Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 PROPERTY.

The Earl of Home, and other Heritors of the Parish of Eccles,
v.
The Earl of Marchmont, &c

Date: 7 February 1777

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The church of Eccles having become ruinous, the heritors agreed to rebuild it at the expense of near £400, and, for that purpose, entered into a contract with one of their own number. But this being objected to, by others of the heritors, as a plan too small, and unable to contain one half of the parishioners; and a suspension being presented to that effect, the Lord Kennet, Ordinary, 1st August 1772,—“Found, That it was so; and that a church would be necessary, capable of containing 1000 persons,—78 feet long, 37 broad, and 20 feet high; of which he appointed a plan to be made out, but without a steeple, except so far as was necessary for hanging a bell; and that it behoved to be seated, as well as built, by the heritors; reserving to any of the heritors or parishioners to contribute for an ornamental steeple, if they thought proper, without laying the burden upon such of them as do not choose to concur therein.” The church was built accordingly. The next thing was to divide it. After several meetings, the heritors could not agree. A process of division, therefore, was brought before the Sheriff, which, after some procedure, was attempted to be advocated.

In this process, it was established, by the opinion of the Judges, that the division of the area of a church must proceed according to the valuation of the different heritors: That such process was competent before the Sheriff: That, where there were lofts, it was right to divide these for family-seats among the principal heritors, and the back seats and low seats among their tenants, respectively, placing every heritor's tenants in one place: That, as to the lofts, or better seats, the patron was entitled to the first choice, as had been found in the case of Torpichen; (in the case of Torpichen, Lord Torpichen was superior of a considerable part of the parish, proprietor of a small part, and patron. The Lords found him entitled to the principal seat, in preference to Mr Gibson of Wallhouse, a greater proprietor, and having all claim competent to Lord Hopeton, another considerable proprietor;—4 New Coll., p. 13;) and the other heritors to their choice, successively, according to their valuations; and that the family-seats given to the heritors behoved to be added to the tenants' seats, in computing the share which each heritor was entitled to have of the whole area.

This day reclaiming petitions from both parties having been advised, with answers, the Lords refused both, and adhered.