Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by Alexander Tait, Clerk Of Session, One Of The Reporters For The Faculty.

Magistratesof Forfar
v.
Carnegy

Date: 4 March 1775

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An inhibition of teinds may be passed from and derelinquished by not being insisted in for a tract of years, and by the acquiescence of both parties in a mode of possession contrary to what was intended by the inhibition. The Magistrates and Council of Forfar acquired right to the teinds of Lower, belonging to Mr Carnegy, who possessed the same under a very long tack from Fletcher of Restennet, the former proprietor of the teinds. It was alleged that this tack was expired, and that tacit relocation was interrupted by an inhibition in common form, executed by the Magistrates against Mr Carnegy, then a minor, anno 1740. Answered,—That, as nothing ever followed, or was done upon this inhibition till July 1774, when a summons was raised, it must be understood to be relinquished,—more especially as, since that time, Mr Carnegy continued to possess his teinds as formerly, paying the former tack—duty, which stands allocated to the minister.

Lord Auchinleck, Ordinary, by interlocutor, 4th March 1775, allowed the pursuers to prove, front de jure, the rental of Mr Carnegy's lands for the 1740, when the inhibition was used, and also for each year since. But the Lords, on a reclaiming petition and answers, “Found that the inhibition was derelinquished, and could have no effect,—and remitted to the Ordinary to proceed accordingly.