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The Minister and Kirk Session of North Leith v James Law of Hillhousefield. [1724] Mor 15654 (28 February 1724)
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[1724] Mor 15654
The Minister and Kirk Session of North Leith v. James Law of Hillhousefield
Date: 28 February 1724 Case No. No. 53.
Teind found payable at the rate of the highest fiars.
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The pursuers, as having right to the teinds of Hillhousefield, which, by a decree of valuation, in the year 1631, were ascertained to seventeen bolls and a half of bear, insisted against Mr. Law for payment of the teind-duty since the year 1704, at the rate of the highest firs.
It was pleaded for the defender: 1mo, That though per errorem he had paid those teinds till the year 1704, yet, having they discovered that he had an heritable right to them, upon which he was infeft, and which was intimated to the pursuers, he refused to make any further payments; and they had not, since that time till now, claimed these teinds; he was therefore entitled to the benefit of a possessory judgment.
2do, Though he were liable for the teinds, yet they could not be rated at the highest, but at the Commissary or second fiars; which are looked upon as the standing rule for Ministers' stipends, and teinds payable in victuals.
It was answered, to the lst, That the defender's infeftment was in virtue of a precept of clare constat from Heriot's Hospital, in which, of course, the teinds were thrown in with the lands; and his plea upon this right could mean no more than to delay the Minister and Kirk Session and put them to the expense of a reduction. And further it was contended, That the privilege of a possessory judgment was not competent in an action for teinds; Stair's Institutions, Lib. 4. Tit. 17. § 3. which holds in a more particular manner when Ministers have an interest.
To the 2d, it was answered, That there was no law which made the Commissary fiars the rule either for Ministers' stipends or any other titulars' teinds; and further, that, by the custom of the parish of North Leith, and the neighbouring parishes, the highest fiars were payable to the Ministers for their victual.
The Lords repelled the defences, and decerned for payment at the highest fiars.
Act. Ja. Graham, sen.Alt. Jo. Spottiswood.
Edgar, p. 44.
