Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Mr Lewis Dunlop, Minister of Skeen,
v.
The Heritors thereof

Date: 9 February 1675

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In anno 1648 there was a decreet of locality of the kirk of Skeen, in which a part of the tack-duty due to the parson of Kinkell (which parsonage is annexed to the Deanery of St Andrew's,) was allocated to the minister, and hath been so possessed till now. This minister pursues the heritors for the local stipend; a part whereof is the vicarage. They allege, 1mo. That they are not liable to the minister; because, by the Act of Restitution of Bishops, they and their deans are restored to all rights and possessions they had in anno 1637, when they were expulsed: so that the heritors are liable to the dean of St Andrew's; and the minister must apply himself to the commission for a new locality. It was answered, That, albeit the Act of Restitution would exclude the minister's interest as to the tack-duty due to the dean, yet that Act cannot be extended to the benefit of a possessory judgment, or decennalis or triennalis possessor, attained by the minister after the Act of Parliament; so that he, having bruiked seven, ten, or more years after the Act of Restitution, by virtue of his presentation and decreet of locality, he is preferable in hoc judicio possessorio, till, in petitorio, the dean reduce the minister's right, or declare his own: and here the Dean concurs, and alleges, There is sufficient free teind in the parish, both to give the dean his full tack-duty, and likewise the minister his whole stipend. The Lords found the allegeance for the minister, of seven years since the restitution, relevant in possessorio; but did not prefer both the dean and minister, upon sufficiency of teind, which is only competent to the commission for plantations.

Vol. II, Page 320.