Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION reported by SIR ROBERT SPOTISWOODE OF PENTLAND.
Subject_2 Such of the following Decision as are of a Date prior to about the year 1620, must have been taken by Spotiswoode from some of the more early Reporters. The Cases which immediately follow have no Date affixed to them by Spotiswoode.

Alexander Keith, Parson of Strabrock,
v.
James Gray and Thomas Carmichael

Date: 21 March 1633

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The Lords, in many causes, have found that the teinds are hypothecated for payment of the minister's stipends, in such sort that action will be sustained, at their instances, against any intromitters therewith, ever till they be paid. Conform hereunto, Mr Alexander Keith, parson of Strabrock, upon his provision and decreet conform, charged Mr James Gray and Thomas Carmichael, as intromitters with his teinds, for payment of twenty-eight bolls victual, and £100 in money, as a part of his stipend. They suspended upon these reasons. 1 mo, They were not intromitters with the teinds; but the right they had, both to lands and teinds within Strabrock, was only a wadset from Mr William Oliphant, redeemable upon the payment of their sums, containing back-tacks for payment of the ordinary annual-rents of their money: And so, they being only in use to uplift the back-tack-duty from Mr William, which is but their annual-rent, they cannot be charged by the minister for the teinds, but only Mr William and his tenants, who were in possession both of lands and teinds. Answered, They, by their wadset, having right both to stock and teind, and receiving the duty contained in the back-tack, both for stock and teind, it was in the charger's option to seek his stipend either from the tenants, Mr William, or yet from the wadsetters. The 2d reason given was, That the suspenders brooked the teinds, yet their right proceeds from Mr William Oliphant, who is tacksman to the charger, of the whole teinds of the barony of Strabrock, for payment of a tack-duty, and who has been still in use of payment of it; and so he could not charge the suspenders upon his provision, but should have pursued for the tack-duty, for which the suspenders are not liable, but only his tacksman against whom he may have personal execution for the same, but not against the intromitters. Answered, The tack-duty being a part of his stipend, he might charge either the tacksman or intromitters for the same. The 3d reason was, Albeit the suspenders were liable to the tack-duty, yet they can be no further subject thereunto, but to a proportional part thereof, according to the proportion of the land contained in their security of the said barony of Strabrock. Answered, They must be subject all that their teinds are worth, aye and while the tack-duty charged for be satisfied; and it were no reason to put the minister to seek the same from each one within the barony, according to the proportion of land he brooked; but let the suspenders, if they please, seek their relief off the tacksman, or yet off the rest of the possessors, as they may best. The Lords found the letters orderly proceeded, notwithstanding of all these reasons.

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