Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL
Subject_2 SUMMER SESSION.

The Parson of Prestonhauch
v.
Ramsay, &c his Parishioners.

1676, and 1677.

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1676. November 28th.—Mr George Sheiel, Parson of Prestonhauch, pursues Sir A. Ramsay of Waughton, and his other parishioners, for the parsonage and vicarage teinds.

The defence as to the parsonage was upon standing tacks, &c. which see in the informations beside me. As to the vicarage, it was alleged absolvitor, because they have never, at least not these forty years past, been in use of payment of any other small teinds, but only for wool and lamb.

Answered, though use and wont regulates the possession of teinds, being various and local, yet he offered him to prove he or his predecessors had possessed all the several species of small teinds, from one or other of the heritors or tenants in the parish; which must be sufficient to import an obligement upon the other heritors, being obligatio individua. See the reply to this fully in the information.

This went to the Lords' answer; who found the defence of immunity by the space of forty years relevant, and that the incumbent's possession could only tie the payers, and not the other heritors; and sustained the use of payment of such quantities as were paid preceding the citation in this cause, to import the continuance of the payment of the same in time coming; and admitted the minister likewise to prove possession. See more of this infra, No. 593, in July 1677.

This restricting of the payment of vicarage only to the payers, Sir George Lock-hart called a great strain of law, and incongruous to the principles of it.

Advocates' MS. No. 510, folio 267.

1677. July 7.—In the action pursued by the minister of Prestonhauch, against Sir A. Ramsay, and other his parishioners, mentioned supra, in November 1676, No. 510; in obedience to the interlocutors, having produced tacks of the parsonage teinds, for sundry 19 years yet to run; and for proving the use and wont of the vicarage, probation having been led by both parties, this day the tacks and depositions came to be advised.

It was objected by the minister's advocates against our tacks, that they were null by the 200th act, Parliament 1594, and the 4th act, in 1617, declaring all tacks set by beneficed persons without consent of the patron longer than for their lifetimes and three years thereafter, null. And this was such, being set in 1609, without the consent of Buccleuch then patron. 2do, It contained a conversion of victual into money, viz. setting a price at a merk the boll; which is a species of delapidation, and prohibited by the 11th act, in 1585.*

Whereunto, it was answered that, esto these were nullities, (which is denied,) yet the tack could not be now quarrelled thereupon, because they were prescribed, never being questioned as null within the space of forty years, it being now sixty-seven years since their date.

Replied,—The 12th act in 1617 anent prescription of rights, seems only to speak of real rights of lands, and not of tacks of teinds. 2do, It cannot extend to any but such as are proprietors: not to incumbents and administrators, whereof one for personal respects, may suffer the great prescription to run, as particularly in this case. Mr John Dalzeel was 50 years altogether minister at this kirk, and he not quarrelling it, it is nowise just that his silence or connivance should prejudge the place or his successors, who were not valentes agere, and so prescription could not run against them.

Duplied,—The act of Parliament was opponed, which was general, et ubi lex non distinguit nec nos; that it was the great fence and bulwark to all our properties;

* See the epitome of Sir D. Carnegie of Pittarrow's decreet for abstraction of mill multures, elsewhere.

Vide act 21, Parliament 1649, where nothing doted to pious uses can prescribe; and by the Boman law, cenlenaria præscriptio was requisite, contra Ecclesiam Romanam; Novella nona. Dury, 7th December, 1633, Church of Abersheldor and Gowrie. Infra, July, 1677, No. 631. Vide Novellam 111, et 131. See 20th of March, 1683, Bishop of the Isles.

that to scan it nicely, or loose a pin, were as dangerous as to reverse acts of indemnity.

The Lords, after some demur, sustained the answer of prescription, and found the tack could not be now quarrelled after 40 years, for lack of the patron's consent.

The minister offered to prove interruption within the 40 years, to take off our prescription. It was craved he might condescend. The Lords found his reply of interruption relevant, and assigned him a day for proving thereof.

Then we entered to debate, that, esto he should prevail in proving interruption, yet we behoved to be assoilyied from the pretended nullity of the tack, for want of the patron's consent; because the foresaid acts of Parliament prohibiting such tacks, non procedunt annullanclo actum, sed adjiciendo aliam pænam. See Vinnius, Quæs-tionum Selectarum Illustrium, lib. 1, Quæst.l; see Dury, 9th November, 1624, Mr Thomas Hope and his 31inister, and the lawyers cited there; see our information. Vide Bartolum, ad L.20, act Prætor. D. de Novi Operis Nuntiatione, Num. 3. But the President stopped it, because being a point in jure, after they saw what was the event of the minister's probation of interruption, they could hear it any time: and it was most rational to reserve it, and lay it over till that time; because if the minister prove not legal interruptions, there will be no need of debating these points.

As to the probation anent the vicarage-teinds, the Lords, at much leisure having read the long depositions of the witnesses taken for both parties, found the Mains of Waughton liable for 24 shillings, as the price of each teind-lamb, preceding the term of, at which time this action was intented; as also, find Waughton, Houston, Fantasy, Myreside, Smeiton, and Prestonkirk, liable in payment of teind-wool, teind-lamb, teind-greises, and cheese, or 18 shillings for the price of ilk teind-lamb, and 8 pennies of ilk fleece of wool; and that Martle is liable for teind-wool, lamb, and greises; and that Linton, Eistforton, &c. and all the lands within that parish, arc liable in teind-wool, lamb, and greises, except Overhauls and Patrick Temple's lands, which have hitherto only been in use to pay teind-wool and lamb, and excepting any other lands that are possessed cum decimis inclu-sis, or are Temple-lands or Cistercian, or otherwise privileged, and so simply free; and decern each of them to pay the respective species foresaid of small teinds, ipsa corpora, since the entering of the summons, and in all time coming; as also, to pay to the minister the tack-duties respective contained in their standing tacks of the parson age-teinds produced. Vide supra, No. 586, Minister of Nig, [June, 1677.]

What are accounted vicarage? See Hadington, 19th January 1611, Bailie of Monkland.

Advocates' MS. No. 593, folio 291.