If one can be made liable whose benefit was not intended.
Dunbars v. Mr John Hay
Date: 14 June 1623 Case No. No 1.
No reimbursement can be craved by the intrant minister for meliorations of the glebe made by his predecessor.
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Suspension for removing from manse and glebe of the Sub-Chancellor of Murray; Reasons, 1mo, Because by the laws of the Realm, and acts of General Assembly, it is statuted, that intrants to benefices shall satisfy the relict, bairns, and executors of their predecessors, or their nearest of kin, of the hail debursements made by them, or their predecessor, or by bigging, mending, meliorating the glebe, manse, and yards, before his entry thereto; and true it is, umquhile Mr David Dunbar, brother to the suspenders, paid to Mr Thomas Forbes, his predecessor, 1000 merks for meliorating the manse and glebe; and the said umquhile Mr Thomas Dunbar himself wared thereon, in his own time, 500 merks, which in whole being L. 1000, must be paid before they remove; 2do, They being in bona fide to possess while they had been satisfied, have laboured and sown the glebe, and so cannot remove therefrom while the separation of the crop; 3 tio, The charger has judicially referred himself to the Ministry what satisfaction he shall give to the suspenders, and while the Ministry determined, no removing; 4to, An ann is due by the laws of the realm and acts of the Assembly, to the relict, bairns, and nearest of kin, of the year after his decease, and he died in the end of September last, and so there is due the ann of the crop 1622 to the suspender as brother, and the glebe being a part of the benefice, the fruits of that crop will appertain to them, and they shall remove after separation. The pursuer conjoined the debursements and submission. Finds the letters orderly proceeded notwithstanding of the submission, and notwithstanding the fourth reason, and finds the glebe to be noways part of the ann; and notwithstanding the second reason, in respect of the charge of horning produced, dated 11th February 1622, before sowing, which put them in mala fide to sow; but the Lords declare they will have consideration of the quantity of profits of the glèbe, and increase thereof, when the same shall he pursued by the charger against the suspenders; and notwithstanding also of the first reason, except for the mending of the manse by the defunct in his own time, the expences whereof shall not exceed 400 merks, if there be an act, which the charger alleges, to be anent the refunding of the expenses by an intrant restraining the same to that sum, which the charger promised to produce, and therefore admit that part of the first reason, anent the defunct's expenses debursed in his own time, upon mending of the manse by himself, to the suspender's probation, and assignees a day to prove.
Clerk, Hay.
Fol. Dic. v. 2. p. 316. Nicolson, MS. No 65. p. 43.
