Hamilton Executor of Bishop of Galloway v. John Harries
1683.
March. Case No. No 255.
The act 1669 found not to apply to the revenues of Bishops.
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In a pursuit at the instance of the Executors of the late Bishop of Galloway, for some teinds whereof he was titular, alleged for the defender, That five years being elapsed since the teinds pursued fell due, the libel is not relevant, unless it be proved by the defender's oath, that these teinds are resting, conform to the late act of Parliament concerning the quinquennial prescription of ministers' stipends. Answered for the pursuer, That the said act concerns not the revenues of bishops, but only the stipends of stipendiary ministers of the inferior clergy, upon this presumption, that the latter having small provisions, will not probably let their stipends lie long over unpaid; but that the teind belonging to the bishop as patron would no more prescribe against an ecclesiastic than against a laic titular. Replied, The rent of any benefice may be called a stipend; and by the act 20. Sess. 3. Par. 1. Cha. II. poinding for ministers' stipends is applicable to any ecclesiastic benefice.
The Lords sustained the answer made for the pursuer.
Harcarse, (Prescription) No 762. p. 215.*** P. Falconer reports this case:
In the action pursued by Isobel Hamilton, executor to the deceased Bishop of Galloway against Herries of Maybie, for certain teind-duties due by the defender to the Bishop before his decease; it was alleged for the defender, That this action was prescribed by the act of Parliament 1669, anent prescription of ministers' stipends, not being pursued within five years after they became due; and it being replied, That that act concerned only ministers' stipends, which in effect were alimentary, and were presumed not to lie over unpaid, but could not be extended (being a correctory law) to Bishop's or other titular's teind-duties; the Lords found, that the act did only extend to ministers' stipends, or teinds due to the inferior clergy, but could not be extended to teind-duties due to the Bishop, or other titulars.
Fol. Dic. v. 2. p. 118. P. Falconer, No 62. p. 41.*** Sir P. Home reports the same case:
Isobel Hamilton, as executrix to the Bishop of Galloway her father, having pursued John Herries of Maybee for his teinds, parsonage and vicarage, the years 1661, 1662, and 1664, of the lands within the parish of Traqueer, as being a part of the bishopric; alleged for the defender, that by the 9th act of his Majesty's 2d Parliament, concerning prescriptions, it is provided, that ministers' stipends not pursued for within five years after the same are due, shall prescribe in all time coming, except it be offered to be proved that the same are due resting and owing, by the defenders' oaths, or by a special writ under their hands, acknowledging what is resting owing; and therefore, the defender cannot be liable for the teinds, unless it were offered to be proved by his oath, or by writ, that the same are still resting owing. Answered, That the defender is not in the case of the act of Parliament, which is only as to stipends payable to ministers, but not as to teinds to which the Bishop has right as titular; the Bishop in that respect being in the case of other titulars, who has right to the bygone teinds or tack-duties, does not prescribe in less than 40 years; and it was so decided at the instance of this pursuer against Linn of Larg, See Teinds. Replied, That the teinds and other duties payable to bishops are in the same case of ministers' stipends, they being all considered as beneficed persons; so what is statuted in the one is understood to be statuted in the other, unless the contrary were expressed; and albeit there were any difference as to that particular, as there is not, then the bygone teinds will be considered as mails and duties of lands which by that same act prescribes quoad modum probandi, not being pursued for within five years; and was so decided in the case of Scott against Ballantine, and in the case of Sir Francis Scott of Thirlestoun, titular of the teinds, against Bannatyne, See Teinds: And the practick adduced by the pursuer does not meet the case; because the question there was of the titular's right to the teinds, which does not prescribe in less than 40 years as to the duties in time coming, but only for bygones, which prescribe against titulars as well as ministers or tacksman. The Lords repelled the defence, and found that the act of Parliament did only extend to ministers' stipends or teinds due to the inferior clergy, but could not be extended to teind-duties due to bishops or other titulars.
