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James Laurie v Alexander Cunningham of Polquharn, and Hew Hay. [1710] 4 Brn 792 (14 February 1710)
URL: http://www.bailii.org/scot/cases/ScotCS/1710/Brn040792-0298.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
James Laurie v. Alexander Cunningham of Polquharn, and Hew Hay
Date: 14 February 1710
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Alexander Cunningham of Polquharn, and Hew Hay, in Ayr, being assignees by Crawford of Kerse, to L.168, owing to him by one of his tenants; Mr James Laurie, minister at Dalrymple, competes, That, he being provided, by his decreet of locality, to so much money and victual out of the barony of Kerse, he might take this tenant's rent in part of his stipend pro tanto.
Alleged,—His stipend being localled upon the teinds, he can pretend no further interest than to the fifth part of this tenant's rent, stipends being only payable out of the teinds.
Answered for the Minister,—That the proportion of stipend payable out of the lands of Kerse, was without any division upon particular roums; but indefinite, and general over the whole barony, tanquam mum tcnementum; and so he might distress any tenant for his whole rent, to the avail of the stipend localled on the whole. But the truth was, here were sundry specialties: for, Kerse being broken, the rest of the roums were lying waste, and this was only tenant-sted: and as Kerse himself was personally liable, so must his tenant be. And to restrict him to the fifth part of the rent, was to send him to lift the rest of his stipend from windlestraws and sandy laverocks; and he was not to distress them any further than his proportion of stipend laid upon these lands; and, till that was paid up, unaquceque gleba servit, unless the stipend had been specially divided, so much on every roum.
Replied,—It is unheard of doctrine, that stipends can affect the stock; and, esto he were a parson or titular, he could get no more but ipsa corpora, and no part of the stock; and much less can a stipendiary claim more: for, by the canon law, decimal debmtur parocho; but no part of the stock:—See 24th June, 1662, Vernor against Allan, and 3d December 1664, Hutchison against the Earl of Cassils. And it is not to be presumed of any heritor in his right wits, that he will cast four parts of his lands waste to disappoint the minister of his teind.
The Lords, by plurality, found the minister in this circumstantiate case was not to be restricted precisely to the teind of this roum, but might affect the whole for his stipend, in so far as it extends; though sundry of the Lords thought this an extraordinary privilege, and not to be granted, unless he had affected it by arrestment, or other legal diligence; which method would be more agreeable to the analogy of our law.
