Scottish Court of Session Decisions

Subject_1 TEINDS.

Duke of Douglas
v.
Officers of State

1740, July 16.
Case No. No. 12.

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

At last the Lords determined the difficult question on the act 1633, the rule of valuing tithes where the parsonage and vicarage are separate benefices, and neither of them ever drawn, but stock and teinds possessed by the tenants for a joint duty, and a small silver duty immemorially paid for vicarage. I thought the parson could have no benefit by the smallness of the vicarage duty, and that therefore the true value of both, separate from the stock, behoved to be proven; and though I thought the case of the heritors favourable in the eye of the law, and would have made the rent the rule, if it could have been proportioned betwixt the parsonage and vicarage according to their true worth, without regard to the small vicarage duty, yet I thought that could not be extricated, and therefore thought the values of both behoved to be proven separate from the stock. However, the Lords found that the 5th part of the rent was the tithe parsonage and vicarage, 2dly, That the vicarage duty behoved to be deducted from that 5th, and the remainder was all parsonage tithe.—11th July 1739.

The interlocutor being reclaimed against, came to be considered, 16th July 1740, when we adhered;—and indeed upon considering the decreets-arbitral in 1629, I was more and more confirmed in the interlocutor, and that the several valuations spoken of where teinds were drawn, were meant a valuation of the teinds separate from the stock; but the separate valuation mentioned in the end of the act 1633, where there are different titulars of the parsonage and vicarage, (for which case no provision was made by the decreets-arbitral) was meant only to distinguish the value of the parsonage from the vicarage; and that in all cases the heritor should pay a fifth part of the rent for teind parsonage and vicarage; and the decreets bear expressly, that the King's case, when the teind was drawn, was given in order to bring it as near as possible to a fifth-part of the rent that might be paid for stock and teind, and that the heritor can have no benefit by the smallness of the vicarage teind-duty; and really all the inconveniency mentioned in the petition would equally hold if the parsonage and vicarage were but one benefice.