Consequence of difference between the valued duty and tack duty.
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In the Earl of Winton's case with the Archbishop of St. Andrew's, claiming teind of Kirkliston, at least the tack-duty, and refusing to accept of the valued duty, Sir G. Lockhart was positively of opinion, that the valuation led of these teinds in anno 1634, could not prejudge the standing tack thereof, albeit the then Abp. of St. Andrew's, to whom the tack-duty was payable, consented to the said decreet of valuation; because he being only administrator of the benefice, he might indeed bind himself, during his own incumbency, and possession, but he could not wrong his successors. For here the valued duty was far below the tack-duty, and so was an evident dilapidation, and diminution of the rental of the benefice, which is prohibited by the 101st act. Parl. 7. 1581. As also he thought the same valuation might yet be quarrelled, and was not prescribed. 1mo, The Bishops from 1637 till 1662 were non valentes agere, contra quos nulla currit præscriptio. 2do, By the restitution of Bishops, in the first act of Parl. 1662, they are restored to all they had right to in 1637; but ita est, the said tack-duty was due to them in 1637. He thought also, the Minister's augmentation would not deduct of the said tack-duty, because the said augmentation was not obtained by way of a legal sentence, but only imposed with consent of the heritors. As also, that the annuity would not be allowed to the Earl here, because of the 15th act, 1633, exeeming Bishops' teinds from payment of the King's annuity. As also that the fiall of 80 merks could not be deducted, because by the gift of the fiall, it was allocated, and laid on a special subject, different from their teinds;viz. forth of the feu-duties of Winchelburgh, and so it could not affect the teinds of Kirkliston, nor be retained out of the tack-duty thereof. Albeit it is thought commonly, that Bishops are empowered by our acts of Parl: to set liferent tacks, at least 19 years tacks, of their teinds, or other rents of their benefices, (as by 1617. C. 4. and others). Yet now there are sundry who question it, in respect by the Bishops' submission to the King in 1627, and the King's decreeet arbitral thereon in 1628, Church-men seem to be restricted, that they do not prejudge their successors in office. And on this ground, Young, Bishop of Edinburgh, intented a reduction against Ellies of South-side, of a tack of his teinds set to him by Wise hart, the immediate preceding Bishop, for 19 years; and his reason of reduction was, that the teinds were valued before the tack, and that no Bishop can set a tack of valued teinds for a less duty than the valuation. And they say it was decided in favours of the Bishop, by the Commissaries of Edinburgh, in January 1680. Vid. 20th March 1683, a similiar case, No. 31. p. 7956. It is certain that Bishops must set their tacks, with consent of the Chapter, by act 15th, Parl. 1621. But some go a farther length, and think that Bishops may set tacks, both for their life-time, and for 19 years, to begin to run after their death. For any ordinary beneficed person may set for his life-time, and three years thereafter. Act 200, Parl. 1594.
Where there is a tack of Bishops teinds yet running and not expired, Quær. If the Bishop can set a 19 years tack of these teinds, to commence and begin at the expiration of the current tack, which if allowed would tend to a clear dilapidation, and mightly would anticipate the successor's livelihood? Sir Robert Sinclair thought, if the Bishop lived till the old tack expired, and the new tack began, and was cloathed with possession, then the same was valid; but if he died before, that the tack fell, and might not subsist, being collatum in tempus indebitum.
If a Bishop may lawfully discharge teind. tack-duties for 19 years to come in prejudice of his successor, albeit he should die long before the 19 years do run out?
