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In anno 1649, all presentations were taken from patrons, and in place thereof they were declared to have right to the teinds, over and above the competent stipend to the incumbent; but by the 9th act Parl. 1661, That whole Parliament 1649 was rescinded, and particularly that act anent patronages; but it was declared, “That it should be lawful to laic patrons or heritors, to agree with the beneficed persons for tacks of their teinds, according to the laws of the kingdom, being but prejudice of the stipends modified, or to be modified to these beneficed persons: Declaring also, That the present Ministers, during their service, shall claim no right or possession to the teinds of their said kirks, more than they had formerly before this act rescissory, they having a sufficient maintenance.” By a posterior act in anno 1662, “All Ministers who came in without presentations, by virtue of the act of Parliament 1649, were ordained to call for presentations from their patrons, otherwise to be excluded from their benefice.” Mr. William Hay being admitted Minister of Cramond in anno 1655 did, according to the act 1662, obtain a presentation from the late Earl of Errol, and gave him a back-bond, “That he should give such right to the Earl of the teinds of his own lands as was consistent with the laws of the kingdom, and that by the advice of three advocates, it being always given within a year thereafter.” The Earl continued to possess his teinds without any duty, and no application was made by either party to these advocates. This Earl of Errol pursues a declarator upon the act of Parliament 1661, That this present parson hath no right but to his modified stipend, which he was in possession of before this act, and that the remainder of the teinds belonged to him as patron by that act of Parliament 1649; and the salvo in the act 1661 bearing, That the present Ministers should only have right to the teinds, as they had before the act rescissory, Ita est before that, they had only right to their stipend before the act, and the patron had right to all the rest of the benefice. The defender alleged absolvitor, because, after these acts the matter was agreed and settled betwixt the late Earl and the defender, that the Earl should give him presentation to all the fruits, which he did without reservation, except by the Minister's back-bond, and so this Earl can found nothing upon the act of Parliament, in respect of his unlimited presentation; neither can he found upon the back-bond, because it is but a submission limited to a day, within which it took no effect, whereupon the Ministers granted tacks to the several heritors of their own teinds, and cannot be urged to give a tack to the Earl. It was answered for the Earl, That in the back-bond there is an obligement and reference as to the manner and extent, viz. How far the Minister might lawfully give a right to the Earl of his own teinds, which related rather to the former, which was referred to lawyers, than to the obligement to give the Earl a right ?
The Lords found, That the Earl granting a presentation to all the fruits, without limitation, did exclude him from the benefit of the prior act of Parliament, except in so far as the same was reserved by the back-bond, which they found yet effectual, and decerned the Minister to give him a tack, but prejudice of his present stipend; and found the reference was only, how far by law the Minister might do the same, seeing there was a probable pretence of a simoniacal paction in this case, where the statute obliges the Earl to give a presentation; but the Lords did not determine that case, whether a tack granted to the patron by the entrant when he got his presentation, limiting his power to improve his benefice, were a simoniacal paction, or were valid by the law of the kingdom, as to which the act of Parliament hath only allowed tacks consistent with the law of the kingdom; so that unquestionably a beneficed parson after his establishment by collation and institution, may set tacks of the whole or any part of his benefice, without consent of the patron for his life-time, and five years thereafter: But the only question is, If he set such tacks to the behoof of his patron before his entry, when it is in the patron's power to reject him unless he grant such tacks, whether such a tack be lawful, or unlawful and simoniacal, which, if approved, would evacuate almost all the benefices in Scotland, and turn them stipendiaries, and that in favours of the patrons, who had no right to the teinds during the incumbency, and in prejudice of the Church, and discouragement of piety and learning, there being only a few parsonages in Scotland, which may be an encouragement to persons of better spirits and quality in the Ministry.
