price thereof to be payed by the Heretors to the saids Titulars of Erection with a burden of Annuity to the King excepting the Teinds of the Surrenderers own proper Lands being always subject to His Majesties Annuity Which Submission His Majesty accepted and there followed thereupon an Instrument of Resignation at Whitehall May 14. 1628. There was also a Submission made by the Bishops of all Teinds belonging to them or their Patrimonial Kirks providing they be not damnified in their Benefices as they were then possessed either in quantity or quality whether the samine were payed in Rental Bolls or drawn Teind so that the Submission did only reach to Teinds that were in Tack or other use of payment and whereof the Bishops or beneficed Persons were not then in Possession by Rental Bolls or drawn Teind this Submission was in Anno 1628. There is also a Submission by the Burrows of their Teinds in the same year and a fourth Submission by several persons having right to Teinds in Anno 1629. The King did pronounce His Decreet Arbitral upon the Submission of the Lords of Erection upon the second of September one thousand six hundred and twenty nine whereby He Ordains the Lords of Erection to have ten years Purchase for the Feu-duties and all their constant Rents consisting of Victual or Money the Victual being reckoned at an hundred Merks the Chalder deducing so much of the Feu-duties as were equivalent to the Blensh-duties contained in the Infeftments of Erection for which nothing was to be payed and allowing the Lords of Erection to retain the Feu-duties untill they were redeemed His Majesty did also decern that each Heretor shall have his own Teinds that such as have right to other mens Teinds shall after valuation thereof whereby the fifth part of the constant Rent which each Land pays in Stock and Teind is declared to be the Teind and where the Teind is valued severally that the Heretor shall have the fifth part of the yearly value thereof deduced for the Kings ease and the price of the said Teind for an Heretable Right was made nine years purchase And for other Right of Teinds inferiour to Heretable Rights proportionably according to the worth thereof to be determined by a Commission to be granted by His Majesty to that effect and that both for Tacks of Teinds and Patronages There are also Decreets by His Majesty upon the other Submission to the same purpose and by the tenth and fourteenth Act Par. 1633. the Superiorities of all Kirk-lands are annexed to the Crown except these belonging to Bishops with the Feu-duties of the said Superiorities reserving to the Lords and Titulars of Erections who subscribed the general Surrender of Submissions Their Feu-duties till they be redeemed at ten years purchase and reserving to them the Property holden of His Majesty for payment of the Feu-duties contained in the old Infeftments preceeding the Annexation By the 12. Act Par. 1633. the King restricts his general Revocation in October 1625. Registrate in the Books of Secret Council February 9. 1626. in a Proclamation then emitted and another July 21. 1626. to the annulling all pretended Rights to the Property of the Crown as well annexed as not annexed whereof an account hath been made in Exchequer and of the principality unlawfully disponed by His Predecessors against the Laws and Acts then standing and to the annulling of Erections and other Dispositions of whatsoever Lands Teinds Patronages and Benefices formerly belonging to the Kirk and since annexed to the Crown and any other Lands and Benefices Mortified to pious uses and of Regalities and Heretable Offices and the change from Ward to Blensh or Taxt-ward since the year 1540. Upon this progress it may be questioned whether the Patronages that formerly belonged to Church-men and were annexed to the Lands Burrows or Benefices and thereafter were erected in Temporal Estates do belong to the King or Lords of Erection And next whether these more improper Patronages of the Patrimonial Kirks of Abbacies whereby the Lords of Erection coming in the Abbots place do claim the Right of Presentation or Nomination of Stipendiary Ministers to these Kirks do belong to them or the King As to the first there seems less difficulty that the Patronage which did belong to Abbots of Kirks which were not of their Patrimony but whereof they had only jus presentandi do belong to the King because such Patronages are annexed to the Crown by the general Act of Annexation which though it does not mention Patronages yet the Barony or Benefice wherein such Patronages were comprehended were expresly annexed And Barony or Benefice being