Of facts inferring knowledge of, and consent to the right challenged. Effect of consent where the right is not known. Effect of legal steps passing of course. Effect of minority. Effect of payment.
Bishop of the Isles v. Schaw and Others
Date: 26 July 1631 Case No. No 17.
A member of a chapter having subscribed a tack let by the bishop, not as consenter, but as witness; this was found equivalent to his consent.
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In a reduction of a tack of the teind-fishes of the Isles, set to the defenders by umquhile Thomas Bishop of the Isles, upon these two reasons, viz. First, because the Bishop, setter of the tack, had no power to set the same, in so far as the Bishop of the Isles, immediate predecessor to the Bishop, setter of the tack controverted, had set another tack of the same teind-fishes to other persons, which tack was not yet expired the time of the setting of the tack libelled, neither is yet expired, and so the tack is set a non habente potestatem, and ought therefore to be reduced; it being alleged, That this reason was not relevant at this Bishop's instance, and that he had no interest upon this reason to reduce the tack libelled, seeing the same was clothed, and is yet clothed with present and continual possession, since the setting thereof; and that the prior alleged tacksman to the other Bishop, who only might have interest to quarrel the defender's tack upon that reason, compeared not to quarrel the same;—The Lords found nevertheless that this Bishop had interest upon this reason to quarrel the tack, and found this reason relevant, and sustained his interest; and so it was found by this decision, that the succeeding Bishop could not set a tack of any thing, whereof his predecessor had set a tack of before, which was standing then unexpired; and that the successor, albeit the party quarrelled not the same, had interest to reduce upon such reasons. The second reason of reduction, was diminution of the rental, because by the said prior tack, the Bishop had set the same for payment of a merk for ilk last of teind-fishes that should be taken; and this tack bore only the duty of 100 merks for all. This was found no diminution, seeing there was no constant rental libelled, ever to have been of these teind-fishes, which had taken effect; for this uncertainty of duty in the first tack, viz. of a merk for ilk last that should happen to be taken, was not such a definite special rentalled duty, as might make it appear to be a diminution, when the duty should be thereafter appointed to be 100 merks; for it might have happened, that there should not have been 100 last of fishes taken, quo casu it could not be a diminution of the rentalled duty, seeing there was no special certain determined duty, for which the saids fishes were rentalled before. And the tack being further quarrelled, because the same wanted a sufficient number of the chapter prescribed by the act of Parliament, to the bishoprick of the Isles, (which is an unprinted act) for one of the chapter had not subscribed as a consenter, but as a witness, and some others were not of the chapter, albeit they had subscribed as of the chapter; for some others had served the cures and charges of those kirks, the ministers whereof by the said act of Parliament were appointed to be of the chapter, and these consenters had not served that charge, and so were not to be respected as of the chapter;—The Lords assoilzied from this reason, and found that he subscription of that person as witness, who was of the chapter, was as sufficient as if he had expressly consented; and also sustained the consent of the rest, seeing the defenders offered to prove, that they were ever reputed to be of the chapter, and that they had these many years by-past consented to tacks, and other deeds done of the bishoprick, as those persons who had the charge of these benefices, required by the act of Parliament, and as of the chapter of that bishoprick; and albeit others served the cure, yet seeing the pursuer offered not to prove, that others were provided to these benefices, by lawful provisions, therefore the exception against the reason was sustained to maintain the tacks. See Kirk Patrimony.
Act. David Stuart.Alt. Nicolson & Mowat.Clerk, Gibson.
Fol. Dic. v. 1. p. 378. Durie, p. 601.
