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Scottish Court of Session Decisions >>
Dr John Smith and Dr George Robertson v The Duke of Argyle. [1798] Mor 12215 (16 May 1798)
URL: http://www.bailii.org/scot/cases/ScotCS/1798/Mor2912215-356.html Cite as:
[1798] Mor 12215
Dr John Smith and Dr George Robertson v. The Duke of Argyle
Date: 16 May 1798 Case No. No 356.
A decree in foro, approving of a sub-valuation, to which the minister was a party, cannot be called in question by his successor.
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Part of the teinds of the parish of Campbelltown, belonging to the Duke of Argyle, were valued by the sub-commissioners in 1629; and in 1772 his Grace got the report approved of by a decree in foro.
In 1797, Dr Smith and Dr Robertson, the ministers of the parish, the former of whom had been settled subsequent to the decree of approbation, brought a reduction of it, on the ground that the valuation had proceeded without proof, and without the consent of the minister; 4th February 1795, Fergusson against Gillespie, voce Teinds.
In defence, the Duke founded on the decree of approbation, and contended, that supposing the plea of the pursuers to be otherwise well founded, it was barred by the exception of competent and omitted.
The Lord Ordinary “repelled the reasons of reduction.”
In a reclaiming petition, the pursuers
Pleaded; The defence of competent and omitted is good only against the parties in the former litigation, having the full administration of their own property, or their representatives; Erskine, B. 4. Tit. 3. § 3. Hence it cannot be pleaded against minors; Bankton, B. 1. Tit. 7. § 89.; Erskine, B. 1. Tit. 7. § 38.; 11th December 1705, Murray, No 132. p. 9001; nor against a fiar, upon a decree obtained against a liferenter. But a minister does not represent his predecessor; and his right both to the spirituality and temporality of the benefice is merely usufructuary, being restrained from alienating the former by common law, and the latter by statute 1572, § 48. As a minister, therefore, cannot directly hurt the benefice by dilapidation, it follows a paritate-rationis, that he cannot do so indirectly, by omitting to state the proper defences in any action with regard to it.
The Lords refused the petition, without answers.
Lord Ordinary, Justicc-Clerk Braxfield.For the Petitioners, W. Robertson.
Fac. Col. No 72. p. 165.
