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Scottish Court of Session Decisions >>
Minister of Dalrymple v Earl of Cassillis. [1667] Mor 15332 (27 June 1667)
URL: http://www.bailii.org/scot/cases/ScotCS/1667/Mor3515332-224.html Cite as:
[1667] Mor 15332
The use of payment by a particular measure found to denote the measure meant, when not expressed.
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The Minister of Darlymple having charged the Earl of Cassillis for his stipend he suspends on this reason, that he offered payment of the bolls in the Minister's decreet, conform to Linlithgow measure, which was the common measure of Scotland, by the act of Parliament, and is by the act of Parliament, the measure of Ministers' stipends. It was answered, that the Minister's decreet of locality, was indefinite, and mentioned no measure, and the meaning thereof was sufficiently cleared, because it was offered to be proved by the Earl's oath, that he paid ever since the decreet of locality, being 15 years, conform to the measure of Ayr, and that he knew it was the common custom of that country to pay all Ministers with that measure. The suspender answered, that his use of payment, either by mistake, or benevolence, of more then he was due, could not oblige him to the future, especially where the Minister did not found upon his decennalis & triennalis possessio; but upon a decreet of locality, wherein, though the measure be indefinite, it cannot be understood to be any other measure than the common measure of Scotland, seeing the act of Parliament anent Minister's provisions, bears expressly, that they shall have eight chalders of victual, Linlithgow measure.
The Lords having considered the decreet of locality, and that it did not extend to eight chalders of victual, but to three chalders of victual, and 400 pounds, which is the rate of four chalders of victual, at 100 pounds the chalder, as is ordinarly rated by the commission in that place of the country, they found the use of payment and common custom of the country, sufficient to declare it to be the measure of Ayr, seeing by that measure, it would not come up to eight chalders of victual.
