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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mackenzie v Mackenzie [1835] CA 13_1014 (30 June 1835)
URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS1014.html
Cite as: [1835] CA 13_1014

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SCOTTISH_Shaw_Court_of_Session

Page: 1014↓

Mackenzie

v.

Mackenzie
No. 310.

Court of Session

2d Division T.

June 30 1835

Ld. Jeffrey.

Thomas Mackenzie,     Suspender— Ivory— A. Dunlop. Rev. John Mackenzie,     Charger.— D. F. Hope— Maitland.

Subject_Manse.—

An incumbent having, in 1821, judicially declared himself satisfied with the additional accommodation then provided by the heritors to his manse and offices at a considerable expense, further additions refused. 2. Question, whether it is competent to decern against heritors for an addition to a manse which is in a perfectly repairable condition? 3. Heritors are entitled themselves to execute repairs decerned for, at the sight always, and to the satisfaction of the Presbytery.

In 1821, the charger, the Rev. John M'Kenzie, minister of the parish of Lochcarron, applied to the presbytery of Lochcarron for a visitation of his manse and offices. The heritors agreed to repair the manse—to make an addition to it—to erect certain new offices, and to repair others, all according to plans and specifications given in by them to the Presbytery, the estimated expense of which was £633, 12s. 2d. The minutes of the Presbytery bore, “that Mr Mackenzie, minister of Lochcarron, being asked by the moderator if he was satisfied with the accommodations, as specified particularly in each of the specifications as now lodged on the presbytery table? did answer, He was. Which the presbytery considering, have unanimously come to the resolution to grant decreet for the same,”

They accordingly granted decree for the sum above mentioned, and the additions and repairs were thereafter executed by the heritors, subject to an alteration made at the request of the minister, which created an additional expense of £20. The minister entered into possession, but no judgment was pronounced by the presbytery, declaring the manse free. In 1832, the minister again applied to the presbytery for a decree for repairs, and for a further addition, both to the manse and the offices. The presbytery, in consequence, held a visitation, and obtained a report from tradesmen appointed by them at the suggestion of the minister and of the heritors, specifying the repairs which were required, and hearing that the buildings were perfectly capable of being sufficiently repaired. The suspender, Mackenzie of Applecross, the principal heritor, expressed his readiness to execute all the repairs recommended by the tradesmen, but objected to any additions. After some delay, with the view of an arrangement being effected, the presbytery, on the 1st of March, 1833, pronounced this deliverance:—“The presbytery find, 1st, That the manse of Lochcarron, although it is declared in the tradesmen's report capable of being repaired, is yet, on account of the smallness of the apartments, and the smoking of the chimneys, insufficient and unfit for the comfortable accommodation of the incumbent and his family. 2d, That the barn, even although it were repaired according to the report, would, on account of its sheltered situation, be unfit for seasoning the incumbent's crop, and, from its small size, incapable of containing it. 3d, That there is neither a pig-stye nor a poultry-house on the glebe of Lochcarron. They, therefore, resolve, 1st, That a building of two storeys, twenty-eight feet by nineteen and a half feet over walls, to contain two public rooms, the one ten, the other nine feet high, be erected in front of the manse. 2d, That a barn fifty feet by nineteen over walls, eight feet high in the side walls, roofed with slate, and part of the sides done with wattling, be erected adjoining the present offices. 3d, That a pig-stye and a poultry-house, each eight feet by six within walls, and of the same height as the present offices, be built in the most convenient situation; all according to plans and specifications to be hereafter considered. 4th, That the repairs to the manse, offices, and garden-wall, declared necessary in the tradesmen's report, be executed, except in so far as they would be inconsistent with the above resolutions; and they enjoin the heritors of Lochcarron to provide plans, specifications and estimates, applicable to the additions and repairs above mentioned, betwixt and the meeting of presbytery, which is to hold at Dornic on the 2d day of April next. On all which Mr Mackenzie took instruments in the clerk's hands, and craved extracts. Against the foregoing resolutions Mr Pirie protested on the part of his constituent, took instruments in the clerk's hands, and craved extracts. The presbytery, finding from this protest being taken, that there is no likelihood of the heritors providing plans and specifications in pursuance of the injunction to that effect laid upon them, recommend to the incumbent to procure such plans and specifications to be laid before the said April meeting; which minute being read to the heritors, the presbytery adjourned, to meet at Dornic on Tuesday the 2d day of April next.”

