Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES FERGUSON OF KILKERRAN.

William Earl of Home,
v.
The Officers of State

Date: 28 July 1758

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This case is reported in Fac. Coll. (Mor. 10,777.) Lord Kilkerran has the following note of what was said by the Judges.

“July 28.—It was argued by Kaimes with his usual ingenuity and accuracy, that patronages were not capable of prescription; but to this I could not agree, as it is a matter on which our law writers seem to agree, and there is no pulling up that by ingenious arguments, that it had been more reasonable to be otherwise, nor is even that plain. Who doubts but a right to a burial place may be acquired by prescription? and the arguments against it are the same, or rather stronger, as in the case of patronages. There are other acts of possession, viz. with respect to the teinds; nevertheless I should have a great doubt, that an incumbent’s possessing on one act of presentation, would amount to a prescription. A second point was argued by Affleck, and Colston, and Kaimes, that the right in the crown to lands, and the right of the crown to patronages, were so far different, that the King was presumptive proprietor of all lands Jure coronæ, but otherwise in patronages, as is fully argued in the petition; that the rule in these is but nevertheless had this been the question, I should have been of opinion that the jus coronæ would have been a sufficient title; but neither of these questions are now to be determined, for that the third point seems to admit of no answer, that there was no possession here to infer a prescription, as the crown had right to present per vices; and therefore had right to present in two of the three for the crown; and the vote being put July 28, 1758, the Lords altered and preferred the Earl of Home seven to six.