The Marquis of Tweddale, v. Alexander Orrock of that Ilk
Date: 13 February 1708 Case No. No. 51.
Annuity not due by the sovereign's tacksman for teinds belonging to the sovereign in property at the time when annuity was established by law, though the sovereign had right to annuities jure coronæ, and to the teinds jure privato.
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The Marquis of Tweddale having obtained from the late King William a tack for several nineteen years, of the feu and teind-duties of the Abbacy of Dumfermling, charged the Laird of Orrock to pay 295 pound 8 shilling 6 penies, as the price of rental bolls, payable by him for the teinds of his lands the crop 1706; who suspended upon this ground, that the charger and his father had these forty years bygone intromitted with the whole teind-duties of the suspender's lands, without discounting the Queen's yearly annuity of twenty pounds, to which the suspender has right for onerous causes from the Earl of Lowdoun, who had commission from King Charles the First to dispose of the annuities due out of the whole teinds in Scotland; and the annuity will more than compense the sum charged for.
Alleged for the charger: The teind-bolls charged for belonged to the Queen in property, and to the Marquis only as tacksman; therefore no annuity out of them was or could be constituted; since Res sua nemini servit.
Answered for the suspender: Annuity is no servitude; not a personal servitude, as being neither usus-fructus, usus, nor habitatio ; nor yet is it a real servitude, because, the teinds out of which it is payable, can in no sense be called a prædium, and it may be due to such as have no prædium. Besides, to pay so much money for each boll of teind is aliquid facere, which agrees not with the common nature of a real servitude, that consists in an obligement aliquid non facere, aut pati in suo. 2 do, It is very consistent, that the teinds of the suspender's lands, may pertain to the Queen in property, and yet her Majesty's tacksman be liable to pay annuity. For, 1mo, It being clear from the acts of Parliament 1633, about the annuity and valuation of teinds, the preceding general submission with the King's decreet-arbitral, and act of commission following thereon; that the King, resolving to establish an universal order, ordained all persons except Bishops, Minister, &c. to denude of the right to other men's teinds, and even teinds belonging to his Majesty were to be sold; now the King was to have his annuity out of all teinds whether sold or not, unless what belonged to Bishops, Ministers, &c. without excepting the tacksman of the King's teinds; et exceptio firmat regulam in non exceptis. Nor is it conceiveable how the annuity could have been (as was designed) a constant rent, or certain patrimony of the Crown, if teinds pertaining to the King in property, or falling in his Majesty's hands by succession forfeiture, bastardy, ultimus hæres, &c. could not be burdened with annuity while in the hands of tacksmen, and possessors thereof. 2do, Tacksmen of the Queen's teinds are bound to pay a share of supply, Ministers' stipends, and all publick burdens, consequently are liable for annuity, which was calculated to be a publick burden upon all possessors of teinds, and a branch of the patrimony of the crown.
Replied for the charger: 1mo, What is inferred from the acts of Parliament 1633, decreet arbitral, &c. is nothing to the purpose; for the annuity being given to King, Charles the First as a gratification for passing from the severity of his general revocation, cannot be thought to extend to teinds that were in his Majesty's person jure privato. The clause appointing annuity to be paid out of a1l teinds except those belonging to shops, Ministers, &c. must be understood in terminis habilibus of teinds whereof his Majesty had not the right, but lords erection and other titulars. Now as the annuity could not subsist as a burden upon the teinds in the Queen's person, neither can her tacksman be obliged for annuity. Because, if annuity was not a burden upon the sovereign's property ab initio, it could not emerge, or become due by the subsequent grant of a tack without any new law; besides, the tacksman's possession is her Majesty's possession. Again, there is a manifest disparity betwixt teinds of the Queen's property when the annuity was imposed, which could not be burdened with it, and teinds which, being once liable to annuity, fell afterwards in the sovereign's hands by forfeiture, bastardy, ultimus hæres, &c. And yet even in these, the property would absorb the inferior right of annuity. 2do, It is not material to allege, that the Queen's teinds bear a share of publick burdens; for the annuity and supply are differently counted for in Exchequer, and differently applied. The supply is not granted to the Queen to be disposed of as the patrimony of the Crown, but for certain special public uses; upon which account her Majesty's proper lands bear a proportion with the rest of the shire
The Lords found, that the King having night to anuities, and to the suspender's teinds, the time of the acts of Parliament 1633; the annuity could not burden these teinds; notwithstanding that the King had right to the annuities jure coronæ, and to the said teinds jure private.
