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King's College of Aberdeen v Lord Falconer of Halkerton and Others. [1758] Mor 6568 (27 January 1758)
URL: http://www.bailii.org/scot/cases/ScotCS/1758/Mor1606568-021.html Cite as:
[1758] Mor 6568
King's College of Aberdeen v. Lord Falconer of Halkerton and Others
Date: 27 January 1758 Case No. No 21.
Herito is subjected to parsonage teind, are not bound to carry it to the titular.
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Lord Halkerton and other heritors of the parish of Marykirk, being charged to make payment to the King's College of Aberdeen, titulars of the teinds of that parish of certain quantities of teind-corn, the College insisted, That the heritors were bound to make their tenants transport the corn to any place at the option of the titulars, provided it be at no greater distance than the tenants by tack or custom are bound to transport the farm-corn payable to their landlords. The heritors having the victual ready to be delivered upon the ground, but refusing any carriage, the matter was brought before the Court of Session. The point of favour was chiefly insisted on for the chargers, That it would be a small matter to the heritors to carry their teind-corn to the next port, but great charge and trouble to the College. The heritors, on the other hand, contended, That if this claim were well-founded, they themselves must be at the expense of carriage, their tenants not being bound to carry any corn but what belonged to their landlords. They observed, that there is no difference betwixt payment of money and payment of corn: A debtor by a bond of borrowed money, wanting to make payment, must indeed carry the money to the creditor; but if the creditor demand payment, he must apply to the debtor, and take the money where the debtor resides. The case is the same in the payment of corn. If the heritors want to get free of the teind corn, they must carry it to Aberdeen; but if willing to wait till a demand be made, the titulars must take delivery upon the ground.
The charge accordingly was suspended, the Court being of opinion, that the heritors were not bound to carry the teind-corn.
It is clear, that the corn must be delivered either where it grows or where the titular lives. If the latter, the heritor runs the risk of carriage, whether by sea or land. There appears no foundation for subjecting him to such a burden. 2dly, A titularity is a subject of commerce, and the College of Aberdeen may acquire right to the teinds of a parish in Galloway. At that rate, heritors might be subjected to an intolerable burden. The chargers, it is true, confine their demand to the same carriage that the tenants perform to their landlords. But this voluntary concession cannot enter into the argument. If they have a right to any carriage, it must be to Aberdeen, where the titulars have their residence. The tenants are not bound; and there is no law for subjecting the heritors. See Teinds.
