The exception in the act 1606, restoring Bishops, was found to be understood of patronages, as well of mensal-kirks, as of those of which the presentation belonged to the Bishop.
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The Bishop of Dunkeld pursues the Lord Balmerinoch for reduction of the infeftment of the patronage of the kirk of Cramond, granted to his father by the King, by resignation of the said kirk in the King's hands by Peter, Bishop of Dunkeld, with consent of the Chapter, for two reasons; 1mo, Because the said kirk was a mensal-kirk, pertaining to the patronage of the bishoprick, which, by the law, both civil and canon, cannot be disponed from the bishoprick; 2do, The resignation was not subscribed By the most part of the Chapter living for the time. To the first reason, That the Bishop had no interest to pursue this action of reduction, because this kirk was disponed from the bishoprick by the resignation, and the King's disposition of the patronage thereof to the defender's father, and the said infeftment ratified in Parliament, wherein the Bishops were restored in anno 1606, wherein such dispositions of patronages, made by the lawful titulars and the King's Majesty, and ratified in Parliament, were specially excepted; to which it was replied, That the exception contained in the act of Parliament was to be understood only of patronages of kirks, whereof the presentation pertains to the Bishops, and not of their mensal-kirks.—The Lords assoilzied from the first reason.
Fol. Dic. v. 2. p. 49. Auchinleck, MS. p. 116.*** Durie reports this case.
1631. March 25.—In a reduction of a right of the patronage of the parsonage teinds of the kirk of Cramond, made by the King's Majesty to this Lord Balmerino's father, upon resignation of these teinds made by Mr Peter Rollock, Bishop of Dunkeld; of the which bishoprick the said kirk of Cramond was a proper patrimonial kirk, and the Bishop was not patron thereof, but the same was a mensal-kirk, pertaining to him; the reason was, that the mensal-kirks could not be disponed, and that there was no dissolution thereof in Parliament from the bishoprick, and that the resignation thereof made by the Bishop was not done with the consent of the most part of the Chapter, which was necessarily required thereto, and without which it could not be necessarily disponed. And the defender alleging, That his right of the patronage of this kirk could not be quarrelled; because, in the 2d act, Parliament 1606, whereby the Bishops are restored, special exception is made of patronages of kirks pertaining to Bishops, disponed by lawful titulars, and confirmed in Parliament; and this kirk of Cramond was resigned, as said is, by Bishop Rollock, being then lawful titular, in the King's Majesty's hands, and thereupon the presentation and patronage thereof were disponed to the Lord Balmerino by the King, which was ratified in the same Parliament 1606, and declared then by the Estates to be reducible upon no ground or cause, at no time thereafter. And the pursuer answering, That that exception extended only to patronages of kirks, which patronages were at Bishops' presentation, and not to the kirks pertaining in patrimony to Bishops, as this kirk libelled, which was not a kirk at the Bishop's presentation, but his own proper mensal-kirk, and so fell not under the exception; and, further, albeit the exception might extend thereto, yet that exception must be understood of kirks lawfully disponed, and makes not dispositions, which were not lawful, to become valid, if they were invalid, or had nullities before the confirmation; nam confirmatio nihil novi juris tribuit; likeas the act in that same Parliament, Salvo jure cujuslibet, gives warrant to parties having interest to claim their rights, notwithstanding of any act done in that Parliament, to any private person's prejudice; and by act of Parliament 1617, James VI. it is appointed, that the Lords of Session may judge upon writs ratified in Parliament, which they could not do, if that the confirmation supplied the defects and nullities thereof. The Lords found, that this exception extended to kirks pertaining to the patrimony of Bishops, which were so ratified in Parliament, as the exception requires, as well as to kirks at Bishops’ presentation, without distinction; and also concerning the nullity of the right, alleged confirmed in Parliament, if the confirmation excluded the party to propone any nullity or not; they found, that, in respect of the act of Parliament, which declares the Lord Balmerino's right to be irreducible thereafter, ut supra, they found the said right to be good, notwithstanding of the reason libelled, founded upon the said nullity, in respect of the tenor of the said act of Parliament; but the Bishop desired to be further heard herein.
