Whether annuity of teind be due by one infeft cum decimis inclusis?
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The Laird of Renton having obtained decreet against Mr. Mark Ker for the teinds of Fernieside, he suspends, on this reason, That he ought to have retention of the annuity of the teind which he had paid, and whereto he had right. The charger answered, that there was no annuity due out of their teinds, because he was infeft cum decimis inclusis, which are not liable for annuity. The suspender answered, That there was no exception in the act of Parliament 1623 of teinds included.
The Lords recommended the matter to be settled, this being a leading case, in relation to the annuity of teinds included; but they thought that annuity was not due of teinds included; because such lands never having had the teinds drawn, there is nothing to constitute teind due for them, either by law, paction, or possession; and so where no teind is, there can be no annuity: And also, because the ground granting annuity to the King, was because the King having an interest in the teinds, after the Reformation, and the titulars pretending also right, did surrender the same in the King's favours, and submitted to him, who confirmed the titulars' questionable rights, and gave the heritors the benefit of drawing their own teinds, upon a valuation; and therefore the annuity was appointed to be paid out of the teinds to the King, but the surrender did not bear, “teinds included.”