At their next meeting, the minister laid on the table the following esti-mate and offer by two tradesmen:—“Inverness, 26th April, 1833. To the Presbytery of Lochcarron. Reverend Gentlemen, We, the undersigned, beg to hand you our estimate of the manner of finishing the addition to the manse of Lochcarron, according to plan and specification, for the sum of

£299

0

0

Also the barn, according to plan and specification, for the sum of

151

5

0

Also the repairs of manse, according to plan and specification, for the sum of

14

4

0

Repairs of byre, according to specification,

7

10

0

Also the garden wall, to specification,

32

0

0

£503

19

0

We, the undersigned, do hereby bind to finish all the above specified work in a sufficient and workmanlike manner, to the satisfaction of any who may be appointed, for the sum of £503, 19s. sterling, also the chimney heads and vents by the day, if possible.”

The presbytery thereupon pronounced as follows:—“All which the presbytery considering, they resolved to ordain, as they hereby do ordain, the heritors of Lochcarron to execute the said additions and repairs without loss of time; the work to be begun on or before the middle of June next, and to be finished by the end of July 1834; decern accordingly, and grant decreet for the further sum of £7, 1s. sterling, for advertising, procuring plans, and clerk's fee, amounting, with the sum contained in the lowest of the above estimates, to £511 sterling, against the said heritors, in proportion to their valued rents in the parish.”

On this, Applccross brought a suspension, on the ground that, as to the repairs, the heritors were entitled, as they had always been willing, to execute them themselves at the sight of the presbytery; and, as to the additions, that it was incompetent for the presbytery to order additions to a manse which was capable of being repaired; or, at all events, that such could not be demanded in the present case, where, so recently as 1821, the incumbent had obtained additions of such extent, with which he had then declared himself satisfied, and which were, in reality, perfectly sufficient.

The point chiefly argued before the Lord Ordinary related to the general question of the power of the presbytery to order additions to a manse which was repairable; but as the Court waived pronouncing any decision on this point, it is not necessary specially to advert to it. As to the other matters, the minister contended, that he was always entitled to a sufficient and comfortable manse; and that his having agreed to take in 1821 what the heritors offered to give, could not preclude his demanding this on a future occasion, more especially as the manse had never been declared free; and he craved that a remit might be made to an Edinburgh architect to inspect the manse and report.

To this it was answered, that the minister having in 1821 judicially declared himself satisfied with the extent of additional accommodation then offered by the heritors, and the presbytery having given decree accordingly, although he was entitled to have the whole kept in thorough repair, he could not insist for a greater extent of accommodation, which could only be given now at an expense far beyond that for which it might have been included in the additions of 1821, had he not then declared himself satisfied. Further, that the manse and offices were perfectly sufficient inextent, and that the effect of the manse not having been declared free, was only to leave the burden of keeping it in repair on the heritors, but could give no claim to the minister for repeated enlargements; and as to the demand for inspection by an Edinburgh architect, that this was only admissible when the report of the tradesmen employed by the presbytery was either objected to as incorrect, or as not sufficiently specific; while here no such objection was stated or pretended.

The Lord Ordinary pronounced the following interlocutor, adding the subjoined note: *—“Finds, that there is no evidence or relevant allegation that the manse of Lochcarron is at present in such a state of general disrepair or decay, as to require any very extensive or thorough repairs; but that, on the contrary, it appears, with a few slight local exceptions, to be in a perfectly sound and sufficient condition; and finds, that, in these circumstances, the minister has no right to demand, or the presbytery to ordain, any additions to be made to the said manse, at the expense of the heritors; and, therefore, and to the extent of the sum charged for, as the estimated expense of such additions, suspends the letters and charge simpliciter, and decerns. Of consent of the suspenders, finds the letters orderly proceeded as to the three last articles in the specification, amounting together to the sum of £43, 14s.; and before answer as to the only remaining article, viz. the estimated expense of a new barn, appoints the cause to be enrolled, that parties may be prepared to state in what manner they propose to establish their contradictory allegations as to this article respectively.”

