What Subjects may be carried by the Positive Prescription.
Alexander Ferguson v. Parishioners of Kingarth
Date: 1 February 1671 Case No. No 72.
The teinds of a parish found not acquirable by prescription, in opposition to the King's right.
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Alexander Ferguson being one of the prebends of the chapel-royal by his Majesty's presentation and Collation, pursues the heritors of the parish of Kingarth for the teinds, as being annexed to the chapel-royal, as appears by the books of assumption, and three presentations from the King produced. Compearance is made for the minister of Rothsay, who alleged that he had presentation to the kirk of Kingarth from the King, and collation thereupon, and so had best right to the teinds of his parish, because de jure communi decima debentur parocho; and as for the pursuer, he shows no right by any mortification of these teinds to the chapel-royal; neither can he make it appear, that ever he, or any other prebender, were in possession civil or natural thereof; 2dly, Albeit the prebenders had a right, the same is now taken off by prescription; because it is offered to be proved, that the minister hath been 40 years in peaceable possession before the pursuer's citation, which not only takes away the bygones, but the whole right, and establishes the same in the minister's person.
The Lords found the books of assumption, and the three presentations from the King, sufficient to instruct the pursuer's title, and found the defence of prescription relevant as to the bygones before the citation; but not to establish the right in the minister, or to take it from the chapel-royal as to years after the citation, and in time coming, in respect of the act of Parliament, providing that the King's interest shall not be prejudged by the neglect of his officers.
