Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.

The Minister and Kirk-Session of North-Berwick
v.
Sir William Dick's Creditors

Date: 17 December 1663

Click here to view a pdf copy of this documet : PDF Copy

Mr. Archibald Turner, minister at North-Berwick, obtains decreet in anno 1657, against the heritors, feuars, life-renters, and other parishioners of the lands of North-Berwick; by which decreet, a church is ordained to be built at the said town of North-Berwick; and the place where it and the kirk-yard thereof should be, are also designed: to which effect they ordain the said lands and ground destined for that use, to be valued, rated, estimated, and approven by some indifferent persons appointed by the said commissioners for that effect, granting them commission for that effect; then ordain the heritors and proprietors of the said ground, designed for the said end, to denude themselves in the most effectual way that can be of the law, in favour of the rest of the heritors and parish of North-Berwick, and their successors: item, decern them, on their denuding themselves, to accept such prices as the commissioners appointed shall value their land at, to be paid them by the present heritors of the said parish, or those to come. Item, ordain the heritors foresaid, to convene themselves at such certain times and places, under the pain of horning, to choose stent-masters for the stenting of the parish, for the ends and uses foresaid. Item, For ingathering thereof, ordain that what stent-rolls shall be made by the heritors convening, that they be as sufficient as if the same had been by the whole heritors present, and consenting: item, Ordain them to make quiet payment of their proportions contained in the said stent-rolls. Upon this decreet, letters of horning are raised in anno 1661: and an act of the kirk session of North-Berwick in 1662, bearing, that some of the heritors, upon intimation made to them, compeared, for considering how the work might be perfected; and some absented themselves: that those that were present found by advice with craftsmen, that the said new kirk would need 4000 slates more, which would be 200 merks; for nails to the slating, forty merks; for thirty-six cartful of lime, at thirty shillings the cartful, eighty-one merks; for 400 feet of glass, at five shillings the foot, 120 merks; for nine windows, 120 merks; for six stones of iron, for glass bands, twenty-four merks; for twelve deals to be doors, for bell nails to them, for bands and locks to them, sixty merks; for a pulpit of wainscot, 100 merks, &c. all which, cast together, makes 1162 merks: and appoints Robert Acheson of Sydserf, and Patrick Hepburne of Craig, to cast the proportions on the heritors, according to the rule of assessments, that it might be furthwith collected: item, Appoints others to agree the cheapest they can with craftsmen, about the forementioned particulars. According to this act of kirk-session, the said heritors appointed, did give in a stent-roll made by them, whereby the lands sometime belonging to Sir William, and now to his creditors, were stented to L.256. Upon all which, the kirk-session, and Mr. Archibald Turner, minister there, charge Sir Ja. Stewart of Kirkfield, the provost, (it is a part of Camusbusnethen lands, that once belonged to my Lord Somervaill, called Cowdailie,) and the remainant creditors of Sir William Dick, for the said sum of L.256, as the proportion of the stent-money payable out of the lands and abbey of North-Berwick, which sometime pertained to Sir William Dick; and that conform to the stent-roll cast upon the parish, conform to an act of their kirk-session; which act proceeded on a decreet obtained by them against the heritors, in anno 1657. This charge, Sir Ja. for himself, and in name of the rest of the creditors, suspends: 1mo, Because the letters are general, founded on no decreet, bond, or other warrantable ground; as the very copy of the charge delivered to the suspenders, not condescending on any decreet or other ground whereon the said letters were founded, proves. As for their pretended decreet, obtained before the usurpers in anno 1657, they purposely suppress it, because, by act of parliament, all the lieges are allowed to quarrel these decreets, and that summarily by way of review, without necessity of reduction: item, Provided that whenever persons be charged on such decreets, that suspension shall always be granted upon caution: item, considering how much they have already exacted for that use: item, the arbitrary illegal way they have of exacting the same, the said letters ought to be suspended. 2do, The suspenders, upon a former charge, paid L. 360 to this use; and at the payment of it, the stent-masters collectors, now chargers, faithfully promised to demand no further of them for perfecting the said church; in respect of which promise the letters ought to be suspended. 3tio, The suspenders are not heritors of the said lands of North-Berwick, but only creditors, and so countable for their intromission; as even now, de facto, there is a process of count and reckoning depending at the instance of Sir William Dick's other creditors, against this suspender, wherein they refuse to allow him the sum of money already paid out by him, for building of the said church: and, therefore, till such time as the Lords determine in that, the suspender can neither be in tuto, nor in bona fide, to obey this charge, but behoved to suspend the same. 4to, The very decreet charged upon in 1657, ordains, that there should be a previous charge directed against the whole heritors of the parish, to meet and convene and stent themselves; but so it is, there was no previous charge before this stent; ergo, till such time there be a previous charge, the letters ought to be suspended simpliciter. 5to, In anno 1653, the chargers did take a great girnel-house from the suspenders, to preach in till the kirk were built, for which they promised to pay yearly L.40 of tack-duty, (which girnel they have ever kept since,) and therefore craves compensation thereof with this stent. At the calling of this suspension, either party declared that they would hold the copy of the suspension for a principal. To the L. 360 alleged paid,

Answered,—Ought to be repelled, because not instantly verified. As to the girnel-house, no compensation, quia non inter easdem personas; for it was the heritors that became obliged for the said tack-duty, and not the kirk-session, who charge now. As to that which is said of a previous charge, none is necessary, because the suspender compeared voluntarily by his chamberlain, Ja. Sandilands, and consented to the stent, as appears by the stent-rolls.

All which being considered by the Lords, they found the letters orderly proceeded, notwithstanding the reasons of suspension; and therefore ordained them to be put to further execution, ay and while the suspender made [payment] of the sum charged for, to Mr. William Walker, now minister there, and the kirk-session thereof.

Suspender, Ja. Stewart. Alt. ——— Signet MS. No. 43, folio 15.