Scottish Court of Session Decisions

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

Jean Blair, Relict of umquhile Alexander Ferguson
v.
The Parishioners of Kingarth

Date: 3 February 1674

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Jean Blair, being assigned by her husband to a decreet conform, obtained at his instance, against the parishioners of Kingarth, as having right to the teinds, parsonage and vicarage, of the parish, which was a prebendary of the Chapel Royal; she did thereupon insist against the heritors for their vicarage teinds.

It was alleged for Stewart of Kilchattin, one of the heritors, That he ought to be assoilyied, because he had right, by progress, to a tack granted by Mr Archibald Sinclair, who was then prebend of the Chapel Royal, of the whole parsonage teinds of his lands for years yet to run; and, by virtue thereof, had been in possession of his whole teinds, parsonage and vicarage; so that, unless the pursuer can allege that her cedent, by virtue of his right, had decennalem et triennalem possessionem, the pursuer could pretend no right.

It was replied, That vicarage and parsonage were distincta jura of their own nature, and a tack of the parsonage could not include the vicarage; so that there was no necessity to prove decennalem et triennalem possessionem, Kilchattin having no title or interest in the vicarage.

It was Duplied, That albeit, in the greatest part of Scotland, parsonage and vicarage teinds are distinct and separate rights, yet, in the Western Isles, the Bishops within their quarters, and parsons presented to a parsonage only, by virtue of their office, without mentioning any thing of vicarage, have right thereto, and their tacksmen: likeas, by the committee of plat, the minister of Kingarth did get an augmentation and locality of £40 out of the vicarage teinds, wherein the prebend was called and compearing.

The Lords did find, That albeit, within the Bishop's quarters, there was no distinction of parsonage and vicarage, that being a particular custom in the Lewes as to the Bishop's quarters, yet the prebend of Kingarth being presented both to parsonage and vicarage, which were distinct rights of their own nature, as tacksman of the parsonage only, not mentioning the vicarage nor the prebendary in general, did not comprehend the vicarage; and so repelled the defence, and sustained the summons, in respect of the reply.

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