Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by LORD KILLKERRAN, ADVOCATE.

James, Earl of Morton
v.
The Officers of State, and John, Marquis of Tweedale

Date: 28 February 1753

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This case is reported by Elchies, (Teinds, No. 35.) and in the Fac. Coll. (Mor. p. 10672.) Lord Kilkerran's note of it is as follows:—

“It was thought, however, in the case of vicarage teinds, though there be a modus decimandi with us, yet there is no such thing in parsonage teinds; and, therefore, let rental rolls have ever been so long paid, unless parties have consented and agreed to them, neither titular nor heritor are thereby tied. And so it has frequently been found between the College of Glasgow and the heritors, to whose teinds the College has right, particularly Sir John Maxwell and Roberton of Bed-lay; and that is an inaccuracy what we find in Stair upon this subject.

It has been said, that with us there is a modus decimandi with respect to vicarage; and it is but late that it was fixed, for several of the Lords were of opinion, where any vicarage was due, it was due of every sort of thing subject to vicarage; but the contrary opinion prevailed, which has ever since been followed, that where a certain sum has been in use to be paid in name of vicarage, no more can be demanded.

As to the 2d point in this petition, that the report of the sub-commission, as being only of the nature of a proof, cannot preserve it, would have been so found if there had been no more in the matter but prescription. But as here the heritors had taken tacks for a rent in a different species from the report, the Lords considered it as a dereliction, and, therefore, adhered.”