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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Minister of Hutton v. The Heritors [1902] ScotLR 39_749 (04 July 1902) URL: http://www.bailii.org/scot/cases/ScotCS/1902/39SLR0749.html Cite as: [1902] SLR 39_749, [1902] ScotLR 39_749 |
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Page: 749↓
(Before the
In a process of augmentation where the minister asked for four chalders, the heritors, while admitting the existence of free teind sufficient to meet an augmentation of two chalders, denied that the free teind was sufficient to meet an augmentation of more than two chalders. They moved that a reservation should be inserted in the interlocutor to the effect that the modification should depend upon there being in existence a fund for the purpose.
The Court granted an augmentation of four chalders and refused to insert any reservation in the interlocutor.
In a process of augmentation raised by the Minister of Hutton against the heritors, the minister moved for an augmentation of four chalders to the stipend. It was stated for the minister that there was free teind in existence amounting to £100, being amply sufficient for the augmentation asked.
Certain heritors opposed an augmentation of more than two chalders. They stated that the free teind in the parish amounted only to £36, being sufficient for an augmentation of from two to three chalders only. They further stated that, with the exception of the teinds of one heritor, the teinds of the parish were almost exhausted, and that therefore the augmentation craved if granted would fall to be borne almost entirely by that one heritor. They moved that a reservation should be inserted declaring that the modification and the settlement of any locality thereof should depend on its being shewn that there existed a fund for the purpose.
Argued for the minister—The admission by the heritors that there was free teind to meet an augmentation of two chalders showed that the minister had a prima facie case. The question of the existence of free teind could be determined in the locality. This course had been followed in the Minister of Banchory v. The Heritors, July 1, 1863, 1 Macph. 1014. Reservations of the kind desired by the heritors were introduced into the interlocutor only in cases where some special questions were at issue between the parties. Thus in Minister of Morvern v. The Heritors, November 22, 1865, 38 Scot. Jur. 49, a reservation was inserted owing to there being a question as
Page: 750↓
to what was included in the valuation. So in Minister of Inverkeillor v. The Heritors, March 4, 1902, 39 S.L.R. 551, a reservation was inserted in view of the fact that there was a question of reclaiming teinds from extraneous parishes. The mere fact that the teinds might not be sufficient to meet the augmentation was not in itself a reason for inserting a reservation. Argued for the heritors—When the heritors denied that there was sufficient free teind to meet the augmentation the practice was to insert in the interlocutor a reservation or declaration that the modification and the settlement of the locality should depend on its being shown that there existed a fund available for the purpose— Minister of Bonhill v. Orr Ewing, February 22, 1886, 13 R. 594, 23 S.L.R. 406; Minister of Peebles v. The Heritors, January 8, 1897, 24 R. 293, 34 S.L.R. 294; Minister of Banchory v. The Heritors, July 1, 1863, 1 Macph. 1014; Minister of Morvern v. The Heritors, November 22, 1865, 38 Scot. Jur. 49.
The Court granted an augmentation of four chalders and refused to insert any reservation in the decree, the Lord President observing that it was safer on the whole not to introduce the reservation suggested in respect that if the effect of such a reservation was merely to express what the law would imply it was unnecessary, and if, on the other hand, it meant anything else it might be mischievous.
Counsel for the Minister— J. C. Watt. Agent— P. Gardiner Gillespie, S.S.C.
Counsel for the Heritors— Constable. Agents— J. & J. Turnbull, W.S.
