A person having right to teinds, and using inhibition thereon, cannot turn out the possessor brevi manu, if he has any pretence of right.
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Berfoord and Binstoun pursue the Lord Kingstoun for spuilzie of certain corns; he alleged absolvitor, because he legally drew the same, as their teind, by virtue of his tack, from the present minister, and inhibition thereon. It was answered, 1st, That was not sufficient summarily to draw the defender's teinds, unless there had been a sentence on the inhibition, which is but a warning, and so must not infer removing, brevi manu ad vitandum tumultum. 2dly, If he had legally pursued them for a spuilzie, they would have alleged, and now allege, that they have tacks standing from the minister for the time, who, though deposed, yet lives; and all incumbents' tacks serve during their natural life, and no tack from the next incumbent prejudges during the life of the former, conform to an express act of Parliament.—The defender duplied, That albeit an act of Parliament required removing not to be summarily in lands, it did not so in teinds. 2dly, The pursuer's tacks are null without consent of the patron. The pursuer triplied, That they are standing cled with seven years possession, and their tacks are subscribed by the patron, Quadruplied, he was not then patron, but was standing fore-faulted unrestored. Quintuplied, It is sufficient coloratus titulus cum possessione, till the reduction; and the Lord Bothwell's son, patron, was after restored, whereby it revived.
The Lords repelled the defence, in respect of the pursuer's tacks, and found the defender might not brevi manu intromit, there being any pretence of title; but they desired the pursuer to restrict to wrongous intromission, and without oath in litem. See Spuilzie.
