A prelate granted a pension out of his patrimony, not only cum potestate transferendi etiam in articulo mortis, but with the same power to the assignee. This pension, though given in prejudice of the successors of the granter, and in diminution of the rental and hurt of the kirk, was sustained.
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In an action betwixt the Minister of Kirkliston and Patrick Whitelaw, a pension being granted by the umquhile Bishop of St Andrew's to Mr John Arthur, Commissary of Edinburgh, cum potestate transferendi etiam in articulo mortis, with power also to that assignee, to transfer the same at any time, before that assignee's death, in the person of any other, who should also bruik the same, during the lifetime of him who should receive the last translation; which pension being transferred by umquhile Mr John Arthur before his decease, in favours of his wife, and she having transferred the same in favours of her son; who pursuing letters conform to the said pension; the Bishop of St Andrew's compearing, and alleging the nullity of that pension, as being given in prejudice of the successors of the granter thereof, and in diminution of the rental of the benefice, and to the hurt of the kirk; this allegeance was repelled, and the pension sustained.
Act. Hope.Alt. Mowat et Primrose.Clerk, Gibson.
In this above written process of Patrick Whitelaw, there was produced for the minister of Stow, a decreet given by the Commissioners of Parliament, appointed for modification of the minister's stipends, conform to the act of Parliament anno 1617; by the which decreet, the foresaid pension of L. 100, granted to the said Mr John Arthur, cum potestate transferendi, as said is, was appointed to remain with Mr John Arthur during his lifetime, and after his decease, so much of the said pension as was paid out of the parish of Stow, viz. L. 50 thereof, was ordained to be paid to the minister of Stow, for a part of his stipend in all time coming; which decreet being quarrelled by Patrick Whitelaw assignee foresaid, as null, because before that sentence, the said Mr John Arthur had transferred his right of the said pension to his wife, he being obliged to do the same to her, by an express clause contained in the contract of marriage made betwixt them; and so she not being called to that sentence, who was a party hurt thereby, and having right to the said pension, the said decreet could not be sustained; especially seeing the Commissioners, givers of that sentence by the act of Parliament, which was the warrant of their proceedings, had no power granted to them to take any man's right from him: Which allegeance was repelled, in respect Mr John Arthur the husband was called, and compeared in that decreet; and the Lords finding that this was a decreet of Parliament, they thought themselves not Judges to annul a sentence of Parliament so summarily by way of exception.
