Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Campbel of Ardchattan
v.
The Parochioners of Kinnivar

Date: 8 July 1631

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In a spulyie of teinds at the pursuer's instance, as infeft upon the erection of Ardchattan, erected heritably to the pursuer's father, in anno 1602; wherein the defenders alleging, that that title of erection was null, being granted in the year 1602, after the 119th Act of Parliament, 1592, which prohibits any erection to be granted, and declares all hereafter to be granted to be null; and the pursuer answering, that this Act meets not in this case, where the spulyie is not for teinds of kirk-lands but for teinds of other temporal lands, whereas the Act only prohibits erection of temporality, or of teinds of kirk-lands, as thir teinds are not;—the Lords repelled this exception, hoc loco, to annul the infeftment libelled, by way of exception, upon the reason of the said Act of Parliament; which Act, the Lords found, as it was conceived in the tenor and words thereof, and in the prohibition therein, extends only against erections of temporalities and teinds of kirk-lands: And albeit the meaning of the Act and rubrick thereof would seem to be alike for all teinds; yet, the tenor thereof being so specific, the Lords found that they could not enlarge the Act but by ordinance of the Estates. And so they found that the exception ought to be repelled in this place, and that the nullity ought not to be received, ope exceptionis.

Act. Mowat. Alt. Primrose. Gibson, Clerk.

Page 593.