An exception against a spuilzie of teinds, that the defenders had paid their old duty to the minister, for the year libelled, by cider of the pursuer's factor, sustained; although there had been an inhibition executed the year preceding; as it was not renewed for the year in dispute.
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In an action of spuilzie of teinds by the E. of Linlithgow against Menzies of Culterawis, the Lords found an exception relevant to elide, the spuilzie proponed, upon payment made by the defender, at command of the Chamberlain, to the pursuer, to the minister of the parish, of the old duty, the year libelled, which was in use to be paid to the same minister, for the same teinds, the years preceding, at command of this same Chamberlain, he being still Chamberlain, the same year libelled; which was found relevant, notwithstanding that the pursuer replied upon an inhibition, executed the year immediately preceding this year libelled; and which, he alleged, did interrupt the alleged use of payment; notwithstanding whereof the exception was found relevant, seeing there was no inhibition executed this year controverted; neither was it found necessary to the excipient to allege, that the Chamberlain had warrant from the pursuer to appoint the said payment, or that it was made of the pursuer's allowance; for the pursuer replied, That without that were alleged, it could not be sustained; that the Chamberlain might more prejudge his master in a spuilzie, than he might prejudge his master's warning, by receiving of duty after the same, without the master's allowance, which was repelled, and the exception sustained ut supra.
Act. Stewart.Alt. ——.Clerk, Gibson.
Fol. Dic. v. 1. p. 112. Durie, p. 271.
