Scottish Court of Session Decisions

Subject_1 PRESCRIPTION.
Subject_2 DIVISION VI.

Præscriptio decennalis et triennalis.

The Relict and Children of the deceased Mr Robert Rule, Minister at Stirling,
v.
The Magistrates thereof

Date: 23 July 1708
Case No. No 202.

Possessio decennalis et triennalis by a stipendiary minister, of a surplus duty, over and above the quantity of stipend contained in his decree of locality, was refused to be sustained as a sufficient title to pursue for payment of that surplus duty, in respect of the special decree of locality.

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In the action at the instance of the Representatives of Mr Robert Rule, against the Magistrates of Stirling, as administrators of Cowan's Hospital, for payment of L. 10 Sterling of yearly stipend for ten years, in use to have been paid for the space of thirteen years to former ministers of Stirling out of the teinds of Raploch, belonging to the hospital, over and above the quantity modified in their decreet of locality, and withheld from Mr Rule all the ten years of his incumbency;

Alleged for the defenders; The minister of Stirling's stipend was concluded by a decreet of locality, which doth not affect the teinds of Raploch; and the presumptive title of decennalis et triennalis possessio, being effectual only to ministers who have no other title in their person, cannot avail the pursuers, as representing Mr Rule, who had a decreet of locality, to which presumption must cede, 24th February 1681, Dr Leslie contra the Minister of Glenmuck, No 200. p. 11001.

Answered for the pursuers; Thirteen years possession is a presumptive title to any minister, though he be a stipendiary; seeing, 1mo, The reason of that possessory privilege, viz. Because churchmen are supposed ignorant and negligent of their rights, whereof they are but liferenters, and these rights are subject to be lost in the change of incumbents, doth equally hold in the case of stipendiaries and beneficed persons; 2do, Any stipendiary minister may, notwithstanding his decreet of locality, get an augmentation of stipend from the Commission out of the free teinds of his parish, or enjoy a mortification; and thirteen years possession of the teind-duty claimed, is upon the matter a tacit augmentation, or perhaps was mortified to such a pious use. The decision 1681, betwixt Leslie and the Minister of Glenmuck, No 200. p. 11001. concerns the case of a minister who had been thirteen years in possession of the teinds of his parish, jure parochi, whose possession was ascribed to a decreet of locality afterward produced; because a promiscuous possession could not be extinguished and applied to different titles. But here a minister having uplifted his stipend, contained in a decreet of locality, by virtue thereof, and a superplus duty beside for thirteen years, that thirteen years possession must be imputed to a distinct title by mortification, or a decreet of augmentation, or the like, which law presumes to be lost; and how many ministers in Scotland have both localities and separate titles for additional stipend?

The Lords sustained the pursuers title of decennalis et triennalis possessio, as sufficient, notwithstanding of the special decreet of locality. But thereafter,

November 1708, upon a reclaiming bill given in by the defenders, and answers made thereto by the pursuers, the Lords altered their former interlocutor, and repelled the pursuers allegeance, founded upon decennalis et triennalis possessio, in respect of the decreet of locality, to which the presumptive title must cede.

Fol. Dic. v. 2. p. 114. Forbes, p. 273.