Scottish Court of Session Decisions

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

Alexander Burnet
v.
William Gibb

Date: 9 June 1676

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In a spuilyie of teinds, at Burnet's instance, as having right, by a tack from the Bishop of Aberdeen, to the teind sheaves of the lands within the parish of St Nicholas, whereof Footsmyre, belonging to the defender, was a part;—it was alleged, The tack could give no right to the teinds, being of madder herbs and roots, whereof no teinds can be due; neither parsonage nor vicarage.

It was replied, That the pursuer's author did take a tack of his whole lands, whereof this Footsmyre was a part, and so could not evite the same by inclosures, and making it a yard for herbs only; which is not lawful for heritors to do, in prejudice of titulars or tacksmen, who have been in possession.

The Lords found, that an heritor may take in his lands by inclosure, and neither sow the same with corn, nor put in bestial, which may yield vicarage teinds. Which was hard in general; seeing decimcæ are patrimonium ecclesiæ; and heritors taking tacks cannot invert and frustrate the titulars altogether, unless they be liable for damage and abstraction; which might be of a general concern and prejudice: albeit in this case there was a singularity, that the Footsmyre was a great myre, which could not be sown until it was drained by art and expense; and albeit it first was sown with corns, and a tack taken of the teinds, yet the same not continuing to be profitable, it seems reasonable the heritor might inclose it, and make it a yard for herbs and roots, which, in law, is not liable either to parsonage or vicarage teinds. But the vote run upon the general.

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