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Mr Walter Whiteford being presented by the King to the Sub-deanry of Glasgow, together with the kirks of Calder and Monkland, that were parts of the Sub-deanry, sought letters conform. Alleged by Sir James Cleland, No letters conform upon the kirks of Calder and Monkland; because he and his author, the Earl of Haddington, were infeft in the patronage of the said two kirks, by two public infeftments, to which Mr Patrick Walkingshaw, Sub-dean for the time, consented; and so his infeftment, being conform to the 172d act of Parliament 1593, is valid. Replied, That ought to be repelled; because, the act 1593 is only extended to the patronage of kirks pertaining to the King; but the King was not patron of these two kirks, but of the Sub-deanry, whereof these kirks are parts and pertinents; and as the King could not have presented persons to these kirks, except they had been first dismembered from the Sub-deanry, and erected in several patronages, no more can he by infeftment dispone the patronages of them, except they had been dismembered from the Sub-deanry, which they never were. Duplied, There kirks needed not to have been dismembered from the Sub-deanry; because, the time of infeftment given to the defender's author, they were the whole Sub-deanry, the temporality being annexed to the Crown, and the spirituality consisting of these kirks allenarly. Triplied, These kirks were not then the whole Sub-deanry, but parts thereof, because the Sub-deanry is a title and dignity of the Chapter, distinct from these kirks, which remained at that time unsuppressed, otherwise it could never have revived, except it had been of new erected; but in 1617, the temporality is restored to the Chapters, which importeth that the Chapters were then standing unextinguished.—The Lords repelled the exception, and granted letters conform to these two kirks, as well as to the Sub-deanry.
Spottiswood, (Patronatus, &c.) p. 227.*** Durie reports this case.
Mr Walter Whiteford being provided, by the King's presentation, to the benefice of the Sub-deanry of Glasgow, and seeking letters conform thereto, and to be answered of the fruits of the benefice, and specially of the fruits of the kirks of Calder and Monkland, which were the only two kirks, and the sole patrimony of the benefice, except some few lands, feued for a small duty, whereof there was no benefit; compeared Sir James Cleland, and alleged, That this presentation by the King could not be sustained as a right, whereupon letters conform should be granted for the fruits of these two kirks; because, the right of presentation of these two kirks was disponed long before to the E. of Melross, who was infeft therein by the King's Majesty; to the which right Mr Patrick Walkingshaw, then Sub-dean and titular, consented, conform to the 172d act of Parliament 1593; likeas, Sir James, upon the Earl of Melross his resignation, was infeft in the same, and had presented persons to the kirk, who ought to be answered of the fruits of these two kirks, and not this pursuer, as presented to the Sub-deanry; for he alleged, That; if the Sub-deanry consisted of these two kirks only, as he alleged it did indeed, when the Earl of Melross acquired the same, viz. after the year 1587, at which time the kirk-lands of the kingdom were all annexed to the Crown, then his right of presentation behoved to extend to the Sub-deanry, the whole parts thereof, viz. the two kirks falling under the same, quia partes integrantes faciunt totum; and if the dignity of the Sub-deanry comprehended any other than these two kirks, he was content that the pursuer should have the same, but for the fruits of these two kirks, disponed in patronage before, as said is, as presented to the Sub-deanry, he could not have the same; for, albeit chapters and dignities of chapter-kirks were restored, yet it was with the exception of rights of patronage, and other rights lawfully acquired, and this excepted one was so; Ergo, &c. And the pursuer contending, That the right of patronage of these two kirks disponed, as said is, to Sir James Cleland, was not valid in law, seeing the same being incorporated, and making up the Sub-deanry, they could not be disponed by the King, upon the Sub-dean's consent, except they had been first dissolved from the Sub-deanry, or else that the patronage of the Sub-deanry had been expressly disponed by the King; for the King had no right ever of the patronage of these two kirks, as several Rectories, but only the patronage of the Sub-deanry, which comprehended these kirks; so that the 172d act of Parliament 1593, anent the titular's consent, had no affinity with the case libelled; for that act is only for patronages of several kirks and rectories, which were at the King's presentation before, and these kirks were never at the King's presentation; and so he replied, That the right of patronage could not stay letters conform:—The Lords found this reply relevant, and that the two infeftments of patronages of these two kirks could not hinder letters conform; but that the Sub-dean, presented by the King, ought to be answered of the fruit of these two kirks, and not the persons presented by Sir James to the said two kirks, in respect the same were not particularly dissolved, nor dismembered from the benefice of the Sub-deanry; neither was it found to be sustained, albeit having the Sub-dean's consent; and so, in this judgment of letters conform, the said two heritable rights were everted.
Act. Advocatus.Alt. Nicolson & Aiton.Clerk, Gibson.
Durie, p. 502.
