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Scottish Court of Session Decisions >>
M'Garroch v Scot. [1740] Mor 15160 (18 June 1740)
URL: http://www.bailii.org/scot/cases/ScotCS/1740/Mor3415160-043.html Cite as:
[1740] Mor 15160
A charge on a decree of modification and locality cannot be suspended but on consignation.
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A Minister having charged a tenant for the whole sum, which, by his decree of locality, was allocated upon the lands, whereof the said tenant's mailing was a part; and the tenant having offered a bill of suspension upon caution, it was past upon consignation only, by two consecutive interlocutors, though it was urged, that where the party charged is not decerned against nominatim in the decree, then the hornings on such decrees are only called general letters; but when the party is named in the decreet, and decerned against nominatim, then that is a special decree; and such only are those which the act 1669 forbids to be suspended but upon consignation.
N. B. The last petition was refused by the narrowest majority.
Fol. Dic. v. 4.p. 320. Kilkerran, No. 1. p. 531.*** C. Home reports this case:
Mr. M'Garroch having obtained a decreet of modification and locality, whereby there was allocated a certain sum to him out of the lands of Davington, he charged Scot the tenant for payment; who offered a bill of suspension, craving the same might be passed upon caution without consignation, upon this ground, that the 6th act 1669, which discharges the suspension of Ministers' stipends otherwise than upon consignation, concerns only the case where the Minister has a special decreet for the sums charged for; consequently the statute does not touch charges upon general letters which may be given at random, but where a decreet is taken in an ordinary action for payment of the sums charged for, which is called in the statute a special decreet.
Answered: This is not a charge upon general letters, but is founded upon a special decreet of modification, &c. whereby a particular sum is allocated upon particular lands, and the heritors, &c. are decerned to pay the sum so allocated; and if this charge could be suspended without consignation, it is easy to see how Ministers might be distracted by pleas before they got payment of their stipend. Ministers have now only alimentary provisions out of the teinds, and the law has provided, in their favour, that suspensions of their stipends should not so easily pass as in other cases, that they may not be withdrawn from their charges by unnecessary law-suits for recovering their stipends. It is frivolous to pretend, that by special decreets, in the act of Parliament, are meant decreets taken upon anordinary action against particular persons for payment of particular sums; for, though such decreets may be necessary, where the Minister has nothing to, found upon but use of payment, yet where he obtains a decreet of locality, that is a special decreet, upon which he can, without necessity of an ordinary action, charge the possessors of the ground; and if it were otherwise, he could have little benefit from the act, by a decreet of locality, in case he were obliged to convene the tenants upon every occasion in an ordinary action.
