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Scottish Court of Session Decisions >>
John Hope of Hopetoun v George Young in Winchburgh. [1678] Mor 15718 (17 July 1678)
URL: http://www.bailii.org/scot/cases/ScotCS/1678/Mor3615718-105.html
John Hope of Hopetoun v. George Young in Winchburgh
Date: 17 July 1678 Case No. No. 105.
Relief from Ministers' stipend, by what means obtained?
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John Hope pursues George Young for the teinds of certain lands, which George bruiked by tack. Alleged, absolvitor, because, by the Earl of Winton's disposition, to the pursuer, of these lands, the defender's tack and prorogation thereof is expressly reserved, bearing a certain duty to be paid by him for feu, teind and silver duty; and so the pursuer can never be heard to crave any more than that duty which is stated in the disposition accepted by him, and by which he bruiks; besides, by the tack, he is to be relieved of Ministers' stipends, which clause would not have been inserted had he not paid the tack-duty for teinds and all; likeas, the defender and his predecessors have been in immemorial possession of these lands for payment of the tack-duty, both for stock and teind, and the teind was never drawn. Answered, Neither his tack nor rental mentions the teinds to be set in tack, and therefore he can never have right to teinds which are not disponed to him; and the mentioning the duty in Hopetoun's disposition can never give him a right to teinds if he have it not before, &c. “The Lords found the defence founded on the rental, tank, and prorogation thereof made to the defender, with the exception from the clause of warrandice contained in the disposition made by the Earl of Winton to Hopetoun, and that the defender has been in use to pay, and the Earl of Winton to receive, the duty contained in the rental and tack, relevant to be proved by the defender.”
