Scottish Court of Session Decisions

Subject_1 PATRONAGE.
Subject_2 SECT. II.

Vacant Stipend.

Cairnmont and Maxwell
v.
The Heritors of Kirkbane

Date: 17 January 1699
Case No. No 30.

A patron who had assigned the vacant stipend in trust, for his own behoof, was found to have forfeited his right to the administration of the vacant stipend for pious uses, and a donatary of the Privy Council was preferred.

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I reported Mr John Cairnmont, and Maxwell of Kirkhouse, his cedent, who pursued the Heritors of the parish of Kirkbane, for payment of the vacant ttepend of that church, cropt 1698, to him, as patron. And having obtained a decreet for the same before the Steward of Kircudbright, they suspended on this reason, that they were also distressed by Adam Craik of Arbigland, who had a gift of the same year's vacant stipend from the Privy Council, on the recommendation of the presbytery of Dumfries, on this narrative, that Kirkhouse, the patron, was a reputed papist, and so by the 23d act of Parliament 1690, had lost the patronage, and the same devolved to the presbytery: And Craik being admitted for his interest, contended, the decreet charged on was null; 1mo, Because this active title instructing him to be patron, was not produced; and though it be now given in, yet that should have been done in initio litis; and farther, offered to prove he was denuded of the patronage by expired adjudications, and voluntary dispositions; which the Lords found relevant, being proponed by some of his creditors adjudgers; 2do, By the foresaid act of Parliament, a patron misapplying the vacant stipend loses both that and the next vice; but so it is, Kirkhouse assigned it to Mr John Cairnmont, which is not in the terms of law, requiring, that they be employed on pious uses within the parish, which this is not. Answered, His assignation is but in trust, and his name only borrowed for the patron's behoof, and he is willing to declare his assignation is only of the nature of a factory to uplift it for the patron, that he may apply it to pious uses. The Lords remembered they had refused to sustain this to the Earl of Balcarras, and so found the assigning it was a misapplication, by which he lost the management and administration of it for this vacancy; and therefore sustained and preferred Arbigland's gift from the Privy Council; and the declaring now, ex post facto, that it was only a trust, is not sufficient to redintegrate and validate the same. Thus there was no necessity of determining the presumptions adduced to prove the patron was commonly holden and repute a papist, though he came now and then to the protestant church, with his testificates that he renounced all popish principles, and ready to subscribe the Westminster Confession of Faith without any mental reservation, equivocation, or dispensation whatsoever; but being determined upon the former grounds, the Lords did not dip upon this. By the canon law, if a patron fall poor, he is to be alimented out of the benefice which he or his predecessor founded or enriched, on this presumption, that the donation was with that implied quality.

Fol. Dic. v. 2. p. 48. Fountainhall, v. 2. p. 35.