The Lords sustained the designation of a glebe, altho' it was not measured, because the designation bore that the measuring was hundered by the defender's servants who threatened the measurer.
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In a suspension raised by the L. of Kerse, against Mr Andrew Reid, minister at Alva, for his manse and glebe, the Lords sustained a designation of the glebe, albeit the same was not mett nor measured, to be four acres of land; because the designation bore, “That the metting was hindered by the servants of the L. Kerse, who boasted the metster, and would not suffer the commissioner appointed to design, to use the order of metting, required by the act of Parliament;” and whereby they were forced to make the designation of the glebe without metting, according to their estimation of the land especially bounded within the designation, which they esteemed to be within, and not to exceed four acres; neither did the suspender allege, that the same exceeded four acres; and the Lords also found, that there was no necessity to prove that the metting was hindered, as said is, by witnesses, or otherwise than by the designation itself, which proported and bore the same; and which they found sufficient to prove it; and, in respect thereof, sustained the same without any other necessity of probation. The Lords also would not admit the allegeance of improbation of the said designation, which the suspender proponed in this process; and would not receive improbation of the same by way of exception, seeing thereby ministers might be in the like cases prejudged in their bruiking of their glebes, if this should be admitted, for the same might and would ever be proponed against them; but reserved to the suspender his action, to call and improve the same prout de jure. In this process also, the Lords found an allegeance proponed for the minister relevant, bearing, “That the glebe-land controverted was kirk-land, in so far as the Abbots of Cambuskenneth had received yearly these thirty years bypast together, twenty shillings,” as the duty of these same lands from the suspender and his predecessors, which receipt of duty that space the Lords found sufficient, being proved, to infer that the same was kirk-land, without any other qualification; and in respect thereof, they repelled the reason, bearing, “That the suspender was infeft in the barony of Alva, holden of the king; and that this land has ever been bruiked these many ages past all memory of man, as a special part of his barony,” in all the particular parcels whereof he cannot be per expressum infeft, but may bruik the same that way, as part and pertinent; which was repelled, in respect of the foresaid reply, consisting only in the paying of the said duty to the Abbot thirty years. The Lords also sustained this other exception proponed for the minister against this reason, viz. That the same land was mortified to the Abbacy of Cambuskenneth by one Stirling, which mortification was confirmed by the King; which allegeance was also sustained and admitted per se as a several exception; and found no necessity that the minister should with the mortification allege also, that some possession was had of that land by the Abbot since the mortification or confirmation; neither was it found necessary that he should allege, that that person, viz. ——— Stirling, who mortified the land, was heritor of the same, and had right thereto, whereby he might validly and lawfully mortify it; or that the suspender's right to the lands of Alva, flowed from the said —— Stirling, and that he had been author in the same to the suspender; without one of which had been alleged, and joined with the mortification, the suspender contended, that the naked mortification, done by one who had no right to the lands mortified, and lying ever obscure, and never heard of these many ages, and never taking effect by any possession since the date thereof, could never take away the suspender's heritable right, seeing he also produced, where the suspender's predecessors had wadset the same piece land controverted per expressum under reversion, which reversion he produced, which evidently shewed that this same land pertained to him heritably as a part of his barony; which the Lords repelled in respect of the two several exceptions foresaid, which were separatim found relevant, and admitted to the minister's probation.
Act. Nicolson.Alt. Hope.Clerk, Hay.
Fol. Dic. v. 1. p. 351. Durie, p. 208.
