A spuilzie of teinds was elided by this exception, proponed by tenants, that they had paid to their own master, who was heritor of the ground. This was found bona fide payment, notwithstanding of an inhibition of those teinds served and intimated to them.
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In a spuilzie of teinds by Hepburn contra The Tenants of Fairniflat, the Lords found an exception proponed for the tenants, relevant to liberate them founded upon payment made by them to their master, viz. Robert Lighton, of the same teinds of the crop libelled, who had right thereto before the pursuer's right; which payment was sustained for the said tenants, albeit the pursuer replied, That this payment could not be sustained to liberate them, seeing their master's right could not so much as defend himself, if he would compear and allege, and so cannot defend them; for he would refer, as he presently refers, to his oath simpliciter, that his right is antedated, and so could not prefer him to the pursuer; likeas the master being admitted for his interest, in this same process, and proponing this defence to liberate the tenants, the Lords had found the said reply, upon the antedating of his right, relevant, which being so once found against himself, his passing from his interest, and now proponing it for the tenants, cannot make it more relevant for them, to elide the judgment, where the master had once compeared, and now will pass from his interest, and propone it only in the name of the tenants; and that they must be found in bona fide to pay their own master, who was heritor of the lands, for the teinds whereof this spuilzie was pursued, and who had paid to him a certain duty promiscuously for stock and teind together: Likeas the pursuer replied, They could not be found in bona fide to have paid, seeing, before their payment, the pursuer had served inhibition upon the same teinds; which inhibition was intonated to them particularly; after which they must be reputed to have paid mala fide, even as if they had paid after arrestment; and so he replied, That they paid after inhibition executed particularly against themselves; and to one who had not a right, but antedated, and which was already found in the process against their master; so the exception should be repelled; notwithstanding whereof the exception was sustaned, and the payment made after the inhibition found to be bona fide, being made to their master, who was heritor of the ground, albeit they never alleged that he was their master of any preceding year, or that they had paid him the duty of any other year before the year libelled, either for stock or teinds; but only that they had paid to him a certain duty for land and teind the year libelled, peomiscuously, as they had done divers years before to Graham of Fairniflat, their master, from whom this defender had acquired the right to the lands and teinds; likeas this same Graham was also author of the pursuer's right to the same teinds, and so was common author to them both.
Act. Stuart & Gibson.Alt. Hope & Mowat.Clerk, Gibson.
Fol. Dic. v. 1. p. 112. Durie, p. 320.
