The Representatives of Major Chiesly, of Dalry, v. Sir Alexander Brand
Date: 8 January 1708 Case No. No. 49.
Nature of a tack of teinds.
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By a minute of sale of the lands of Dalry betwixt Major Chiesly, and Sir Alexander Brand, the Major being obliged to give Sir Alexander a sufficient right to stock and tiend, and Sir Alexander having afterward questioned the Major's right to the teinds as not sufficient; both parties in May 1700 submitted to the Duke of Argyle what right the Major should give of the teinds sold to Sir Alexander. The arbiter considering that the Major had only right by progress to a tack of the teinds of Dalry, granted by the commendator of Holyrood House in September 1598, to James Ballenden of Burghtoun, during the life time of himself and heirs therein mentioned, and nineteen years after the decease of the last of these heirs; did, upon a mistaken supposition that the late Lord Ballenden was the last heir, ordain Major Chiesly to grant to Sir Alexander a sufficient disposition of the said tack for the said Lord Ballenden's lifetime, and nineteen years after his decease, and to purchase from the commission a prorogation thereof for two nineteen years further in favours of the said Sir Alexander, who was ordained upon performance, to discharge any thing he could crave in relation to these teinds.
The representatives of the Major finding upon inquiry, that the Lord Ballenden was none of the heirs mentioned in the tack, and that the nineteen years after the failure of the last heir were expired before pronouncing of the decreet arbitral, so that the tack could not be propogated; took a new tack from her Majesty, as come in place of the Bishop of Edinburgh, who was titular of the teinds of Dalry, for four nineteen years, commencing from Lammas 1707; and offered the same to Sir Alexander as an equivalent to a decreet of prorogation in the terms of the minute; and insisted against him for payment of the price of the land.
Alleged for the defender: 1mo, The decreet arbitral must be implemented in the precise terms thereof, and not by an equivalent; 2do, The tack offered is not so sufficient as a judicial prorogation of the former would have been; because, a purchaser might safely rely on a decreet of prorogation, which could not be quarrelled, the authors of the former tacks being therein called; whereas a task of teinds granted by her Majesty may happen to be excluded by some others pretending a better right, it being in dubio if the Queen has right to the said teinds; and though she had right as come in place of the Bishops, she cannot grant a tack for a longer space than they could have done.
Answered for the pursuers: The Queen having now all the right to these teinds which the commendator had, a tack from her Majesty for four nineteen years, must be thought at least as good and sufficient a right as the other's for three nineteens only. And seeing to implement the decreet in forma specifica is absolutely imprestable, not through any fault of them or their author, but by the tacks being expired before the date of the decreet; loco facti imprestabilis subit damnum et interesse. 2do, King Charles the First having acquired these teinds, and annexed them to the Bishoprick of Edinburgh, and the Queen by the suppression of Bishops having come in their place, her right to set tacks cannot be doubted; for she may jure corone dispose of such absolutely at her pleasure; as de praxi she has not only granted long tacks, but even heritable rights to severals; she being restrained in that matter by no such law, as the Bishops were.
The Lords found, that the tack of teinds offered by-Major Chiesly's representatives, was equivalent to the right decerned to be given by the decreet arbitral, and that Sir Alexander ought to accept thereof as such.
