Scottish Court of Session Decisions

Subject_1 BONA FIDE PAYMENT.
Subject_2 SECT. I.

Payment of Rent by Tenants.

Urquhart Minister
v.
The Laird of Friergrees

Date: 24 November 1671
Case No. No 9.

In an action at the instance of a prelate, against intromitters with teind, for payment of the old duty; this exception found relevant, that they had paid their master, who let stock and teind together undistinguished.

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Urquhart, minister at the kirk of, pursuing his parishioners for the vicarage tithes, alleged intromitted with by them before the year of God 1647:—It was alleged for the defenders, That they were tenants to their masters to whom they had made payment of a joint duty for stock and teind.—It was replied, That the minister being titular of the vicarage, consisting in particular species, they were of a different nature from parsonage teinds, which were only decima pars fructuum crescentium, and so might be set by the heritors with the the stock, who receiving a joint duty for both, were only liable to the titular; but it was not so in vicarage teinds, whereof an heritor could give no valid discharge, having no pretence of right.

The Lords did assoilzie the tenants; and found, that a tack being set to them, they were in bona fide to make payment, unless the minister had intimated his right, and put them in mala fide; and thought that it would be of a dangerous consequence after 20 years silence, to question tenants for payment to their masters, they not being obliged to know any other person's right.

Fol. Dic. v. 1. 112. Gosford, MS. p. 204.