Not competent to object against a Party's title, without a Legal Interest. - What understood to be a Legal Interest.
Marquis of Tweeddale and Lord Yester v. Sir David Thoirs of Inverkeithing
Date: 26 January 1699 Case No. No 39.
A defender was found not entitled to plead in a removing, that the pursuer had no sufficient title flowing from the original proprietor, since the defender did not derive right from that proprietor.
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Philiphaugh reported the Marquis of Tweeddale and Lord Yester against Sir David Thoirs, advocate, who being charged for L. 7 Scots per annum as the teind of some acres of land he had inclosed in an orchard there, he suspended on this reason, that he being patron of the kirk and parish of Inverkeithing, by the act of Parliament 1690, abolishing patronages, he had right to the teinds of the parish. Answered, That declaratory act does not alter the state of the teinds, but any who had a right prior to the act stand unprejudged; and so it is, my Lord Tweeddale has comprised the Earl of Dunfermline's right to these teinds, which was a tack set to him by King Charles I. in 1639, for several 19 years, as also has a new tack from King William. Replied, No regard to Dumfermline's tack, for it is expired; and as to King William's, it can never compete with Sir David, for the Lordship of Dunfermline belongs not to the King's of Scotland jure coronæ, but as the nearest descendents of Queen Anne, to whom that Abbacy was disponed in a morning gift by King James, her husband, at Upslow in Norway, and confirmed in Parliament; and the right King Charles I. had to it was not qua King, but as heir served and retoured to Queen Anne, his mother; and so King James being nearer both to his grandmother, Queen Anne, and his father King Charles I. than King William is, he can never be heir to Queen Anne or King Charles I. so long as King James is alive, and consequently it neither being in his patrimony jure coronæ, nor jure privati he can set no valid take thereof. Duplied, Though Dunfermline's tack be expired, yet my Lord Tweeddale bruiks per tacitam relocationem till he be interrupted by some having a better right. As to King William's tack, although it be not fit to debate by what title Princes set tacks, or grant other rights to their subjects, yet it is difficult to comprehend if Queen Anne's lineal heir has abdicated the Crown, how he retains the right of his private patrimony; for then King James might still claim the emoluments of the Post Office, Admiralty, and lands he had in Ireland; but these being two nice points, Sir David can never obtrude that Queen Anne's nearest of kin stand in the property of these teinds, unless he derived right from her, or some bruiking by her right; otherwise it was jus tertii to him to quarrel and impugn my Lord Tweeddale's right. The Lords repelled Sir David's defence, unless he produced some right derived from Queen Anne, or some possessing by her right.
Fol. Dic. v. 1. p. 521. Fountainhall, v. 2. p. 38.
