Title in the Lord of Erection to the patronage of a church annexed to the benefice.
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The church of Coldstream having become vacant, two different presentations were given, one by the Crown, and the other by the Earl of Haddington. The Earl soon after brought a declarator of his right of patronage, in which he called the Officers of State.
Pleaded for the pursuer; The lands of Coldstream, and the churches therein situated, formerly belonged to a convent of Cistertians, and, upon the reformation, were annexed to the Crown.
In the year 1621, an act passed for dissolving the priory of Coldstream from the Crown, and erecting it into a barony in favour of Sir John Hamilton, third son of the Earl of Melrose; and this act was followed by a charter from the Crown to him of the subject. Sir John, thereafter, conveyed the whole grant to his father, who was the predecessor of the pursuer.
In the act 1621, the subjects dissolved from the Crown, are described to be the priory of Coldstream, and the benefice thereof, ‘with all lands, kirks, teinds, &c. pertaining to the said priory, as well the temporality as the spirituality of the same; and specially, all and hail the lands, &c.; also the teinds, parsonage and vicarage, of all and sundry the kirk and parish of Coldstream, pertaining to the said priory of Coldstream, as a part of the spirituality of the same, with all other kirks and teinds pertaining to the said priory, as spirituality thereof.’
As the teinds of the parish of Coldstream were part of the spirituality of the priory, the person serving the cure in the church of Coldstream, must have been a vicar named by the prior and convent.—The right of the ecclesiastical titular, in such a case, to supply the cure of the annexed benefice, was not, in strict language, a right of patronage; the titular himself being, in effect, parson of the parish, and the vicar only a substitute. But, when the large benefices were given away to lay titulars, this right of presenting to the annexed benefice became a proper right of patronage in the lay titular, and was execised and transmitted as such; Sir G. M'Kenzie, Obs. on a. 1594, c. 196.; St. Inst. B. 2. t. 8. § 34.; Bank. B. 2. t. 8. § 18.—Under the terms, therefore, of the grant to the priory of Coldstream, above recited, the patronage of this church was effectually conveyed to the Lord of Erection. The words, ‘advocation, donation, and right of patronage,’ do not occur in the grant, But those used were more proper in the circumstances of the case. The Crown's right being of the same nature with that which formerly belonged to the beneficed person, the proper mode of conveying it was under the general description of the kirk, and the teinds thereof. It was by having a right to these that the Crown had the consequential privilege of naming an incumbent.
No particular words were necessary; the grant of the benefice, per nomen universitatis, includes all its parts and privileges, and, consequently was sufficient to carry the patronage of this church; St. Inst. B. 2. t. 8. § 34.
Answered for the defenders; There is no conveyance of a right of patronage in the titles produced: There is not even any grant to the kirk of, Coldstream nominatim. But, though a grant to this kirk were to be held as included under the general conveyance of kirks, such a grant carries the teinds or spirituality of the kirk, but not the right of patronage. It may be true, that, before ministers had right to the fruits, the Lords of Erection, under the colour of this title to the kirk, may have put in vicars to serve the cure, as the ecclesiastical titulars were in use of doing; but, as soon as ministers came to have right, by statute, to a certain stipend out of the great teinds, the nomination to the office of minister was in the Crown. It required an express conveyance of the advocatio donatio ecclesiæ from the Crown, to vest the right of presentation in the Lord of Erection, and it was not carried by his grants to the benefice. This, it was said, seemed to be the opinion of Lord Stair, Inst. B. 2. T. 8. p. 320.
The pursuer likewise pleaded a right by prescription to this patronage upon his possession. But that point did not receive any express judgment; the Court being unanimously of opinion, that the titles produced were a sufficient legal conveyance of the patronage of this church to the pursuer's predecessors.
The Lords found, that the pursuer has an undoubted and exclusive right to the advocation, donation, and right of patronage and presentation of ministers to the said kirk and parish of Coldstream.
Act. Ilay Campbell.Alt. Lord Advocate,Sol. General,Sol. of Tithes.
Fol. Dic. v. 4. p. 48. Fac. Col. No 25. p. 40.
