Lockharts of Lee and Carnwath v. The Officers of State
Date: 10 July 1751 Case No. No 14.
The Exchequer being settled by act of Parliament 1645, with power to expede new gifts; and having gifted a patronage without warrant from the King; and the rights of private persons being saved by the act rescissory of the acts of this Parliament; the gift was not found good.
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John Lockhart of Lee, and George Lockhart of Carnwath, insisted each in a declarator against the Officers of State, of their severally having right to the patronage of the parish of Lanark.
Pleaded for Carnwath, King James VI., 27th March 1604, erected the priory of Inchmaholm, and the abbeys of Cambuskenneth and Dryburgh, into a Lordship, to be called Cardross, in favour of the Earl of Mar; together with the right of patronage of the kirks belonging to these prelacies; particularly disponing these kirks, and amongst them that of Lanark. The disponee was infeft 1605, and the grant confirmed in Parliament 19th July 1606.
The Earl of Marr 1612 disponed this estate to Henry Lord Cardross, his second son; and David Lord Cardross obtained a charter of novodamus 1664 on his own resignation, comprehending terras ecclesiasticas de Lanark; together with several kirks mentioned, amongst which Lanark is not named; together with the right of patronage of the kirks and parishes above-mentioned; and he was infeft 1668.
This right came into the person of Lockhart of Carnwath, who, 13th August 1708, gifted the vacant stipend to the widow and children of Mr John Bannatyne, the late incumbent.
Pleaded for the Officers of State, The Earl of Mar did not depend on the charter granted him; the reason whereof has been, that by the act 176th Parl. 13th, James VI., the grant of patronages of benefices, whereof the incumbent was alive, was void; and that several of the incumbents of the benefices, whereof the patronages were granted, had been alive. He therefore obtained a new charter, 10th April 1615, of the lands and baronies belonging to the abbey of Dryburgh, comprehending the kirk-lands of Lanerk, ordaining that sufficient ministers should be provided to the said kirk, who should be named and presented by the King; accordingly, the King presented in 1616 and 1643, since which time there has been no opportunity of presenting till the death of the last incumbent, whereby the present dispute has been occasioned.
The pursuer has produced no conveyance from the Earl of Mar to his son the Earl of Cardross.
Observed, The grant of the patronage to the Earl of Mar has been void, as not being then in the Crown; for it appears by the subsequent charter 1615, that there was then a commendator of the abbey, whose resignation had been after that time obtained.
Pleaded for Lee, King Charles I. 8th August 1674, granted the patronages of Lanark and Carlouck to his ancestor; his family has since had no opportunity of presenting to Lanark; the incumbent, at the time of his grant, having held the benefice till he left it at the Revolution, when Mr John Bannatyne, who had a meeting-house in Lanark, took possession of the church without any title, and held it till his death in 1707, and then Mr Orr was called by the heritors and elders; but Lee gifted the vacant stipends to Mr Bannatyne's widow and children, who, on that title, named a factor, and he uplifted the same; nor is it any objection to this act of possession, that Carnwath thought proper, after his gift, to give another to the same parties: Lee also presented to Carlouck in 1731 on the same title, and the presentee was settled.
Pleaded for the Officers of State, The charter is a grant of novodamus on a resignation of the family estate; it is dated at Edinburgh, where the King was not at the time; so that it appears there was no warrant for the additional grant of patronage; nor indeed could there be, as the King was then prisoner to the English rebel army.
Answered, Lee has a gift under the seals, and ought not to be put to show the warrant thereof after so long time. 2dly, The Exchequer was then settled by act of Parliament 1st February 1645, with power to expede new gifts; and though this Parliament is rescinded by act 15th, Parl. 1661, the rights granted to particular persons are saved.
Observed, The Parliament gave power to the Exchequer to grant the King's casualties, but not to dispose of the patrimony of the Crown.
The Lords found neither of the pursuers had produced sufficient titles to the patronage in question; and that for ought yet seen, the right remained in the Crown.
Reporter, Justice-Clerk.Act. for Carnwath, A. Pringle; for Lee, R. Craigie.Alt. Advocatus.Clerk, Kirkpatrick.
D. Falconer, v. 2. No 219. p. 263.