nomina universitatis will comprehend Patronages Incorporate therein or annexed thereto so that without Dissolution no Subject can pretend right to the Ecclesiastick Patronages of Abbots Priors c. and as to the Lords of erection who fall under the exceptions of the general Act of Annexation they having submitted and surrendered all their Titles of erection to the King and particularly their Patronages and thereupon the King having by His Decreet Arbitral Ratified in Parliament reserved only to them their Property Lands and Teinds and Feu-duties till they be redeemed and the Superiority being again annexed which is the dominium directum of these ecclesiastical Baronies the ecclesiastick Patronage of the Abbots comprehended in nomine Barroniae do therewith belong to the King unless they have been Disponed after Dissolutlon or a Subjects Title to the Advocation Donation or Right of Patronage of such Kirks be perfited by prescription for the act of prescription 1617. hath no exception of the Kings Right to which the prior act that the King should not be prejudged by the neglect of His Officers doth not extend but that interruption within the fourty year is requisite even for the King the form whereof was ordered by the Lords of Session and approven by Parliament 1633. cap. 12. But there is much more difficulty as to the other point concerning the Patronage of these Kirks that were parts of the Patrimony of the Abbots which before the Reformation were not Kirks patronat but patrimonial but thereafter being dissolved and declared distinct Paroch Kirks The Abbots power of nomination of Viccars in these kirks became to be exercised by Presentations to the Kirks which Presentations were given by the King to some Kirks even where there were erections but in most erections the Lords of erection did present as coming in place of the Abbots and did in their Original or subsequent Right insert the Patronage of some or all of the Patrimonial Kirks of these Abbacies and where the Right of Patronage is not exprest the Lords of erection have but small ground to pretend to these and where they are exprest and perfited by Prescription they are secure so that the question will remain as to the power of presentation to the patrimonial Kirks of Abbacies where prescription hath not cleared the question but that sometimes the King sometimes the
Lords of Erection have presented which was largely debated in November 1677. concerning the Patronage of the Kirk of Allan whereunto the Laird of Watertoun had presented as deriving Right to an erection prior to the Act of Annexation and having desired from the Council Letters to Charge the Bishop to grant Collation upon the foresaid Act of Parliament ordaining Bishops to try and Collate upon the Patrons presentation the matter was remitted by the Privy Council to the Lords of Session in respect that the Officers of State did claim right to that patronage as belonging to the King whereupon the Lords did at first sist any further progress in admitting either the person presented by the King or by Watertoun till the matter were discussed but after hearing the Cause at length in their presence Wattertoun having alledged that his Author had an erection bearing the Patronage of this Kirk per expressum and that such Patronages were not annexed to the Crown because they were not comprehended in the Abbots Rights such Kirks not being then Patronat but Patrimonial and that the King in his Decrect Arbitral had determined nothing anent Patronages but that the Lords of erection had always enjoyed the same and that the Lords of erection retaining the right of the Teinds the patronage belong to them as consequent to the Teinds out of which the provisions for the Kirk is payable and it being answered for the King that though the Abbots had not the formal Right of presentation because the Kirks were not then patronat yet they had the right of Nomination or substitution of the Viccars who served in these Kirks in place of whom are now the Stipendiary Ministers these new patronages arise form the Dissolution of these Abbacies into distinct parochs must belong to the King and the power of nomination or presentation of these Stipendiars was comprehended in and annexed with these Benefices to the Crown by the first Act of Annexation but especially by the Annexations 1633. whereby upon the surrender of the Lords of erection of all their Rights and specially of their Patronages the King by his Decreet Arbitral had decerned to them only ten years purchase for the Feu-duty and nine years purchase for the Teind they could pretend to no more and so to no right