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The proprietors of Pewlands had right to a sub-tack of the teinds of those lands, for payment of £.80 scots.
The Minister of Newlands got an additional stipend by a decree of augmentation, and there was localled, on the lands of Pewlands, 19s. 11d. of money, and four bolls of victual more than the teind-duty payable by the sub-tack, whereof the patron was ordained to relieve the heritor yearly, during the course of the tack, after which the heritor was appointed to pay the stipend conform to the locality.
The tack expired in 1743; but the Earl of March, the patron, continued to pay the surplus stipend till 1757, when he brought an action, concluding 1st, for payment of the free teind in time coming; 2do, for repetition of the surplus stipend.
Pleaded for the defenders: They possessed by tacit relocation, and can only be liable for the tack-duty.
Answersed : The pursuer insists for the free teind, only from the date of the citation, which is equivalent to an inhibition. Tacit relocation is founded on the presumed consent of the titular, and that is necessarily excluded by a process for the full teind.
In lands, warning was introduced for the protection of tenants, that they might not be thrown destitute by being removed on the term day without notice; but no such inconvenience can take place in tacks of teinds. Again, the value of teinds is fixed by law at a tenth of the produce : In lands, there is no legal value for which a tenant can be made liable; and yet, even in the case of lands, an action for a greater duty, in time coming, has been found to interrupt tacit relocation, without warning; M'Brair against Romes, No. 211. p. 15320.
In several cases, citation in a process has been found to interrupt tacit relocation of teinds, Earl of Athole against Robertson, No. 34. p. 7804. voce Jus Tertii; Shiel against Parishioners of Prestonhall, No. 61. p. 10761. voce Prescription. Forbes on Tithes, holds citation to be equivalent to inhibition, p. 320,355.
2do, The surplus stipend, paid by the patron, since the expiry of the tack, must be restored as indebite solutum, in consequence of the decerniture of the decree of locality.
Replied, on the 1st point: All our lawyers have agreed that inhibition is the proper method of interrupting tacit relocation of teinds; Stair, II. 8. 23. and IV. 24.2; Mackenzie, II. 10, 19; Bankton, II. 8. 179; Erskine, II. 10. 21.
Whether an action, concluding that the heritors should be ordained to surrender the possession, would be competent, it is unnecessary to inquire. But an action for payment of a higher duty cannot deprive him of the possession; on the contrary, it clearly supposes that the heritor is to continue to possess; and, so long as his possession continues, he can be liable in no higher rent than what he agreed to pay; nothing but a joint agreement can subject him to an additional rent. Suppose a tenant, after the expiry of a lease of lands, should notify to the heritor, that he is to pay a lower rent in time coming, still he would be liable for his original rent, unless he gave up the possession; and a like notification by the proprietor, would be equally ineffectual to increase the rent above what had been formerly paid.
Indeed, the present question was expressly determined between the Earl of Selkirk and Macmorran of Glespine in 1764, supra, where citation was found not to be equivalent to inhibition, and the heritor was subjected to the full teind only from the date of the interlocutor.
In the case of the Earl of Athole against Robertson, use of payment to the Minister of the whole teind, was found sufficient to defend the heritor from second payment to the titular, till inhibition or citation; but there the heritor did not pretend any right from the titular; and citation was deemed a sufficient intimation of the titular's right.
The decision between Mr. George Shiell and his parishioners, was in the case of vicarage teinds, which do not require inhibition, as is laid down by Lord Stair, IV. 24. 11.
Replied, on the 2d point: A person possessing by tacit relocation, possesses on the same conditions as if the tack had been expressly renewed. If, in this case, the patron had granted a new tack in terms of the former, he must have relieved the heritor of the surplus teind, which he is equally bound to do, by having allowed him to possess by tacit relocation.
The Lords "found, that the citation does not interrupt the tacit relocation; but found the defenders liable for the full teind from the date of the interlocutor; and found the Earl entitled to repetition of the surplus stipend from the same period.
Act. Ilay Campbell.Alt. Macqueen.Reporter Strichen.
Fol. Dic. v. 4 . P. 329. Fac. Coll. No. 18. P. 229.
