Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Margaret Johnston
v.
Robert Stewart

Date: 14 January 1674

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Margaret Johnston, as executrix to her father, who was minister at Orphar, did pursue the said Robert for the vicarage of the lands, lying within the parish of Orphar, in Orkney, extending to two hundred merks yearly, for the space of seven years, during her father's service; he being presented to the vicarage of the parish; and thereupon had obtained decreet and letters conform.

It was alleged for him, That the presentation, and letters conform, could give him no title to the vicarage, unless it were instructed that it was a distinct benefice belonging to the patron, or that they could prove that the pursuer's father, or other incumbents before him, had decennalis et triennalis possessio of the vicarage teinds of the parish; which they were content to find relevant.

It was replied, That the minister's presentation being from the presbytery, who then were in use to present in place of a laick patron, having obtained letters conform, gave him a sufficient title; unless the defender would allege that they had right themselves to the teinds, or have been in possession by virtue of a tack, or other rights, flowing from those who had right to the vicarage: and if none can allege upon any right, all vicarages belong to the kirk jure ecclesiastico

The Lords did repel the defence, and sustained the minister's title, as being founded in jure, against the defender, who had no right, nor could allege that he was troubled at the instance of any other person who pretended right to the vicarage; and found, that vicarages as well as parsonages did, in jure, belong to the church, and those who are presented thereto, unless the patron or others can allege upon a valid right settled in their person.

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