Designation of the Manse. - Form of designing Manses.
Marshall v. Carnegie
Date: 20 June 1605 Case No. No 2.
Lands inclosed and planted about with trees adjacent to a feuer's house, may not be designed for a manse.
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Mr John Marshall, minister at Brechin, having obtained a designation of a manse and glebe, and charged for the same, his charge was suspended, upon allegeance that there were vicar lands within the parochin; and so the defender's lands, being bishop's lands, could not be designed. Thereafter replied, That the lands contained in the suspension were parts and pertinents of the barony of Dun, lying within the same, set by the Lairds of Dun, past memory of man, was found more relevant than the reason founded upon an old possession of the vicar's, and a tack set by this present vicar, within these 22 years, in the Laird of Dun's minority. Thereafter it was alleged, That the designation and charges should be suspended for an acre of land, because it was adjacent to the feuer's dwelling-house, environed with high dykes on all sides, and planted with trees round about, so could not be designed as arable land. Which reason was found relevant, and admitted to probation, because the Lords thought they would not allow designations of a man's orchard, or planted and dyked inclosure, to be arable land to the minister. Thereafter the reason of suspension being, that the land designed was mortified of old to an alterage, and the hail alterage and tenements and lands pertaining thereto were given to the Town of Brechin, and confirmed in Parliament, and so pertained to the Town, and could not be designed as vicar's land or bishop's land; and the Town of Brechin, admitted for their interest, adhered to the reason; it was answered, That the reason was not relevant for the suspender, because the minister offered him to prove, that the suspender had taken infeftment of the said land from the Bishop, and had paid him mail and duty, and so could never allege to any modification or right competent to any other party; and the Town of Brechin, being admitted for their interest, in a suspension, behoved either to assist the pursuer or the defender, and so alleging the mortification, which was destructive of the minister's designation and charge, and of the suspender's infeftment, their allegeance could not be respected; in respect whereof, the Lords found the minister's answer, of the suspender's accepting of an infeftment from the Bishop, relevant. Lastly, The suspension bore, that the suspender offered him to prove, that such particular land being vicar's land, was more ewest to the manse, and so should be designed before his land. It was answered by the minister, That he, in fortification of his designation, offered him to prove, that the land designed was more ewest to the manse than the land contained in the suspension, wherein he should be preferred in probation. I reasoned for the minister, That, for two causes, the minister should be preferred; 1st, Because he had a designation standing, affirming the land designed to be the most ewest kirk-land; which testification was given by them who were appointed and authorised to that effect by the act of Parliament; and therefore it was more agreeable to reason to admit his allegeance to his probation, in fortification of that which was already tried by the ministers and the most honest men of the parochin, and testified by writ, than to admit the suspender to prove by witnesses the direct contrary of their testification; 2dly, If this should be found relevant to the suspender, and he should prove by witnesses, that there were other kirklands more ewest, and, in respect thereof, the designation should be suspended simpliciter, thereafter the minister designing the land which is in this judgment proved most ewest, the feuer thereof not being now called when he shall be charged upon a new designation, will suspend, alleging that the land first designed is more ewest than his land, and his allegeance being admitted to his probation against my designation, and he proving the same by witnesses, the minister's letters shall be suspended simpliciter, and so he shall never get an effectual designation. The Collector answered, That the Lords were always in use to admit the feuer's reason, that there were kirk-lands more ewest than the lands designed to probation, in respect whereof, without any answer either to the reason or the inconveniencies aforesaid, the Lords found the suspender's reason, that there were other kirk-lands mair ewest, relevant, and admitted the same to probation.
