In Possessory Actions, Replies against the Defender's Right are reserved till Reduction. - Objections against Rights Granted by Ecclesiastics how Proponable.
The Bishop of Edinburgh v. Brown
Date: 13 July 1636 Case No. No 39.
In a spuilzie of teinds, the defender excepted upon a current tack from an abbot. It was replied, that the tack is null, as set in diminution of the rental, against the act 1581. The Lords found, that this ought to abide reduction, and was not competent by way of exception.
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The Bishop of Edinburgh pursuing spuilzie against. Gilbert Brown, and another defender, for the several teinds of their lands, and the said Gilbert Brown alleging a tack set to him by Mr Gilbert Gordon of Shirms, as abbot of New Abbey, by virtue whereof he had been in possession these 40 years bygone, for payment of his tack-duty allenarly; and the Bishop replying, that the tack could not defend him, except he should allege that the setter was lawfully provided to the abbacy. The Lords found the allegeance relevant to defend the excipient in this judgment possessor, without prejudice to reduce thereon prout de jure; seeing it was not probable, that the tacksman could have the setter's provisions in his hands and keeping; but whensoever he should be pursued therefor, for anulling of his tack in an ordinary pursuit, he might then do his diligence to recover that provision, after what legal manner he best might, and upon his own peril. And sicklike it being alleged for another defender, that he had a feu-infeftment from another lawful titular of his lands, cum decimis inclusis, by virtue whereof he and his predecessors have been, past memory of man, in peaceable immemorial possession of these teinds, for payment of the duty contained in his feu; and produced his feu to prove the same; against which the Bishop alleging that the feu could not extend to the teinds, because the teinds were not disponed by the dispositive words of the charter; and albeit in the clause of tenendas, the words, cum decimis, were casten in among the words of that clause, yet being done either negligently by the writer, or cautelously put in with other words in the common stile, and so slipped into the clause cum aucupationibus et venationibus, &c. and albeit the same be also insert in the reddendo, which bore, reddendo pro dictis terris, molendinis et decimis, such a particular sum, yet whatever is in any of these clauses, not being contained in the dispositive words, as the teinds are not, nor yet the mills, therefore the feu cannot extend thereto; and the excipient opponing his feu, clothed with possession past memory of man, contended that the same was sufficient to defend him in this possessory judgment, ay, and while it were reduced; specially these teinds being of the vicar's lands, which teinds were never in use to be led, but go ever with the lands and possessors thereof, and no other person ever pretended right thereto;—The Lords found the exception relevant, to defend the excipient in this possessory judgment, and would not annul the feu in this place upon that allegeance, in respect the reddendo bore clearly, The duty to be paid for the teinds, which words pro decimis were expressly insert in that clause of the reddendo. Item, In this process it being alleged for the L. Lochnivar, that he had a tack set to him by the President, being then Abbot of New Abbey, for terms yet to run; and it being replied, that the tack is null, as set in diminution of the rental, against the act of Parliament 1581, seeing it was set for conversion of victual into silver, at a small price; The Lords found this nullity ought not to be received by way of exception, but ought to abide reduction; wherein it behoved to be libelled, that the teinds paid victual of old to the titular, and were so rentalled, against which the defender would be heard, and would have time to come instructed to defend himself, which in this place cannot be done.
Act. Nisbet.Alt. Gilmore et M'Gill.Clerk, Gibson.
Fol. Dic. v. 1. p. 172. Durie, p. 814.
