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The Earl of Eglintoun pursues the Laird of Cunninghamhead for the teinds of Peastoun; who alleged, Absolvitor for £.60 yearly, which, by decreet of the Plat, he paid to the Minister of Irvine, and produces the decreet. It was alleged, That where the decreet bore, “out, of the teinds,” it was a mere error of the Clerk, and disconform to the ground of the decreet, which was a tripartite contract, whereby the Earl of Eglintoun agreed for so much victual, out of his teind, beside what was to be paid by the town of Irvine and heritors; and the heritors obliged them, and their heirs and successors in these lands, to pay so much money; which cannot be understood out of their teind, they being obliged, as heritors, and the teind not being theirs, but the Earl of Eglintoun's, who was obliged so much out of his teinds, besides these obligations. It was answered, That this, being to lay a burden of stipend upon the stock, is most unfavourable, and the meaning thereof cannot be inferred, unless it had borne expressly, out of the stock; especially, seeing the teind was under tack, and it was ex gratia for them to pay any more than their tack-duty; but now when their tacks are expired, the Earl cannot crave the whole teind, and lay this burden upon the stock; 2dly, The Lords cannot alter the express tenor of the decreet of Plat, which was a Commission of Parliament.
The Lords found, That the tripartite contract, as to this, did not burden the teinds; and therefore, seeing the Plat could only decern out of teinds, they found, that, by this contract, the heritors behoved to relieve the teinds of this burden out of their stock.
