Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Mark Hume
v.
Tenants

Date: 22 March 1628

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In an action by Mark Hume, as assignee to the duties owing by the possessors of the lands pertaining to the Prebendary of Kelso, of certain bygone years, whereto the said Mark Hume was made assignee, by Mr Peter Euart, prebend of the said prebendary,—against the tenants;—the Lords sustained the gift and provision of the said prebendary granted to the said prebendary by the Earl of Hume, as patron of the provostry of Dunglas, whereof this prebendary libelled was a part; albeit it was alleged, that the said provision was null, being subscribed only by one who was affirmed to be patron, and not instructed; and which also, albeit it were shown that he was patron, yet could not be sustained, seeing it was not subscribed by the provost, whose subscription the defender alleged to be necessary to the gifts and provisions of all the prebendaries of this benefice. Which allegeance was repelled, except it had been alleged, that, by the foundation, the provost's consent is ordained to be given, and necessarily required to the gift of the said prebendaries; but here it is to be considered, that this allegeance was proponed by the tenants addebted to pay their duties, who had no right of retention.

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