You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
The Minister and Heritors of Ashkirk v Sir Gilbert Elliot of Headshaw. [1702] 4 Brn 532 (23 July 1702)
URL: http://www.bailii.org/scot/cases/ScotCS/1702/Brn040532-0028.html Cite as:
[1702] 4 Brn 532
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
The Minister and Heritors of Ashkirk v. Sir Gilbert Elliot of Headshaw
Date: 23 July 1702
Click here to view a pdf copy of this documet : PDF Copy
Sir Gilbert Elliot of Headshaw, Advocate, against Mr. Gordon, minister at Ashkirk, and the other heritors.
Sir Gilbert having obtained from K. William the right of patronage of that church, which conveys the right to the tithes over and above the minister's stipend, there is a reduction of the said gift of patronage raised by the minister and some of the heritors, on this reason, That it was contrary to the 126th Act, Parl. 1593, declaring all gifts of patronage null, unless the consent of the beneficed person in possession be had and obtained thereto; which was not pretended in this case. At calling, it was craved, that Sir Gilbert, defender, might take a term in the reduction and improbation to produce the King's gift called for.
Alleged,—That I cannot be obliged to produce, neither to you, the minister, nor to the heritors, because ye have no title nor interest to crave the same: 1mo, Not the minister, because he is no beneficed person, but only a stipendiary. 2do, That Act 1593 is rescinded, and on the matter taken away by the 23d Act 1690 and the 26th Act 1693, where they who were formerly titulars and parsons are now turned to stipendiaries: but the truth is, the minister of Askirk is a mere stipendiary, as appears by his decreet of locality produced. 2do, As the minister has no interest to force production, so neither have the Heritors, because they produce no right nor infeftment of the patronage in controversy, as the defender does; neither needs the gifting of patronages any previous dissolution, or subsequent ratification of Parliament, they not being annexed to the Crown, nor any Act impeding his Majesty's interposing of patrons betwixt the heritors and himself,—he coming to be patron by the abolition of Episcopacy, and succeeding in their place: neither does the 2d Act of Parliament 1606 take any room here.
The Lords found the pursuers had no interest; and, therefore, Sir Gilbert was not bound to take a term in the reduction to produce his gift of patronage. The ministers and heritors protested for remedy of law to the Parliament.
