In a pursuit against an heritor for teinds, a transumpt of a tack and a decree of prorogation of it, to which the defender's authors had not been called, were found no sufficient title, since the original term of the tack was not expired.
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Lord Rankeilor reported John Telfer, late Bailie of Leith, against Sir Thomas Dalziel of Binns. The teinds of the parishes of Kinneil and Carriden, belonging to the convent of Holy Cross, or Halyryndehouse, there is a tack of them set by the Commendator to Hamilton of Grange, and three of his heirs successive, and for nineteen years thereafter, for L. 77 Scots of tack-duty; the ministers pursuing an augmentation in 1618, they get large and competent stipends allocated to them out of these teinds, over and above the tack-duty; for which the Commission for plantation of churches grants Grange, the tacksman, a prorogation for 202 years after the expiration of his tack. Grange's estate being now adjudged, and the right of them conveyed to Bailie Telfer, he pursues Sir Thomas Dalziell of Binns for the teinds of his lands lying in Carriden parish. Alleged for him, I am in possession by virtue of a title from the Bishop of Edinburgh, and you produce no sufficient interest to claim my teinds, in so far as you do not produce the tack set by the Abbot to the Hamiltons of Grange, but only a decreet of prorogation of that tack, which being only a relative writ, non creditur referenti nisi constet de relato; and as to the transumpt of the tack produced, it is null quoad me, and no more than a copy, because my authors are not cited thereto, nor yet the titular of the teinds. Answered, In re tam antiqua as eighty years ago, the decreet of prorogation must be a sufficient probation, seeing it mentions the tack was then produced, which is probatio probata; and as for the decreet of transumpt, you have homologate it by your predecessor's giving a bond to Grange, the tacksman, to pay the teind, if the same should be liquidate by a decreet. Replied, If the years of the tack were expired, and the prorogation begun to run, the production of the decreet of prorogation would be a sufficient title in this pursuit; but seeing the nineteen years adjected to the liferents in the tack are not yet expired, it can be no title for bygones till the tack itself be produced; and the bond given by Binns' predecessor cannot support the tack, seeing it relates to what shall be constitute by decreet. Now, that is not yet done, nor can be, till a valid title to the teinds be produced. The Lords found the decreet of prorogation and transumpt not a sufficient title, unless the tack had been expired, and the years of the prorogation commenced; though these would be good adminicles if the tenor of the tack were to be proven.
Fol. Dic. v. 1. p. 143. Fountainhall, v. 2. p. 72.
