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Archibald Duff of Drummuir v Mr Alexander Chalmers Minister of Cairney. [1769] Mor 5147 (28 February 1769)
URL: http://www.bailii.org/scot/cases/ScotCS/1769/Mor1205147-029.html Cite as:
[1769] Mor 5147
Archibald Duff of Drummuir v. Mr Alexander Chalmers Minister of Cairney
Date: 28 February 1769 Case No. No 29.
Presbyteries cannot design moss for the use of a minister.
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The ministers of the parish, of Cairney had, from time immemorial, enjoyed a servitude of casting peats in certain mosses, the property of the Duke of Gordon.
But, in 1767, the presbytery, upon a petition from Mr Chalmers the incumbent, setting forth that these mosses were exhausted, designed part of a moss belonging to Mr Duff of Drummuir, for the use of the petitioner and his successors, in all time coming.
This decree being brought under challenge by Mr Duff, it was pleaded for the minister, That the 165th act of Parliament 1593, which directs the extent of glebes, provides, “That the saids glebes be designed with freedom of foggage, pastourage, fewall, faill, diffat, loning, free ischue and entry, and all other privileges and richtes, according to use and wont of auld.” And the act 1663, c. 21. enacts, “That every minister have fewel, foggage, feal, and divots, according to the act of Parliament made in anno 1593.”
These statutes are express. The first ordains, that glebes be designed with freedom of fuel, &c. and the other, that every minister have that right. The power of designation is conferred upon presbyteries, in words as clear as those under which they are in the uninterrupted use of designing manses and glebes. Nor can that designation be limited to those parishes where the minister had already acquired a right of servitude by prescription; for, why make a law to vest in ministers what they already enjoyed? or, why oblige presbyteries to decree privileges already acquired? But, in whatever way the general point may be determined, the present decree of the presbytery must be good, since it is confessed, that the ministers of the parish of Cairney have been in the immemorial possession of a servitude of fuel.
Answered for Mr Duff; The powers now asserted to belong to presbyteries cannot be supported upon the statute 1593. That statute plainly refers to those parishes where any, or all of the privileges therein mentioned had been acquired by prescription; for if, independent of use and wont of auld, that is, of immemorial possession, every minister could have demanded a designation of fuel, he must, upon the same principles, have been equally entitled to insist for a designation of pasturage; but that this was not the case, is obvious from the subsequent statute in 1663, passed many years after, and empowering presbyteries to design grass glebes, or pasturage for a horse and two cows.
Upon the construction of the statute 1593, contended for by the minister, this last provision would have been superfluous; and indeed the same plea has been already over-ruled by the Court in the ease of the miniser of St Martin's, anno 1763.
‘The Lords found, that the presbytery were incompetent judges, and that their decree is funditus null and void.’
For the Minister, M'Queen.Alt. Lockhart.Clerk, Ross.
Fol. Dic. v. 3. p. 253. Fac. Col. No 89. p. 162.
*** This case is referred to in No 3. p. 5123.; but there is another case of the same date, viz. Heritors of the parish of Elgin against Troop, voce Manse, which appears to be the one alluded to; only the date, not the names are mentioned in the Faculty Collection.
