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Scottish Court of Session Decisions >>
Frierland v Laird of Orbiston. [1681] Mor 10763 (16 June 1681)
URL: http://www.bailii.org/scot/cases/ScotCS/1681/Mor2510763-063.html Cite as:
[1681] Mor 10763
Parsonage teinds found not to prescribe as vicarage teinds.
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One Frierland a minister pursues Orbiston for the teinds of certain lands, who alleged, Absolvitor, by prescription, he having bruiked the lands free of paying any teind immemorially. It was answered, That parsonage teind being established by public law, and not being local or customary by the custom of diverse places, as vicarage is, prescription cannot take away that law, unless it had been universally in desuetude; for albeit some lands be free of teinds, as minister's glebes, and the teinds which did of old belong to the Cistertian order of friars, yet there the common law is taken off by an exception introduced by the canon law, which then was in vigour when the lands were mortified to that order, and so must continue as the rule thereof. It was answered, That prescription by the canon law doth take place by immemorial possession; and if prescription do not liberate from the payment of teinds, it will be due for thirty-nine years past; for it being an annual prestation every year, it is taken off by a several prescription of forty years, so that not only the right of teinding should remain, but forty years bygone teinds should be due, albeit the heritor hath bona fide enjoyed and consumed these teinds.
The Lords found the prescription not to exclude the right of teinding; but found the private interest of this or private ministers to be excluded thereby quoad præterita, before the defender was put in mala fide, as being fruits consumed bona fide upon a colourable title of exemption.
