Scottish Court of Session Decisions

Subject_1 STIPEND.

Mr James Hutcheson
v.
Earl of Cassillis

Date: 8 December 1664
Case No. No. 10.

A stipend found to affect the whole teinds unbought, where there was no locality.

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Mr. James Hutcheson having charged the Earl of Cassillis for his stipend, the Earl suspends, and alleges, first, That the charger had no right to the Whitsunday term, 1663, because that term was past before his presentation, at least before his institution and collation; 2dly, There being but a decreet of modification, and no locality, the Earl alleged locality should be first made, and he liable but for his proportional part of the stipend.

The Lords found, That the stipend affected the teinds, and the Minister might take himself to any of the heritors, in so far as he had teind; and therefore sustained the condescendence, and ordained the charger to prove what teind my Lord had, without prejudice to him to crave his relief.

Fol. Dic. v. 2. p. 393. Stair, v. 1. p. 235. *** Newbyth reports this case:

Mr. James Hutcheson, Minister at Inch, having charged the Earl of Cassillis for payment making to him of 500 merks, and 3 chalders of victual, for his stipend 1663, conform to his decreet of modification, he suspends, upon this reason, That he being but one of the heritors within the parish, and there being more heritors than him contained within the decreet of modification, so that, until there were a locality produced, whereby every one's proportion might be known, the Earl could not be charged for the whole: The Lords found the Minister might charge any of the heritors for payment of his stipend, albeit he had no decreet of locality, especially the Earl of Cassillis, since he offered to prove, that he had more teinds in the parish than would satisfy the modified stipend, and that the Earl might seek his relief against the rest of the heritors.

Newbyth MS. p. 8.