Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN BAIRD OF NEWBYTH.

Charles Stewart
v.
The Viscount of Kingstoun

Date: 28 January 1665

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Mr Thomas Turnbull, sometime minister at Morham, by a tack, dated the 30th October 1637, did set the teind-sheaves of the parish of Morham to Charles Stewart, grandchild to Francis, Earl of Bothwell, for Mr Thomas his lifetime, and 19 years thereafter, for payment of 600 merks of yearly duty. To which tack, Francis, Lord Stewart, father to the said Charles, consents, as patron, though he was not patron; and Charles, pretending right, in manner foresaid, ratifies a prior tack, dated in November 1633, whereby Mr Thomas had set to Bearford both parsonage and vicarage teinds of certain lands therein contained, for Mr Thomas his lifetime, and five years thereafter;—Bearford paying yearly to the parson, 282 merks yearly. The ratification is dated the 12th December 1640, which is seven years after the date of the tacks so ratified. Sicklike Charles, upon his foresaid right, makes a short minute of agreement with Beinstoun, upon the 1st December 1642; whereby it is condescended that the parsonage teinds of Mainshill, within the said parish, shall be rated yearly to be £60, which was to be paid to the said Charles Bearford. And Beinstoun, pretending right to the said teinds, by the foresaid agreement and tacks, pursues the Viscount of Kingstoun for spuilyie, of their teinds, for the crop 1664.

The Lords would not sustain the spuilyie, but restricted the same to a wrongous intromission;—notwithstanding it was alleged, That the tack set to Charles Stewart, was null, not being subscribed with consent of the lawful patron; Francis Stewart not being lawful patron, in regard his father was forefault, and the forefaulture disponed to the Earl of Buccleugh: and that the tack was null, being set by a parson for nineteen years after his decease, which he could not do; and therefore the tack is null, opecatione exceptionis vel replius, by 4th Act Parliament 22 James VI.

Which tacks and agreements the Lords would not take away in hoc judicio possessorio; and therefore decerned as aforesaid.

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