Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Kerr v. Heritors of Yester [1867] ScotLR 3_296 (13 March 1867)
URL: http://www.bailii.org/scot/cases/ScotCS/1867/03SLR0296.html
Cite as: [1867] ScotLR 3_296, [1867] SLR 3_296

[New search] [Printable PDF version] [Help]

SCOTTISH_SLR_Court_of_Session

Page: 296↓

Court of Session Inner House Second Division.

Wednesday, March 13 1867.

3 SLR 296

Kerr

v.

Heritors of Yester.

Subject_1Augmentation of Stipend
Subject_2Decimae Inclusae Right.
Subject_3

Facts:

Circumstances in which held that an heritor had not shown such a prima facie case of possession under a decimae inclusae title as to justify the refusal of an augmentation.

Headnote:

This was an application by the minister of the parish of Yester for an augmentation of his stipend.

Gifford and Webster, for the Marquess of Tweeddale, one of the heritors, objected to any augmentation being granted, on the ground that the only lands in the parish which the minister pretended were unvalued were held by him under a title cum decimis inclusis. He founded on (1) a charter dated 9th May 1592, by “Walter Hay, provost of the collegiate church or provostrie of Bothanes, with advice and consent of James Lord Hay of Yester, patron of the said collegiate church, and of the other prebendaries thereof,” whereby he gave, granted, &c., to William Hay certain lands “ una cum decimis earundem inclusis que ab invicem nunquam separari solebant;” (2) a charter or disposition, dated 10th May 1592, whereby the said William Hay sold the said lands to James Lord Yester; and (3) a Crown charter of confirmation, dated 26th September 1592; whereby the before mentioned charters are ratified. The present Marquess is heir-male of Lord Yester, and he founded upon possession of the lands, without payment of minister's stipend, since 1592.

Watson, for the minister, argued, that the deeds produced did not instruct a good decimae inclusae title. The words “ et nunquam antea separatis” did not occur in the charters. Such a title can only be held when it has flowed from the regular clergy, which is not the case here.

The Acts 1567, c. 12, and 1592, c. 161, were referred to, as also the following authorities:—Ersk., 1, 5, 3; Officers of State v. Stewart, 20th July 1858, 20 D. 1331; Locality of Caputh, 3d June 1864, 2 Macp. 1133; Locality of Alyth, 7th Feb. 1810, F. C.; Locality of Carmylie, 23d May 1810, F. C.; and Lord Dundas, 22d June 1823, Shaw's Teind Cases, 41.

At advising,

Judgment:

The Lord President—The only question which we have to determine at present is, whether an augmentation shall be granted, or whether the heritor has shown such a prima facie case of the possession of a decimae inclusae right as to justify us in refusing the augmentation at once. The Court are all satisfied that the heritor has not shown such a prima facie case, and that the augmentation should proceed as if the objection had not been stated.

The stipend was modified at 18 chalders, leaving the question raised to be determined in the locality.

Counsel:

Agents for Minister— W. H. & W. J. Sands, W.S.

Agents for Marquess of Tweeddale— Gibson-Craig, Dalziel, & Brodies, W.S.
1867

About BAILII - FAQ - Copyright Policy - Disclaimers - Privacy Policy amended on 25/11/2010