A gift of pension out of a benefice found valid, though it did not take effect by possession during the life of the donor.
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Colonel Stuart and Commendator of Pittenween pursued Sir George Douglas, to hear the gift of a pension given by his umquhile brother, James Earl of Murray, forth of the benefice of Pittenween to be reduced. The reason of the summons was, because the said Sir George had never apprehended possession of the said pension before the decease of the Earl his brother, who was the giver thereof, et sic dans et retinens nihil inde ex hac donatione sequitur; and also it was alleged, that quemadmodum in feodis feodum absque investitura esse not potest, et in investitura apparet scripto possessio, ead. feudilex ex investitura, similiter ut ait Bald. ibid. quod similiter in pensionibus, quia omne jus possessoris-in possessione dependit; et manifesti juris est pensiones super beneficis constitutas per possidentem beneficia non adherere beneficio, nec cos qui in eo succedunt obligare, sed constituens tantum personam, et non rem ipsam, prout in cap. de prebendis et in jure canonica, non licet personæ pensionem in titulum dare ut in titulo, ut beneficia ecclesiastica sine diminutione conferantur; and so, by reason of the foresaid laws, the disposition of the pension made to Sir George by his brother, then prior for the time, could never oblige the successor, attento hoc maxime, that he got never possession during the time of the giver. It was answered by Sir George, That he had, conform to his pension and gift thereof, obtained two sundry decrees against the immediate successors of the Earl of Murray, disponer thereof, viz. against Sir James Balfour, then prior, and then against Mr James Haliburton Provost of Dundee, who succeeded after Sir James; and also he had made interpellation against the tenants and feuers, the time of the Earl giver of the said pension, and had obtained protestation against them, as the same was shown in process; and that their apprehending of real possession could not make his pension better or worse; et similitudo illa quæ ducta fuit a feodis et investitura ad pensiones et earundem possessionem non tenet, quia feuda transeunt in heredes et non pensiones, et quamvis large sumend. feodum dicitur beneficium et sic pensio potest applicari ad feudum, quia possessio beneficii, non possessio feudi, presente argumentatur, tamen consequens ex præmissis non potest inferri, quia pensio neque beneficium neque pars beneficii ullo modo dici potest, et hoc legibus et juribus prædilictis, et nulla ratio neque lex auferri potest prout allegabat. The Lords, after long reasoning at the bar, in præsentia regis, found the reason of the summons irrelevant, licet magna pars in contraria fuerunt opinione.
