Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES FERGUSON OF KILKERRAN.

Alexander Donaldson of Kinnairdy
v.
Officers of State

Date: 8 January 1755

Click here to view a pdf copy of this documet : PDF Copy

This case is reported by Lord Kames, (Sel. Dec. No. 72 ; Mor. 9926.) Lord Kilkerran gives the following statement of the grounds of the judgment:—

“January 8, 1755. Preferred Kinnairdy, but not upon the grounds pled for him in the information, but on what follows:

“That the act 1587, its not annexing patronages was true, but not to the purpose, for these kirks that belonged to abbacies, and whereof that in question was one, were not patronat, they were served by monks appointed by the abbot. A few, it is true, there were that belonged to the Chapter, but they were but a few; the bulk of them belonged to the Abbot, and were served by monks of his appointment, as aforesaid. So that whether patronages were or were not annexed, (as certainly they were not,) is nothing to the present question, which falls to be determined upon the act 196, of the Parliament 1594. Before that act, there had been several of these abbacies erected into temporal benefices ; but then all that the Lords of Erection got was the teinds. But there were no kirks till, by the aforesaid act 196, Parliament 1594, they were, for the first time, declared patronat, and to be provided by presentation as common kirks; the consequence of which was, that as the grant of the teinds did not carry the right of patronage, that was and remained in the crown, except where, in the after grants, the patronage or jus presentandi was given to the Lord of Erection, and which the family of Panmure had in this case, who were specially infeft in the patronages, on the resignation of William Murray, to whom they had been granted by the crown; and on this ground it was that the question turned between the Crown and Lockhart of Lee, for the patronage of Lanark. Lee had got the right to the teinds, but no right to the patronage, and having resigned in the hands of the Exchequer, he obtained from them a novo-damus, with a grant of the patronage, which the Lords found the Exchequer could not give without authority from the Crown; all they could do on his resignation was to give a new charter of what he had before, and no more.”