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Scottish Court of Session Decisions >>
Robertstone, Minister of Auchterhouse, v The Earl of Kinghorne, Mr. Robert Hay of Dronlaw, and Others. [1670] 2 Brn 478 (29 June 1670)
URL: http://www.bailii.org/scot/cases/ScotCS/1670/Brn020478-0796.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Robertstone, Minister of Auchterhouse, v. The Earl of Kinghorne, Mr Robert Hay of Dronlaw, and Others.
1670.
June29 and
30.
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June 29.—The Earl of Kinghorne (as coming in the place of the deceased Earl of Buchan,) being charged at the instance of Robertsone, as minister at the kirk of Auchterhouse, and parson thereof, for the parsonage and vicarage teinds of the same;
Suspends,—Because the Earl of Buchan being patron, and having neglected to present within the six months prescribed in law, the bishop of Dunkeld, jure devoluto, presented this charger; and so could present to no more than what the ministers at that kirk of before were in use to receive; but, ita est, it is offered to be proven they have ever been in use to serve for a modified stipend, (though no locality can be produced,) and were never presented to the parsonage.
It was answered,—That such a use non relevat, unless the suspender propone on some right, by tack or otherwise, in his person, to these teinds, from the parson (for it was a parsonage) or other titular.
My Lord Stair inclined much to find, that jus devolutum (as this was) could reach no farther than to what the ministers of that place were in use and possession of before; seeing nihil novi juris tribuit: although it was answered, The bishop, jure devoluto, might present to all to what the patron might; but the patron might have presented to the whole parsonage and vicarage. Yet he was content to give them the Lords' answer on it.
June 30.—In the foresaid cause of the minister at Auchterhouse against Mr. Robert Hay of Dronlaw and others, the Lords found it not worth the taking to interlocutor about the jus devolutum, and therefore found that the Bishop jure devoluto might present to all which the lawful patron might have presented to. Yet where he sought six chalder of victual, as the parsonage and vicarage teinds, yearly, for the space of eight or ten years; the Lords assoilyied the defenders therefrom, viz. from all bygones, in respect of their bona fides to continue the former use and custom; but find the minister has right to the haill parsonage in all time coming.
