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William Ker, as executor, confirmed to umquhile Mr Andrew Ker, his father, pursues the minister and parishioners of Cardine, for intromitting with his father's stipend of the kirk of Cardine, in anno 1652 and 1653, and for the annatine 1654; because his father died on the 22d of November 1653.—The defenders alleged absolvitor, Because he being colleague minister, placed with the defunct's consent, and the defunct being suspended by the presbytery, he got right to these years stipends, and obtained decreet against the heritors, and uplifted conform; and so was bona fide possessor cum titulo. 2do, He offered him to prove, by an act of presbytery, that at the time of his entry, he was provided to 800 merks of the defunct's stipend, by the defunct's own consent. And as for the annat, it was not confirmed, and could be extended to no more but the half of 1654.—The pursuer answered to the first, That the presbytery had no power to dispose of that stipend, by the act of Parliament 1644, because the defunct was only suspended ab officio; which makes not the kirk vaick, maxime seeing the defunct was reponed by the synod, and never deposed; and as to the decreet at the defender's instance, it was given without calling the defunct, whom he was in mala fide to misken. To the second, That the act of presbytery cannot prove, unless it had been subscribed by the defunct's own hand, matters of stipend not being the proper work of presbyteries, but proper for civil judges, especially, seeing the defunct was suspended for preaching for the engagement 1648: Against which that presbytery protested; and so the act being Eairtester, is the more suspected. To the third, The annat not being in bonis defunct, but indulged by the law, to the wife, bairns, and nearest of kin to the defunct minister, and so originally their right, though upon occasion of his service, the same needs no confirmation; and the defunct having right propria jure to the whole year 1653: Surviving both terms annat, signifying a year further, must be the whole year 1654.
The Lords repelled the first defence, and found the suspension of the minister not to make the stipend vacant; and had no respect to the said decreet, whereto the defunct was not called. They found also the second defence not probable by the act of presbytery; and found that the annat needed no confirmation; but that the annat did only extend to half a year more than the defunct had right to proprio jure.
