Scottish Court of Session Decisions

Subject_1 TEINDS.
Subject_2 SECT. II.

Parsonage Teind.

Major Chiesly
v.
Sir Alexander Brand

Date: 20 January 1708
Case No. No. 107.

Nature of a tack of teinds.

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The deceased Major Chiesly having sold his lands of Dalry to Sir Alexander Brand, and having submitted to the deceased Duke of Argyle what right he should accept of for the teind of the lands; his Lordship, by his decreet-arbitral, decerned, That after the tack now running, let by the Lord Bellenden, either a new one should be procured from his heirs-male for three nineteen years, or a prorogation from the commission of the kirk for the same term of years. When the rights came to be searched, they found the tack expired, which was then thought current, and no heir-male could be condescended on, so the right could not be completed in the precise specific terms of the decreet-arbitral; therefore this method was fallen on. They belonged to the Bishop of Edinburgh daring the standing of Episcopacy, and since its abolition to the Queen, from whom a tack is obtained to the said Sir Alexander Brand for four nineteen years; and this being offered as better than what he was to have got by the decreet-arbitral, he objected, 1mo, That seeing the decreet-arbitral was now found imprestable, et nemo tenetur ad impossibile, res nunc devenit in eum casum, that the minute of sale betwixt the Major and him must be the rule, by which he is to give the same price, viz. twenty years purchase for the teind, that he did for the stock; and seeing now an heritable right was not offered, but only a temporary, uncertain and very exceptionable right, he is either not bound to accept of it, or at least he must have deduction out of the price quanti minoris, he would have given if this had occurred at the time of making the bargain. Answered, If the performing of the decreet-arbitral be now imprestable in forma specifica, that is so far from dissolving the bargain, that it only makes room for an equipollent implement, the rule of law being loco facti impræstabilis succedit damnum et interesse. Now, this tack offered is better than the conveyance provided by the decreet-arbitral, for it contains nineteen years more; and he can seek no abatement of the price eo nomine, seeing he was to get none if three nineteen years had been obtained; and in all such cases the rule is caveat emptor; he should not have stipulated the same price for the teind which he gave for the stock. The Lords found the tack now offered was an equipollent implement of the obligement in the decreet-arbitral, and more, and nowise contrary to, or interfering with the said decreet-arbitral, and so he was bound to accept of it. Then Sir Alexander alleged, That this right offered was not so good as a prorogation would have been; for this supposes these teinds to have belonged to the bishoprick of Edinburgh, whereas, the old tacks make it appear, they were a part of the revenue and patrimony of the convent and abbacy of Holyroodhouse, and then of the Barons of Broughton, and Lord Holyroodhouse. 2do, Esto they were erected into that bishoprick, the Queen, as come in their place, can set no longer tacks than the Bishops her authors could have done, and that was only for one nineteen years, 3tio, Secretary Johnston, by a gift from King William, has a right for a sum of money out of the teinds, and he is not consenting. Answered to the first, King Charles I. purchased these teinds from the Lord of erection of Holyroodhouse, and erected them into the bishoprick of Edinburgh; and, among the rest, the teinds of the parish of St. Cuthbert's are nominatim mortified and expressed. 2do, The Bishops were most justly limited from dilapidation of their benefices by longer tacks than nineteen years, else they might have left their successors in office nothing but the bare bones of a small elusory tack-duty; but this reason does not militate against the Queen. 3tio, They acknowledge Mr. Johnston's right is prior to the tack offered, but they have obtained his consent. Replied, Esto they had been mortified to the bishoprick of Edinburgh, which was dismembered from the diocese of St. Andrew's, yet non constat the Bishops of Edinburgh were ever in possession of these teinds, and quoad several heritors of this parish they were not; whereas this argument would make them all liable, et quod nimium probat nihil probat. 2do, This tack stands on a very sandy foundation; for, upon a revolution of church-government, the Bishops would recover these teinds again, if theirs; and he has no warrandice to recur upon. Duplied, The Bishop could not be in possession of these teinds of Dalry, because they were then under tack, and he had right to nothing but the tack-duty; but that being expired, the Queen pleno jure confers. To the second, there can be no security against revolutions and overturnings of government; and if that should happen, a prorogation, which was the right he was willing to accept of, would run the same hazard and risk of being quarrelled by the Bishops. The Lords repelled the objections, and sustained the tack offered.

Fountainhall, v. 2. p. 421.

*** See Forbes's report of this case, No. 49. p. 15650.