of Patronage Likeas the King in the Interruption made by the 12 Act of Parliament 1633. did expressly declare that he will insist in his general Revocation as to the particulars enumerat in the Act of Interruption whereof patronage is one In this debate the Lords being desirous that the matter might be determined upon the clearest grounds and to know if prescription had cleared the matter and either party having alledged possession the Lords before answer Ordained either party to adduce all the evidence they could whether the King or Wattertoun and his authors had been in possession how long and what way TITLE XIX TACKS Where of Rentals tacite Relocation and Removing 1. The nature of Tacks 2. How Tacks become as real Right effectual against singular Successors 3. Who may grant Tacks 4. How Tacks may be set 5. The tenor of Tacks 6. The effect of obliegements to set tacks 7. Tacks become real Rights by possession 8. Tacks in Wodests after Redemption become valid 9. The extent and effects of Tacks 10. Tacks-men in possession need not dispute the setters right disputing as Heretable proprietar 11. The effect of Tacks whereof the Tack duty is payable to Creditors 12. Tacks are good active Titles for Mails and Duties 13. The effect of Tacks set to Husband and Wife 14. Kinds of Tacks 15. Rentals 16. The effect of Assignations or Sub-tacks of Rentals or other Tacks 17. The effect of Sub-tacks as to Tutors and Donatars 18. The effect of Rentals in Court Books or Rental Books only 19. The endurance of Rentals 20. The effect of Grassoums 21. How far Rentals become void by Alegnation Assignation or Subtack 22. Defect of Sub-tacks 23. Tacite Relocation 24. How Tacks fall in escheat 25. Tacks sleep during Ward and Non-entry of the setter and are valid against his LiferentEsheat 26. Tacks are Strictissimi juris and extend not to Heirs or voluntary Assignays or Sub-tacks or Removing but when exprest except Tacks for Liferent or equivalent 27. Tacks without Ish are null 28. How far Tacks to endure till a sum be payed are valid 29. Tacks are null without a Tack Duty 30. Tacks are valid though not expressing the Entry 31. Tennents must labour and not waste or open the ground for any Minerals 32. Tacks become void by two years not payment of the Tack-Duty 33. Or for not finding Caution to pay the Tack-duty bygome and in time to come 34. Or by the Tennents Renounciation 35. By contrary consent of both parties 36. By deeds contrary to the Tack 37. Or by removing 38. Summar Removing without warning in what cases 39. The old way of Removing Tennents 40. Warning of Tennents to Remove 41. The active Title in Removeings 42. Exceptions against Removings not instantly Verified are not receiveable till Caution be found for the Violent profites 43. Defences against Removing and replys thereto 44. Violent profites 45. Succeeding in the Vice of Tennents Removed 1. ATACk of it self is no more then a personal Contract of Location whereby Land or any other thing having profite or fruit is set to the Tacks-man for enjoying the fruit or profite thereof for a hyre which is called the Tack-duty which therefore did only obliege the Setter and his Heirs to make it effectual to the Tacks-man but did not introduce any real Right affecting the thing set and carried therewith to singular Successours 2. But so soon as the thing set ceassed to be the setters the Tacks could not reach it Thus it was with us tillthe Statute Par. 1449. cap. 18. whereby purchasers and singular Successors were disenabled to brake the Tacks set to the Tennents By this Statute Tacks become as real Rights affecting the ground And because they cannot come the length to be esteemed as Rights of Property they are ranked here amongst Servitudes personal for as Liferent-rights are real Rights putting a Servitude upon Hereditaments to the person of the Liferenter during life whereof a Liferent-tack is a kind so other Tacks do subject the thing set to the Tacks-man for a time and affect the same though it pass to singular Successors albeit the Statute only expresseth that buyers shall not break Tacks and is in favours of the poor Labourers of the ground for whose security it was chiefly intended yet it is extended against all singular Successors whether by Sale Exchange Appryzing Adjudication or any other way as the Statute beares in whose hands soever the Lands come and also in favours of all Tacks-men whether they be labourers of the ground or not whereby Tacks are now become the most ordinary and important Rights and if the great favour of this Statute made them not in other thingsto be strictly
