The Laird of Innernytie v. Mr William Nairn, Minister of Capoch
Date: 24 January 1677 Case No. No 5.
A patron granted a presentation to a man, and, after his death, to his son. Found, that the presentation was ineffectnal quoad the son's right, after the patron's death.
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In a double poinding, raised and the instance of the Tenants of Russil, who were pursued for their duties by the said parties, it was alleged for Mr William Nairn, That he ought to preferred; because, after the death of Sir William Stewart, who was Prebend, presented in anno 1664, he had a right from the Bishop of Dunkeld to the said prebendary, and rents thereof. It was answered and alleged for Innernytie, That, notwithstanding, he ought to be preferred; because, the gift and presentation, granted in anno 1664, which was long prior to the, Minister's right, was not only made to his, father, but, failing of him by decease, to his son, who now pursues; and, by virtue thereof, his father did posses, during his lifetime, and the Innernyties since his decease, and so had the benefit of a possessory judgment; but, albeit they were contending upon right, yet they ought to have preference; because the Bishop, who granted their right, being undoubted patron of the prebendary, which was not a benefice of cure, being neither a collegiate kirk, nor liable to any ecclesiastical service, the Bishop, as he might have granted a joint right to the father and son, and longest liver of them two, so he might lawfully grant a right to the father during his life, and, failing of him by decease, to his son, as is ordinary to all Bishops to grant a right of the Clerk's office of Commissaries to father and sons; likeas, the King, as patron of the Chapel Royal, doth grant such right to laick persons, neither can this be called a dilapidation of the benefice, in prejudice of the Bishop's successors, seeing they have only nudum jus presentandi, and do not thereby take away any of the rents of the benefice. It was replied for the Minister, That, notwithstanding, he ought to be preferred; because, after the death of Sir William Stewart, the benefice was then vacant, and his son, having only possessed by the space of three years since, cannot crave the benefit of a possessory judgment, as if his father had been only liferenter, and he fiar, and so might make use of his possession, to defend as in a possessory judgment, seeing his father had a full right, by his presentation, to the whole benefice, and the son had no pretence of right but by sub stitution, which can never defend him, seeing that were undoubtedly to dilapidate the benefice, in prejudice of the Bishop's successor, who, upon decease, or vacancy by demission, hath a full right to grant a new presentation; and the act of Parliament, against dilapidation of benefices, hath no such exception; and, if it were otherwise, a present Bishop might substitute twenty persons to one another, and might prejudge all his successors; and for the rights granted to Commissary Clerks, it cannot be obtruded; because, that is only an office of Court, and profits arising from personal service; neither can presentations granted by the King to prebendaries of the Chapel Royal to laick persons.—The Lords did consider this presentation, and finding that Innernytie's right was only by a substitution, failing of his father by decease, which the law doth not allow, seeing thereby all succeeding Bishops might be prejudged of the benefit of presentation, which is a part of the right of a bishop-rick, albeit it was not a benefice of cure; they did prefer the Minister; and likewise found, that Innernytie could not make use of his father's possession, and thereby crave the benefit of a possessory judgment, it not being of the nature of liferent right and fee, granted to a father and a son.
Fol. Dic. v. 2. p. 47. Gasford, MS. No 945. p. 622.*** Stair reports this case.
The Bishop of Dunkeld being patron of a prebendary, gave presentation thereof to Sir William Stewart of Innernytie, and thereafter to John his son. Sir William possessed it during his life, and his son some years after, who paid the Minister's modification out of the Prebend's benefice to Mr William Nairn, Minister, who discharged him as Prebend. Thereafter the Minister takes a presentation to the prebendary; and in a competition betwixt them, the Minister alleged, That Innernytie's presentation, in so far as it contains a substitution to John after his father's death, was null, disposing of a benefice not vacant, and an unwarrantable dilapidation of the Bishop's benefice; for if he might substitute one person to the present incumbent, he might substitute an hundred, and so exclude all his successors. It was answered, That a conjunction of two was ordinary and warrantable to endure to the longest liver; and this was the same in effect, and that the Minister had homologated and acknowledged Innernytie's right. It was replied, That the Minister's discharge was of his local stipend, and before he was Prebend himself.
The Lords found the substitution null, and preferred the second presentation.
Stair, v. 2. p. 498.*** This case is also reported by Dirleton.
A Presentation being granted by a Bishop to a prebendary, in favour of a person during his lifetime, and, after his decease, to his son; the Lords found, in a multiplepoinding, and competition betwixt the persons substituted in the said presentation, and another Prebend provided by the succeeding Bishop, by the decease of the first Prebend, That the substitution, contained in the presentation foresaid, did expire by the decease of the father, and that the substitution was void, in respect the Bishop could not, in prejudice of his successor, grant a presentation in the terms foresaid, bearing a tailzie and substitution.
Reporter, Castlehill.Clerk, Mr John Hay.
Dirleton, No. 440. p. 215.
