richardson and Connell — J. Chalmer — Moncrieff and Webster,Solicitors.