Scottish Court of Session Decisions

Subject_1 PATRONAGE.
Subject_2 SECT. I.

Nature and Extent of the Right.

The L of Lugton
v.
The L of Edmondston.

1632. —.
Case No. No 3.

Presentation to a preceptor to an hospital.

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The Laird of Lugton having comprised from the Laird of Ednam the patronage of Ednam Hospital, presents thereunto a Preceptor, from whom he takes an infeftment of the lands of Fallow, holding of the preceptory in James Pringle of Buckholme's name, and upon his infeftment pursues the tenants for their mails and duties. Alleged, They were tenants, at least possessed by tolerance of one Brakenrig, who was lawfully provided to the said preceptory by umquhile Andrew Laird of Edmonston, and by virtue thereof in possession 25 years. Replied, Any presentation Brakenrig had was null, in respect that no collation nor institution followed thereupon, which is necessary in all benefices; 2do, It never came in Brakenrig's hands, but remained still with the Laird of Edmonston in his charter-chest, where it was yet lying, neither had ever Brakenrig done any deed as Preceptor, or was acknowledged for such. Duplied, 1mo, No necessity of collation; because not a benefice of cure; 2do, Sufficient that the presentation was lawfully subscribed by the patron; and the defenders offered to prove, that Brakenrig was ever since in possession of a duty of 20 merks yearly from Edmondston. Answered to this last part, Not relevant; unless it were alleged, that these 20 merks were paid by virtue of some right (either, feu or tack ) set to Edmondston by Brakenrig; especially since the pursuer offered to prove, that Brakenrig paid all that time mail and duty to Edmondston himself.—The Lords repelled the exception, in respect of the second part of the reply, except the defenders would allege that duty of 20 merks to have been paid for some right made to Edmondston by Brakenrig. And for the first part of the reply, anent the wanting of collation, they passed it over, and gave it not an answer.——1632. December 11.——Next alleged, They were tenants to sir John stirling, who was infeft by Brakenrig, and by virtue thereof in possession. Replied, His infeftment was null, as proceeding a non habente potestatem; Brakenrig's right being found null for the cause foresaid. Duplied, The cause Why Brakenrig's right was not found good, was bacause he had never done any deed as Preceptor, which now could not be said, he having given the infeftment foresaid. Triplied, That the infeftment coult not sustain his right; because, after the pursuer's, which was given by a Preceptor lawfully provided, and no alleged possession of Brakenrig's, after the lawful provision of another, could make his null valid.—The Lords repelled this allegeance also and duply, in respect of the reply and triply.—3tio, Sir John Stirling, who was present, offered to satisfy the pursuer of all his sums he had comprised for, whereby his interest to quarrel his infeftment would be taken away. The pursuer alleged, His comprising could not be redeemed hoc ordine, especially the defender having no right to redeem. Replied, He offered it in name of Ednam, from whom the pursuer had comprised. Duplied, He had comprised only from Ednam the right of patronage, which was the most could be redeemed from him; but as to his infeftment given him by the Preceptor he had presented, the Laird of Ednam had no right to redeem that, because he could pretend no right to these lands himself, they being provided by his grandfather to the children of his second marriage.—The Lords would not sustain this offer at the defender's instance.

Spottiswood, (Kirkmen, &c.) p. 192. *** Durie reports this case.

One having comprised from the Laird, of Edmondston, as lawfully charged to enter heir for his father's debt, the right of the patronage of the Hospital of Ednamspittal, which pertained to the house of Edmondston, with other lands of Ednam comprised also; and thereafter the compriser having presented a Preceptor to that Hospital, which Preceptor immediately thereafter sets a feu, with consent of the said compriser, who was patron by virtue of his comprising, of the lands of Falla, which pertains and were doted to the said Hospital, to another person, for payment of a certain duty to the said Preceptor; which feuar, so infeft, pursuing the tenants to remove from the said lands, who excepted, That they were tenants to such a Preceptor yet alive, who was presented 25 or 30 years since to the said preceptory, by umquhile the Laird of Edmondston, goodsire to this now Laird, and which Preceptor had been these 25 years in possession of the said lands, by receiving of 20 merks from the possessors of the same lands, as duty therefor, and yet continues in possession thereof; so that this Preceptor being yet alive, no other Preceptor constituted and presented by the compriser, nor no feuar made by him, can have right to these lands, seeing this comprising, which is the ground of all, is but deduced in anno 1631, and so is 25 or 30 years after the other was presented, and who since has continually been in possession; this exception in this judgment possessor of removing was repelled, and not sustained to defend the tenants; for as it was replied for the pursuer, the Lords found the right of preceptory, made by the patron, whereupon the exception is proponed, not sufficient to make that person lawful Preceptor, seeing the presentation thereto was not delivered to that Preceptor, but remained still with the patron, and became not the Preceptor's evident; and also seeing the alleged Preceptor was a tenant of part of the same Hospital-lands, and paid duty therefor himself to the Laird Edmondston the patron, who prevented him: And the Lords found no defect in the presentation, albeit collation and institution followed not thereon, as was alleged by the pursuer against the excipient's presentation, produced by him; for it was found, there was no necessity of collation nor institution, in such presentations made by laicks, for which vide July 4th 1627, M'Kenzie, Minister, See Appendix. And it was not respected what the excipient duplied, that there was no necessity now, after so long time, to prove delivery of the Preceptor's presentation, seeing it was extant and must be presumed to have been delivered; likeas, without delivery, it is sufficient in respect of the 25 years possession, as said is, seeingin beneficialibus, decennalis, et triennalis possessio pacifica is enough, etiam sine titulo, vel præsumit titulum especially the preceptor being yet living, and in possession, and against another Preceptor so lately presented by this compriser; and the patronn's having of the presentation is no impediment nor the Preceptor's paying duty for a part of the lands; for the patron, upon any condition betwixt him and the Preceptor, might keep this presentation, that it might appear on all occasion requisite, that he had made bargain with one who was Preceptor. Likeas, it is no impediment, but that the patron might suffer the Preceptor to bruik, and pay duty for a part of the land after that he had convenanted therefor with the preceptor, and that the same Preceptor had received duty for the rest of the lands belonging thereto: Notwithstanding whereof, the exception and duply were repelled And thereafter the defender eiking to his exception, that the said Preceptor had set feu of these lands to another, to the behoof of the L. of Edmondston, whereby he had done all deeds requisite to make a preceptor; this was sustained, albeit this right was made since the comprising, because the defender offered instantly to pay to the compriser all the sums for the which the comprising was deduced, which was instantly permitted, without necessity to put the party to a redemption.

Act. Stuart. Alt. Nicolson. Clerk, Scot. Durie, p. 657.