Scottish Court of Session Decisions

Subject_1 PENSION.

L Freeland
v.
Murray

Date: 23 February 1631
Case No. No 9.

Import of act 101, Parl. 1581, relative to pensions to beneficed persons.

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L. Freeland, as having right to a pension of a chalder of victual, granted by the Provost of Methven, with consent of the prebendaries, and of the Duke of Lennox, patron of the benefice, to Mr John Moncrieff, and which was assigned by him to umquhile L. Freeland, to whom this pursuer was heir; and as heir having so right, pursuing one Murray as intromitter with the teinds of the lands of Tassoquhy, which were specially assigned by the pension, for payment of the same; after inhibition served upon the said teind-sheaves, pursuing them as intromitters therewith, for payment of the years 1628 and 1629; and the defender having acquired from the new provost of Methven a tack of these teinds, being the teinds of his own lands, and by virtue thereof being diverse years in possession, alleging that this pension was null, because by the act 101. Parl. 1581, all pensions set by beneficed persons under prelates, in diminution of the rental, and to the hurt of their successors, are null; and this was of that nature; and the pursuer replying, that the act meant only of pensions granted by inferior beneficed persons, which were at the King's presentation, and extended not, nor meant not of benefices at the presentation of laick patrons, as this was: The Lords would not decide this while they were further advised, seeing it tended to annul all pensions, and whatsoever deeds done by inferior beneficed persons, as well tacks as other rights; for by setting of tacks the successor was also prejudged, and the rental of the benefice diminished. And albeit it might appear, that this act could not receive so large extent of interpretation; for thereby a provost, albeit with consent of the chapter and patron, might neither set tack nor give pension; and by the said act, there cannot be any pension which may subsist, but all are unlawful; notwithstanding that by the act of annexation, pensions set by inferior beneficed persons, clothed either with decreet or possession, are excepted therefrom; and by the 62d act of the 11th Parliament 1587, it is evident also, that some such pensions are lawful and valid; for if all were null, as the act excepted upon bears, these other acts made anno 1587 were needless, and would never been made; likeas by the act 1594, tacks set for longer space than three years, without consent of the patron, are null: Yet the Lords were almost all of one mind, that by the foresaid act the pension was null, but it was not voted as said is; and they thought this nullity might be received, by way of exception, without pursuit of reduction, and was receivable being proponed by this tacksman, whose tack, albeit the pursuer alleged it was also set to the hurt of the benefice, and so had the same fault which his pension had; yet the Lords thought it was good enough to maintain the possessor, being a tack of the teinds of his own lands, and would defend against the setter, who so long as he lived, could not quarrel his own deed. Neither was it respected, that it was only now questioned betwixt the prior pensioner, whose pension was also clothed with diverse years possession, and the posterior tacksman; and that the pursuer replied, that the beneficed person had only place to quarrel his right, and that not summarily, but by pursuit of reduction, seeing it was clothed with possession; in the which action he might then qualify, (which is not proper to be done here) that there is no diminution of the rental; and where he would dispute, that the rental is not to be considered, according to the avail and rent of the benefice, as it may yearly yield, but according to a constant recorded rental in writ, given up and authorised for a rental; likeas he would then allege great difference betwixt pensions flowing from a stipendiary minister or titular, and a beneficed person, having patron and chapter consenting to his deed, and which is ecclesia collegiata, habens capitulum et præbendam cum dignitate; but this was not decided as said is.

Durie, p. 574.