stood the like relation betwixt Patrons and Kirks patronat as betwixt Patrons and Libertines the ground whereof was an eminent good deed done by the Patron or his Predecessor to that Kirk especially these acknowledged in Law Patronum faciunt Dos AEdificatio fundus Signifying the building of the Church or giving of the Stipend or of the Ground necessary for the Church Church-yard Manse or Gleib were the grounds for constituting the Patronage which were sufficiently instructed by custom of the Kirks acknowledging such a Patron It was lately contraverted who should be patron of a second Minister whose Stipend was constitute not out of the Teinds but by Contribution and ingagement of a Town for the greatest part and the Heretors of the Landwart paroch for the rest whether the patronage and power to present that second Minister should belong to the patron of the Kirk having the unquestionable power of presenting the first Minister or the Contributers in which competition the patron of the Kirk was preferred because the contributers had never been in possession of presenting nor had reserved the patronage nor power of presenting in the erection of the second Minister which was only by an Act of the Bishop and presbytry bearing the shares contributed for a second Minister but neither Reservation nor protestation by them concerning the patronage or power of presenting the second Minister nor was any thing of custom or possession to show the meaning of the parties November 18. 1680. Town of Haddingtoun contra the Earl of Haddingtoun This case will not prejudge Erections of second Ministers in most of other Towns in the Kingdom where the Erection doth bear reservation of the patronage But for clearing of the derived Right from the first patron especially to singular successors the patronage was ordinarly conveyed by Infeftments carrying expresly Advocation Donation and right of patronage of such Kirks Such Kirks then as acknowledged no patron are fully free and these are provided not by presentation but the ordinar conveyeth pleno jure whereby the Incumbent hath right to the Benefice and full Fruites But in Mensal Kirks the Incumbent hath but a Stipend and these belong to the proper patrimony of Prelats who have right to the Fruits thereof as a part of their own Benefice and therefore are called patrimonial or mensal Patronage is also either Laick or Ecclesiastick Laick is that which belongs to secular persons Ecclesiastick that which belongs to Church-men as when a Bishop hath the right of presentation to a Kirk not in his own Diocess there he presents but another must confer as Ordinar and so he is but Ecclesiastick patron 28. Kirks patronat required for the entry of Ministers a presentation of the patron presenting a person to the Church and Benefice to be tryed by Church-men having that power and giving him the right of the Benefice or Stipend being found qualified and Collation of the Office and Institution therein by Church-men upon tryal without which the Incumbent could have no right yet where the Bishop had the power of Collation and Institution and to confer pleno jure a Gift from the Bishop conferring and admitting was found sufficient without a distinct Presentation and Collation July 4. 1627. Minister of Sklate contra parochioners But in Kirks not patronat Institution and Collation was sufficient And of late the Act of Ordination or Admission of Ministers by presbytries served for all But in Benefices without cure as prebendries or Chaplanries presentation is sufficient without Collation and Institution March 14. 1622. Scot contra Penman 29. Ministers being thus Entred have Right to their Benefices or Stipends during their incumbency which they need not instruct by Write but it is sufficient to prove by Witnesses that the Minister or his predecessors have been in possession of that which is contraverted as a part of the Benefice or Stipend of that Kirk and that is commonly holden and repute to be a part thereof for there being no competent way to preserve the Rights and Evidents of the Kirk amongst successors in Office as there is of other Rights amongst other Successors The Canon Law attributeth much more to possession then the Civil for thereby possessor decennalis or triennalis nontenetur docere detitulo Which was not only extended to instruct that the thing possessed belonged to the Benefice but that the incumbent had sufficient right and therefore liberated prebendars from production of their provisions in the case of improbation Hope improbation Bishop of Galloway and Dean of the Chapel-Royal contra the prebendars This presumption would not be elided by any