Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

The Minister of Lethindie
v.
The Officers of State

Date: 5 December 1716

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The minister of Lethindie pursues a modification and locality; and insists that certain feu-duties, whereof he and his predecessors had been in possession for many years, may be a part of his locality.

It was answered for the Officers of State,—That these feu-duties, whereof the minister alleges he was in possession, do not belong to the minister of Lethindie as minister; but, in time of episcopacy, the minister of Lethindie was chancellor of the bishoprick of Dunkeld, and enjoyed these feu-duties as such; which appears by a presentation granted to Mr. Young, his predecessor, some time before the abolition of episcopacy ; and the said feu-duties pass under the designation of chancery-duties to this day.

It was answered,—That the pursuer and his predecessors were decennales et triennales possessores, and, as such, had right to the chancery-duties, in as far as, by the 23d Act Parl. 1690, concerning patronages, whereby, in lieu of the right of presentation, the patron got the superplus benefit of the teinds of the parish more said superiorities, until redemption by the crown; but that right of the patrons again, was under this exception, in favours of ministers, viz. except where the said feu-farms are a part of the minister's modified stipend, or where the minister is, or has been, in the possession thereof for the space of ten years, which is the pursuer's case; and thereby he has right to what he has so long possessed. And as to the presentation by the Bishop of Dunkeld, supposing that it had been accepted, yet it is granted to Mr Young, as minister of Lethindie, and so is a natural and legal consequence of the minister's serving the cure there, and, accordingly, has ever since been enjoined by the minister as minister of Lethindie.

It was replied,—That during episcopacy, the minister of Lethindie was of course chancellor of the bishopric; and, in many other cases, dignities of the church were annexed to the charge of ministers in particular parishes : nevertheless the parish and chancellary had different patrons,—the bishop was patron of the chancellary, and the parish was of a laic patronage. But, by the abolition of episcopacy, and all dignities of the church, the right of the minister to the chancellary ceased ; and the feu-duties belonging thereto fell to the crown, 2do, It is true, decennalis et triennalis possessor has a presumptive right; but that presumption may be elided by a contrary probation, that the right is in another, as it is made evident in this case. 3tio, As to the act of Parl. 1690, it does not at all concern this case; for the clause in the act runs in these terms:—

“Whereas there are certain lands and annual-rents holden of the said benefices, and beneficed persons, from which patrons might have some benefit arising to them.”

Then the act proceeds to declare, that these superiorities shall belong to the crown, but reserving the feu-farms and feu-mails to the patron, till redemption, with an exception in favours of the ministers who have been ten years in possession of these feu-farms. So that the subject of that whole clause is concerning the superiorities of lands or annual-rents, which were formerly held of benefices, or beneficed persons: whereas the feu-duties which are the subject of the present question, never did hold of the minister of Lethindie, but was a separate benefice, by a different presentation. The act of Parliament did only respect such benefices as had superiorities or annual-rents holding of them, whereof there are several in Scotland. And, for further clearing this point, suppose the church of Lethindie were vacant, the laic patron would lead no claim to the chancellary-duties during the vacancy; or, suppose the minister had not been ten years in possession, the patron would have had no right to these feu-duties, by virtue of that act of Parliament.

The Lords found, That the office of chancellor did not belong to the laic patron of Lethindie, but to the bishop of Dunkeld, during episcopacy; and that the chancellary-duties do now belong to the crown, and ought not to be allocated as any part of the pursuer's stipend.

No. 162, page 226.