Scottish Court of Session Decisions

Subject_1 IMPLIED DISCHARGE and RENUNCIATION.
Subject_2 SECT. VII.

Inhibition of Teinds, how past from. - Requisition or Premonition. - Decree Arbitral. - Recognition. - Legal Exception. - Provision of Conquest.

Lo Blantyre
v.
Parishioners of Bothwell

Date: 18 March 1628
Case No. No 37.

Taking payment of the old teind-duty, though for one year only, was found a passing from a preceding inhibition, so that the tenants were liabie only for the old duty, till a new inhibition was served; but payment of a pension due to the pursuer out of the teinds, was found not to import a passing from the inhibition.

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In the spuilzie of the Lord Blantyre's, mentioned No 15. p. 217, the Lords found, that an inhibition used against the defenders, for their teind-sheaves of one year, was a sufficient ground to exclude the persons inhibited that year from any defence, which they might propone, that they could not be pursued for any greater duty than the rental-bolls, or the duty accustomed to be paid for these teinds in the preceding years, for any year subsequent to that year, for which inhibition was served; which old use of payment, the Lords found was interrupted for all the years subsequent, after that year of the inhibition, whereof the pursuer had not received payment, nor prejudged the said inhibition by receiving the old duty thereafter, albeit there was no inhibition served each year thereafter upon the saids teind-sheaves, notwithstanding whereof the pursuer might pursue for such quantities, as he should prove the teinds to have extended unto the years libelled, wherein no inhibition was served, the old use of payment being interrupted as said is, by the inhibition served for one preceding year.

1628. March 25.—In a spuilzie pursued by Lord Blantyre, mentioned 15th and 18th March 1638, the Lords found the receipt of the old accustomed duty, used to be paid for teind-sheaves received for one year subsequent to a preceding year, for the which inhibition was served at the instance of the pursuer, prejudged the pursuer, that he could not seek any greater duty for the said teinds, neither that year whereof he received the old duty after the inhibition, nor for any other year thereafter, for the which he had not served inhibition; for the said inhibition was found to be prejudged, and in effect was past from by the pursuer, by his foresaid receipt of the said old duty thereafter, whereby it could not be counted an interruption, and therefore that the defenders should pay no more for the teind-sheaves, but the said old duty, for any years for the which they were not interrupted after the receipt, since the inhibition, as said is. Item, The Lords found, that the payment made to the pursuer, who had a pension of certain bolls to be paid out of the teind-sheaves libelled, did not import liberation to the defenders, who made the said payment, of the action for the rest of the avail of the said teind-sheaves, and their wrongous intromission was not totally purged thereby; but allowed only the said payment pro tanto in the first end of the quantity of the said teind-sheaves, seeing the pensioner had not the teind-sheaves assigned to him for payment of his pension, but the pension was only of certain bolls to be paid out of the teind-sheaves.

Fol. Dic. v. p. 433. Durie, p. 363. & 369.