extrinsick Right Yea it will liberate from preduction of any written Right in Reduction and Improbation where there is no Right extent But if a Right be found by the oaths of Church-men or others to be extent in their hands the same will be presumed to be the Right by which they posses and it may be improven by a positive probation but not by a presumptive probation by way of certification concluding it false because the possessors declined to produce it or to abide by it when the Right is produced any exception may be proponed upon any thing contained therein and therefore an Annualrent of ten Chalders of Victual mortified by the King to the Chapel-royal was excluded by a Redemption thereof granted by the King voluntarly upon payment when the Bishops were supprest in respect the mortification boresuch a Right mortified which had therein a Reversion and therefore after Redemption thirteen years possession could not relieve the Right being Redeemed Neither could the Act of Restitution of Bishops restoring them to the Rights and possession they had before 1637. seing that could not hinder another party ro redeem July 11. 1676. Bishop of Dumblain contra Francis Kinloch A Ministers Stipend as to the use of payment and quantity was found probable by witnesses without write in possessorio as was lalely found Ministers Relict contra Earl of Caithness As to the time sufficient to give a possessory Judgement in Benefices or Stipends upon possession without Evidents in write but being holden and repute as a part of the Benefice The Canon Law Regula Cancellariae 33. determines it to three years peaceable possession which is rather as to the Incumbents Right that after three years possession he cannot be questioned during his Life I find not our Decisions so clear in it but it cannot exceed seven years possession which gives a possessory Judgement in Infeftment of property c. it was so found November 25. 1665. James Petrie contra John Mitchelson The like about that same time Mr. Alexander Ferguson contra Lievtennant Collonel Alexander Agnew Ministers also during their Incumbencie may set Tacks according to the Rules for setting of Tacks by Beneficed persons before exprest which are valide and effectual though the Incumbent be deprived or transported par 1592. cap. 115. 30. Ministers Stipend are ordinarly allocat out of the Teinds of particular Lands and
power 〈◊〉 detain the whole Fruits of the Benefice in his own hands as is clear in the said last Act Par. 1592. cap. 115. Thirdly Patrons are Tutors and Guardians to their Church without whose consent the Incumbent can set no Tack longer then for three years Par. 1594. Cap. 200. Patrons had also an indirect interest in their own Benefices where the Ministers had an ordinary Stipend settled to them by long custom or modification yet far within the worth of the Benefice The Patrons used to present them to the Benefice but withal took Tack of them to confident persons to their own behove carrying the superplus of the profite of the Benefice over and above the accustomed Stipend of their predecessors which hath not been quarrelled as a Symoniacal Paction or Dilapidation It seems also that Patrons for resemblance of personal Patronages ought to be Alimented out of the Benefice if they come to necessity according as their Benefice may bear though there hath occurred no occasion to question or try this point but by the Act of Par. July 23. 1644. Session 1. c. 20. The power of disposing of the vacant Benefice or Stipend was taken from the Patron and Stated in the Presbytrie and Paroch to be disposed upon for pious uses and by Act of par 1949. c. 39. The power of presentation is also taken away yet thetitle 〈◊〉 unsitly design that Act an abolution of patronage for there is no more there taken away but the power of presentation but on the contrary where the patron could have no Interest in the Benefice of Teinds but indirectly as aforesaid that declares the Heretable Right of the Teinds over and above the Stipend to be in the Patron but with necessity to dispone the same to the Heretors for six years purchase but these Acts are now Rescinded and patrons returned to their ancient Rights but they are excluded from the Fruits in the Vacancie which are applyed to pious uses for seven years and thereafter during his Majesties pleasure par 1661. cap. 52. and the Vacancies for seven years after the year 1672. are applyed to Universities par 1672. cap. 20. Ecclesiastical Benefices were so ordinarly patronat that there were scarce any free but all were presumed o be patronat and where the right of patronage did not appear to be