Both parties reclaimed; the minister on the general point decided against him, and the suspender, in so far as the letters were found orderly proceeded for the sums decerned for on account of repairs, instead of the heritors being left to execute these themselves, to which alone the suspender had ever consented.

_________________ Footnote _________________

* “The Lord Ordinary was at one time inclined to report this case to the Court. But, on the whole, he has thought it his duty, having heard a very full argument, to give judgment on the only point very much questioned at the debate. The decisions of the Court have no doubt varied considerably upon this point; though the Lord Ordinary believes there is no instance in which additions have been allowed, where extensive repairs had been made only ten years before, and where tradesmen of the presbytery's own appointment had reported that all the repairs actually required for the existing fabric might be executed for £14. In these respects, the case comes nearer that of Dalmeny than any other. But the Lord Ordinary has been most moved by the views which appear to have been taken by the Court in the most recent case which has occurred—that of Strathblane, 10th July, 1827 (5 Shaw, 913). The report of the actual state of the manse in that case exhibits a strong contrast to the present—the result being, that the floors and joisting of that manse were rotten; that the levels of the different stories required to be altered two or three feet; that one gabel must be entirely rebuilt; and, in short, that the expense of making it sufficient would be nearly equal to that of building a new manse. Yet, even in that case, there were difficulties about allowing an addition; and, in point of fact, it ended by a new manse being built.

“It is impossible, too, to overlook the near and strong analogy of the rule, now finally established, as to additions to parish churches, by the cases of Methven, 14th May, 1828 (6 Shaw, 791), and of Neilston, 1st February, 1831 (9 Shaw, 370). There had been a similar fluctuation in the earlier decisions upon that question, to that which the charger refers to in this. But the judgments of the Court in the two last mentioned cases, and the affirmance of the latest of them, after a most elaborate discussion in the House of Lords, has at last finally settled the law upon views and principles which the Lord Ordinary feels to be directly applicable to, and he hum by thinks decisive of, the present case.”

In addition to the pleas maintained before the Lord Ordinary, the minister contended, that, in the event of the Court adhering to the interlocutor, in so far as additions were disallowed, he ought not to be limited to the repairs decerned for by the presbytery on the assumption that there were to be additions.

On the cause being put out for advising, on the 2d June, the Lord Justice-Clerk having called the attention of the parties to the case of Channelkirk, decided June 18, 1818, but not reported, and having stated that he would communicate to them his notes of the case, as contained in his Lordship's note-book, * the Court in the mean time delayed

_________________ Footnote _________________

* The following is the report from the notes of the Lord Justice-Clerk, above, mentioned:–
the cause till the 10th, On its being then put out, their Lordships were agreed that it was not necessary to decide the general question of the power of the presbytery, in respect of the special circumstances of the case arising from the proceedings in 1821; and the suspender gave in a minute, consenting to the execution by the heritors, at the sight and to the satisfaction of the presbytery, of the repairs contained in the original specifications, and any additional repairs which might be “necessary to put the manse and offices in a sufficient and tenantable condition as at the present time,” but under a reservation as to the minister's liability, in so far as these might have been occasioned by his resistance to the execution of the repairs decerned for by the presbytery at the proper time.

The Court accordingly pronounced this interlocutor:—“In respect that the manse of Lochcarron, to which this question relates, was repaired in 1821, to the satisfaction both of the minister of that parish and of the presbytery, find that there is no ground to support an application for any addition thereto at the expense of the heritors, and, with this explanation, adhere to the interlocutor of the Lord Ordinary, submitted to review upon this head, and decern; and, with regard to repairs, allow a minute, now lodged by the suspender, to be seen for eight days, and answered if necessary, and appoint the case to be then put in the roll, superseding, in the mean time, further advising.”

In answer to the minute above-mentioned, the minister craved that it and the whole cause should be remitted to the Lord Ordinary; but the Court decerned in terms thereof.

Solicitors: Thomas Mackenzie, W.S.— Mackenzie and Macfarlane, W.S.—Agents.

 SS 13 SS 1014 1835

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