A minister having got a grass-glebe designed from lands which were of old part of the vicar's glebe, the proprietor's relief found not to be confined to the other feuars of the vicar's glebe, but to extend to all the heritors of church lands in the parish.
Click here to view a pdf copy of this documet : PDF Copy
Part of the old vicar's glebe of Peebles having been designated to the minister of that parish for a grass-glebe, William Laidlaw, the proprietor, brought an action for proportional relief agaist the other heritors of kirk lands.
In this action appearance was made for Ann Eliot, a proprietress of church lands, who contended, that Laidlaw's right to relief ought not to extend to the whole heritors of church lands, but should reach only to the other feuars of the vicar's glebe.
Answered: After the reformation, the protestant minister or reader, by the statutes 1563, C. 72. and 1572, C. 48. was declared to be entitled to a certain portion of the glebe of the former parson or vicar. By the act 1593, C. 165. where there was no old glebe, all the other kirk lands in the parish were made liable to designation. And by 1594, C. 202. it is declared in general terms, that “the feurs, possessors, and tacksmen, out of whose lands the manses or glebes are designed, shall have relief of the remanent parochiners, wha are feuars, possessors, and tacksmen of kirk lands, lying within the said parochin pro rata.” Although the old glebe, therefore, is still primarily liable to designation, yet, in terms of this clause, the proprietor is entitled to a general relief from all the heritors of kirk lands; and the rule is a just one, as all of them have been equally benefited by the ancient inheritance of the church. It was accordingly so decided 12th February 1635, Cock, No. 32. p. 5150. See also Stair B. 2. T. 3. § 40. 3d January 1745, Fergusson against Glasgow, No. 38. p. 5157; 12th December 1755, Dury and Black against the Minister of Dunfermling, No. 40. p. 5161.
Replied: The act 1593, C. 165. allows the designation out of the church lands only “where there has been nae glebe of auld, or where there has been some of auld, yet it be far within the quantity of four acres of land;” and the manner in which the act 1594, C. 202. is worded, clearly indicates that the right of relief applies only to the case where, from their being no old glebe in the parish, or none of sufficient extent, the glebe is designed from other church lands. It is accordingly expressly said by Lord Stair, B. 2. Tit. 3. § 40. that “where old glebes of parsons are designed, there is no relief by other kirk-lands, except those who had feus of other parts of the same glebe; seeing, by the foresaid statutes, the feuars of old manses and glebes are to suffer designation, or to purchase new manses and glebes, so that these old manses and glebes do not infer relief.” And as there is no reasonable ground for distinguishing between a designation made from a parson’s glebe and one made from a vicar's glebe, it is fair to presume, that the case of Cock, founded on by the pursuer, has been erroneously reported.
The Lord Ordinary took the case to report on memorials.
The Court seemed to be unanimous, that the right of relief must be the same whether the designation be made from a parson's or from a vicar's glebe. But on the question at issue, there was considerable difference of opinion. A majority thought, that the act 1594 gave the pursuer a general relief from the heritors of church-lands; and on that ground, the court decreed in terms of the conclusions of the action.
Lord Ordinary, Swinton.Act. Ja. Gordon, Rose Innes.Alt. Ja. Montgomery.Clerk, Gordon.
Fac. Coll. No. 201. p. 462.