established in any other the Pope was presumed patron before the Reformation and after the Reformation the King is presumed patron jure Corona where the right of another patron appeareth not There are other patronages belong to the King jure privato as when the King or his predecessors acquired any rights of patronages from any private person or when the King or his predecessors founded or doted the Benefice or when any Lands or Baronies fall in the Kings hand as Superiour by recognition or forefaulture all such having annexed thereto or comprehended therein the Advocation Donation and Right of patronage of any Kirk the King doth thereby become patron all those patronages are at the Kings dispose and transmissible to any Subject by the Kings proper deed either annexing or incorporating the same in Baronies or Lordships or by distinct Gifts for the patronage doth ordinarly pass as annexed to Lands Charters of Burghs Baronies or Lordships yet they may pass without Infeftments as jura incorporalia But there are other patronages which by Act of Parliament are annexed to the Crown either expresly or when Baronies Lordships or Benefices are annexed to the Crown if therein patronages of any Benefice were comprehended they are annexed though not exprest for Barony or Benefice are nomina universitatis being united and erected and therefore the Barony or Benefice without expressing Patronage do carry the same by Resignation Appryzing Adjudication Recognition or-Forefaulture as well as Salmond fishing or Milns But these Patronages being a part of the annexed Patrimony of the Crown cannot be disposed by the King without a publick Law or by a special Act of Dissolution for particular reasons of publick good anterior to the Kings Gift and Ratifications in Parliament which pass of course and are accounted but private Rights which will not establish the same though in the Ratification there be a Clause of Dissolution which is always understood to be as a private Right and not a publick Law The Patronages of all Bishopricks belong to the King who designs the person to be Bishop and though the Chapter may use the formality of Election they do not refuse the Kings Designation The order of this Election is prescrived Parliament 1617. cap. 1. where the Dean and Chapter are ordained to choose the person whom the King pleases to nominat and recommend he always being an uctual Minister of the Kirk who being Elected hath sufficient right to the Spirituality of his Benefice but not to the Temporality till he have a Charter from the King and do homage and swear obedience to him but the Arch-bishop of Saint Andrews is to be elected by the Bishops of Dunkel Aberdene Brichen Dumblane Ross Murray Orknay Caithness the Principal of Saint Leanards Colledge the Arch-Dean of Saint Andrews the Viccars of Saint Andrews Leuchers and Couper or most part of them Parliament 1617. cap. 2. And by the same Act the Arch-Bishop of Glasgow is to be Elected by the Bishop of Galloway Argile and Isles and the ordinar Chapter of Glasgow or most of them the Bishop of Galloway being Conveener of the Electors and now the Bishop of Edinburgh since that Bishoprick was Erected is by the Erection made an Elector and Conveener The King is also Patron of many Laick Patronages and there are several other Laick Patronages belonging to Subjects Ecclesiastick Patronages belong now only to the Bishops to whom some Kirks are patrimonial or Mensal the Fruits whereof are a part of the Bishops Benefice and the several Paroch Kirks are not distinct Benefices but partes beneficii but most be served by the Bishop himself or a Minister who is a Stipendiary and by the 19. Act Parl. 1633. all Ministers are appointed to be provided with sufficient Stipends being eight Chalders of Victual or eight hundereth Merks at least except in singular cases referred to the Commissioners for plantation of Kirks who are authorized as Commissioners of Parliament to value Teinds modifie Stipends and grant Localities for fixing thereof upon particular Lands The Bishops have the Patronage of some Kirks without their Diocies and do present to the Bishop of that Diocie but if the Bishop should acquire any patronage of a Kirk within his own Diocie that Kirk cannot be Patronat but becomes free and is conferred by the Bishop pleno jure for he cannot present to himself yet by the Collation the person Collated is not a Stipendiar but is Parson or Viccar and hath the full benefite of the Fruits except in so far as they are restricted by Tacks set lawfully by them or their Predecessors The common Kirks which were to be provided by the Bishops and their