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Scottish Court of Session Decisions >>
John Balfour v Gilbert Ker of Lochtour. [1623] Mor 14784 (20 June 1623)
URL: http://www.bailii.org/scot/cases/ScotCS/1623/Mor3414784-003.html Cite as:
[1623] Mor 14784
Every intromitter of teinds is liable for the stipend to the extent of the whole quantity of his intromission.
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Mr. John Balfour, Minister at Hettam, charged Gilbert Ker of Lochtour as intromitter with some of the teinds of the parish, who were decerned to pay the constant stipend, and had obtained prorogation of their tacks; and if the suspender had any intromission, it was by a wadset of his teinds, redeemable for 5000 merks; and that his intromission would not equal his annual-rent, besides that his wadset before the decreet of the Commissioners of Parliament. The Minister answered, That, by his decreet, all the teinds of the parish, and all the intromitters therewith, were subject to his payment, and he had place to charge any intromitter. I reasoned, That the minister had his direct action against the principal tacksman, who was nominatim decerned to pay him; and that it was lawful to him to set tacks for small duties, which the minister could not quarrel, so long as the principal tacksman paid him; and that the Minister should first have discussed the principal tacksman, before he charged any intromitter, specially having intromited by a lawful right made to them who had power, by virtue whereof he had been in possession divers years. It was farther eiked by the suspender, That he should be charged only pro rata, according to the proportion of his intromission, and the rest of the parish for their intromission; which was also repelled, and the minister's reply sustained, bearing, that Lochtour had intromitted with as much as might pay his stipend, and that Lochtour might have his relief against the rest. I affirmed, that he had no relief but against the granter of the wadset, who was a dyvour, and that many others of the parish might perchance have intromitted without title, against whom he had no action, they not being bound to him, and he not having right to the tack of their teinds, nor any assignation from the principal tacksman. Notwithstanding whereof, the Lords found him debtor in solidum for the whole quantity of his intromission.
