Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
Hugh Maxwel of Dalswinton v. Maxwell of Garnsalloch and Others
Date: 21 November 1699
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Arbruchell reported Mr Hugh Maxwel of Dalswinton's declarator against Maxwell of Garnsalloch, Kilbean, and other heritors of the parish of Kirkmaho, that the pursuer has right to a proportional part of the kirk, conform to his valuation and theirs; and that Garnsalloch demolish his new seat, erected only in 1607, and restrict it to the quantity and size of his old seat, &c.
Alleged,—That they had immemorially possessed their seats, and so prescribed a right to the same; and, for Garnsalloch's bringing out his seat, he had an ancient burial-place before it, and had only extended his seat upon his own ground so far as that went.
Answered,—Church-seats are inter res religiosas, and so cannot prescribe, because not in patrimonio et commercio. 2do. A burial-place does not obstruct hearing the minister; but to build a seat, with pillars and a cover, precludes all behind them in that gavel. 3tio. It is offered to be proven, that, at the last reparation of the choir, it was agreed that Dalswinton should get a larger proportion for the accommodation of his tenants, because he contributed a third part of the expenses.
The Lords shunned to determine the first point, whether one might not prescribe the right of a seat as well as any other civil interest, and thought they might; as also considered that a church cannot be so exactly divided by arithmetical proportion, but sometimes one of a lesser interest might have a great share in the church, either because of his great quality, though his rent be small, or that he has many people living on his ground, or that another heritor, of more considerable rent than he, lives in another parish, and so is not so concerned: But the Lords fixed on the other two points; and found Garnsalloch must restrict his seat to what it was before the 1699; and, before answer, allowed the heritors and other witnesses present at the agreement made with the tradesmen for repairing the church, to be examined anent what was then communed to be given to Dalswinton for his proportion, in respect he was at the greatest charge in repairing it. Some of the Lords inclined to think that Kilbean could not transfer or alienate his room in the church to Garnsalloch, but that it passed only cum territorio, and with the lands; but this was not decided. See Dirleton's Doubts and Questions, voce Prescription, Where loca publica prœscribi possunt.
