Scottish Court of Session Decisions

Subject_1 PATRONAGE.
Subject_2 SECT. I.

Nature and Extent of the Right.

Parson of Morham
v.
Laird of Bearford and Beinstoun

Date: 6 July 1666
Case No. No 4.

Patronage is transmissible without infeftment.

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The Parson of Morham pursues reduction of a tack set by the former Parson to Bearford and Beinstoun, as being granted without consent of the patron; the defenders alleged, Absolvitor; because the tacks were set by the Parson, who had commission from the Earl of Buccleugh, patron, to set tacks; 2do, The tacks were set with consent of Francis Steuart, Lord Bothwel, expressly, as patron, which Francis Steuart had right to the patronage, in so far as this patronage, with the, rest of the estate of Bothwel, being forfeited, the Earls of Buccleugh and Roxburgh got gifts thereof; but, by the King's decreet-arbitral betwixt Francis Steuart and them, Buccleugh was ordained to denude himself of this patronage, and others, in favour of this Francis. The pursuer answered, first, That no commission, granted by the patron to the Parson himself, could be sufficient; because, the intent of the act of Parliament, requiring the consent of patrons, was not for any advantage or interest of the patron, to his own behoof, but to the behoof of the benefice, that the incumbent might meliorate the same; and so the patron was, by his right of patronage, as curator Ecclesiæ; but curators cannot authorise their minors by commission, at least the patron cannot give commission to the beneficed Parson himself, no more than he could renounce the benefit of the act of Parliament, and leave the Parson to himself; 2do, Before the tack was set, the Earl of Buccleugh, granter of the commission, was dead, et morte mandatoris perimitur mandatum. As for Francis Steuart's consent, he was not patron, not being infeft; but the King's decreet-arbitral imported only a personal obligeaient for Buccleugh to denude; so that if Buccleugh thereafter should have consented to another tack, that would have been preferred,

The Lords found that member of the allegeance of Buccleugh's being dead before the tack, not relevant to annul the same, as depending on his commision; but decided not the first point, whether commission could be granted by the patron to the Parson himself; but found the last member relevant to defend the tack; for the right of patronage being jus incorporale, might be transmitted by disposition, without infeftment; and albeit Buccleugh was not formerly denuded, even by disposition, so that if he had consented to another right, that, as more formal, would have been preferred; yet, there being no competition, the Parson cannot quarrel the want of the patron's consent upon that ground.

Fol. Dic. v. 2. p. 48. Stair, v. 1. p. 390. *** Dirleton reports this case.

1666. July 19.—The Minister of Morham having pursued a reduction of a tack set by his predecessor, upon that ground, that it was above three years, without consent of the Earl of Buccleugh, patron for the time; the tack was sustained, in respect Francis Steuart had consented, in whose favour Buccleugh, by a decreet-arbitral, Was obliged to denude himself of the patronage.

This decision seemeth to be hard, seeing Buccleugh was full patron, and Was not denuded by the said decreet; and the right of the patronage might either have been comprised from him, or disponed by him effectually, notwithstanding of the said decreet, which did not settle the right of the patronage in the said Francis his person, but was only the ground of a personal action against Buccleugh, for denuding him of the right of patronage; and as Francis could not present, so he he could no consent as patron to tacks, Upon these considerations, diverse of the Lords were of the contrary opinion.

Dirleton, No 25. p. 11.

*** A similar decision was pronounced, 5th July 1632, Sheriff of Forrest against Town of Selkirk, No 4. p. 6886. voce Infeftment.