[1583] Mor 7938
Subject_1 KIRK PATRIMONY.
Subject_2 SECT. I. Nature of this species of Property.
Parishioners of Cumnock
v.
Laird of Caprington
1583 .March .
Case No.No 11.
Found in conformity with Vicar of Bowton against Cockburn, No 6. p. 7935.
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In the acsion of double poinding pursued betwixt the parishioners of Cumnock and the Laird of Caprington, as donatar to the escheat of the Laird of Cumnock, the Laird of Caprington alleged, that he ought to be answered and obeyed, because the Laird of Cumnock had tack and assedation of the teinds of the kirk of Cumnock, set by Hamilton, parson thereof, first a nineteen year's tack, and a seven year's tack, and a liferent tack. The nineteen year's tack being produced, compeared one of the parson's setters thereof, and alleged, that the same was null of the law, and that Caprington could have no action by virtue of the same, because it wanted the solemnities requisite of the law in a nineteen year's tack, which were the seal and consent of the bishop and chapter, without which there could not a nineteen year's tack subsist. It was answered, that the parson had set the same, and subscribed it, and by a contract bound and obliged himself to set it; and as to the rest of
the solemnities, which were the common seal, and the consent of the chapter, he left that to be purchased by Cumnock himself; and in the mean time, Cumnock became in possession by virtue of the same, and the parson had received his duties from him, et sic nullo pacto contradicere potent proprio facto. To this was answered, by reasoning among the Lords, that whatsoever was done by the parson's consent, it might derogate to the law, et jus publicum privata illius conventione tolli non potuit, et ubi carta forma jure statuitur in actibus hominum illud privato alicujus pacto tolli non potest, de qua re vide Bald. L. 29. C. De pactis, and so the party might be ay heard to propone a nullity of the law against the thing that is done by his own consent et imperite. Allegebant advocati in L. 4. § 6. D. De re judicata, quod non dicitur aliquis condemnatus nisi justa sententia condemnatus fuerit, et L. 4. D. De exercitoria actione, ubi plures sunt proposita magistri sub conditione ne alter sine altero quid gerat, si aliter gestum fuerit non tenet. The Lords, after long reasoning, found by interlocutor, that albeit the nineteen year's tack was not perfect, and wanted the solemnities requisite of the law, yet the setter thereof, in so far as he had bound himself to do the same, and had received the duties of the tack, could not be heard to say any thing against it in judicio possessorio.
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