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The Earl of Hyndford v The Hammermen of Edinburgh. [1709] 4 Brn 735 (15 February 1709)
URL: http://www.bailii.org/scot/cases/ScotCS/1709/Brn040735-0234.html Cite as:
[1709] 4 Brn 735
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 Earl of Hyndford v. The Hammermen of Edinburgh
Date: 15 February 1709
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The Earl of Hyndford against the Corporation of Hammermen of Magdalen's Chapel, in Edinburgh. When episcopacy was suppressed, in 1641, King Charles I. mortified a part of the bishops' rents to schools and colleges, and other pious and public uses; and, among other donations, he gave the deaconry of the hammermen in Edinburgh £100 sterling yearly out of the feu and teind-duties belonging to the bishopric of Dunkeld, for maintaining some beadmen. This gift proving ineffectual, Sir James Carmichael of that ilk, treasurer-depute, got it settled and secured, so as they were put in peaceable possession of it: Whereupon they, in gratitude, by their act in 1647, narrating the foresaid mortification, and his being instrumental in settling it, gave him and his heirs, in perpetuum, the presentation of one of the beadmen, providing he do it within six days after the vacancy is intimated to him. My Lord Hyndford, as the said Sir James's heir, pursues a declarator of his right against the hammermen; and that they should aliment a poor man presented by him.
Alleged,—Prescribed both in the positive and the negative way; my Lord's predecessors having never presented, nor they having received nor admitted any by the space of forty years bygone; and so it is lost non utendo.
Answered,—Prescription could not begin to run but from the death of the person last presented, and the intimation of the vacancy; which was never done.
2do, alleged,—The gift is now ob causam datam causa non secuta. The bishop's rents, which was the fund out of which they were paid, having ceased by the restitution of episcopacy in 1662, they cannot be liable to aliment his beadmen out of their own private pockets; for, sublata causa, tollitur effectus. But, if my Lord will prevail with the Queen, who has now the bishop's rents, to revive their old gift, they will willingly accept his presentation, otherwise no law can make them liable.
Answered,—That mortification of £100 sterling out of the bishop's rents was not the sole motive of granting this gift; but it bears also, for other onerous causes; and so cannot cease with its partial cause, but must be a perpetual right.
The Lords repelled both their defences, and declared. Yet severals were for trying what beadmen the incorporation had, or if they were wholly decayed; and if there were any still remaining, and out of what fund and stock they were maintained.
