Earl Cawdor v. M'Gillivray and Others and the Lord Advocate

Observed that it would have been a conclusive answer for the heritors as against the Crown in such an action to say that they had paid in good faith to the Crown, whose discharge was good to them against the pursuer.

Question whether the plea of bona fide per ception and consumption is available to the Crown.

This was an action raised by Lord Cawdor against Neil John M'Gillivray of Dunmaglass and others, conjoined with a supplementary action raised by the same pursuer against the same defenders, and also against the Lord Advocate. The original summons concluded against the first defenders for two different sums, being the surplus teinds due and payable to the pursuer as titular of the teinds, parsonage and vicarage, of the parish of Dunlichity, out of two divisions Page: 408 ↓

In these circumstances, the defenders pleaded, inter alia , that all parties interested were not called, and the Lord Ordinary ( Young ) thereupon afforded the pursuer an opportunity of making the Crown a party to the action.

The pursuer then raised an action of declarator against the Crown, in which he obtained decree in absence, finding that the Crown was not titular of the teinds of the parish of Dunlichity, and had no right to the surplus teinds therein.