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Scottish Court of Session Decisions >>
William Carstairs v Vanse of Barnbarrow. [1706] 4 Brn 642 (15 February 1706)
URL: http://www.bailii.org/scot/cases/ScotCS/1706/Brn040642-0134.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
William Carstairs v. Vanse of Barnbarrow
Date: 15 February 1706
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Mr William Carstairs, Principal of the College of Edinburgh, against Captain Vanse of Barnbarrow. Mr Carstairs, as one of the Queen's chaplains, having a gift of the emoluments of the chapel-royal, pursues Mr Vanse for his teind-duties, payable to the prebendaries of the chapel, conform to an old tack liquidating it to £453 Scots yearly.
Alleged,—His predecessor has another tack obliging him to pay £400 to two ministers, and only £53 or eighty merks to the prebendary, so he can be charged by Mr Carstairs, as come in the prebendary's room, but only for eighty merks, but if he will relieve him of the two ministers' stipends, then he'll pay him the haill quota of £453. And that this tack was ratified by the commission in 1618, and a prorogation for 100 years then given him.
Answered,—He was not concerned in that tack; which, as it was null, being set without the Bishop of Galloway's consent, so it never took effect, but only the other tack-, conform to which, the dean of the chapel-royal has been in possession of the haill £453 these forty years bygone, though a kirkman needs no more than thirteen years; conform to the rule of the chancery of Rome,—Triennalis et decennalis possessor non tenetur docere de titulo.
Replied,—That whatever favour kirkmen pretend to, yet Mr Carstairs does no service for this gift. And possession only infers a presumptive right, which can never be obtruded against plain positive titles, as are here produced; and that they were not sooner founded on, is because he has recovered them lately out of his tutors' hands; and it were a jest for John Doull, the agent, who has acquired the right to be archpriest of the collegiate kirk of Dunbar, and any lay lord of erection, to plead possession for a sufficient title, which was only introduced in favour of kirkmen. See Dirleton, tit. Backtacks and Prorogations; and Durie, 18th June 1629, Dunbar.
The Lords repelled the defence, and preferred Mr Carstairs, in respect of the bygone immemorial possession; and though seven years may introduce a possessory judgment in teinds as well as in lands, yet here, there being a preferable right, prescription was required to take it away; and that Captain Vanse could not prove that the tack he founded on had been clad with possession, and so taken effect, within these forty years bygone.
