Subject_1 SUPERIOR AND VASSAL. Subject_2 SECT. XXI.
Adjudication of Superiorities. - A Superior not liable to Parochial Burdens.
John Murray v. James Scott
Date: 20 February 1794 Case No. No. 94.
The superior is not obliged to relieve the vassal from any share of parochial burdens.
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In 1696, two-thirds of the lands of Nether Balcairn, with the teinds, and a corresponding part of the seat in the parish church, were feued out to Andrew Mitchell, who became bound to pay cess, and all “public burdens forth of and for the forenamit two pairt lands, according to the valued rent of fifty-five pound eleven shillings and twopence, as the proportion of the hail valued rent of ane hundredth fifty-three pound six shillings money foresaid, (Scots), whereto the hail lands of Nether Balcairn is valued, togidder effeirand to the forenamed two part lands”.
In 1792, John Murray, who had acquired the superiority of these lands, brought an action against James Scott, then in right of Andrew Mitchell, for by-gone feu-duties.
The defender stated, as a ground of compensation, a part of the money he had paid for rebuilding the parish church; contending, that not only was the expense of building and repairing kirks and manses in every case a joint burden upon superior and vassal, 1663, C. 21. but that, in this case, the feu-contract fixed the proportions payable by each; that the expense of building and repairing kirk and manse came under the description of a public burden; Stair, B. 2. Tit. 6. § 20. and that all doubt on the subject was removed by the understanding of the parties, who had, ever since the date of the contract, contributed jointly to parochial burdens. See Dundas against Nicholson, No. 22. p. 8511. voce Manse; 23d January, 1773, Bruce Carstairs against Greig and others, No. 66. p. 2333, voce Clause; 1791, Bayne against Watson, (not reported; see Appendix.)
The Sheriff repelled the defence; and an advocation having been brought by the defender, the Lord Ordinary decerned in terms of the Sheriff's interlocutor.
At advising a reclaiming petition, it was
Observed on the Bench: Unless, there is a special agreement to that purpose, the superior is not liable for parochial burdens He has no right to a seat in the church, and therefore is not obliged to support it.
The Lords refused this (4th February) and a second reclaiming petition, without answers.
Lord Ordinary, Abercromby.For the petitioner, Cullen, Hagart.Clerk, Home.
Fol. Dic. v. 4. p. 316. Fac. Coll. No. 107. p. 238.