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Mr. Archibald Graham, Bishop of the Isles, v John Charteris, &c. [1685] Mor 15647 (1 March 1685)
URL: http://www.bailii.org/scot/cases/ScotCS/1685/Mor3615647-045.html Cite as:
[1685] Mor 15647
Mr Archibald Graham, Bishop of the Isles, v. John Charteris, &c
Date: 1 March 1685 Case No. No. 45.
A churchman pursued the buyers of salmon caught upon the coast of his district for teind. Found, that he could not burden merchants with any such servitude, without use of possession of such a right.
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Mr. Archibald Graham, Bishop of the Isles, having charged John Charteris, George Wedderburn, and other merchants of Edinburgh, for £.4 Scots, as the price of the teind for each last of herring taken in the seas adjacent to his diocese, they, suspended, on this ground, That he was never in possession of any such teind-duty from them, who are not the slayers and first takers, but only the buyers at the second or third hand; and that all these decimæ minores seu vicaræ sunt locales et consuetudinariæ, et tantum in iis est præcriptum quantum est possessum, et non amplius; and even in the Popish countries, they are totally regulated by possession; so that sometimes the quota is not the decima, but the twentieth and thirtieth part. And, on the 24th of November, 1665, between this same Bishop's predecessor and the Fishers of Greenock, as observed by Stair, in his decision, No. 58. p. 10758. the Lords found they had prescribed an immunity of paying any teind to the Bishop for the fishes taken in their creeks, because he could not prove he had been in possession within these 40 years. And, in the case of Mr. George Shiels, Minister at Prestonhaugh, against his Parishioners, mentioned by Stair, Tit. of Teinds, No. 61. p. 10761. the Lords found a Churchman's possession of such teinds. did only tie the payers, but not others in the same parish, as to such species and kinds as they had not been in use to pay. And the decision recorded by Stair, 13th December, 1664, Bishop of the Isles against James Hamilton, No. 23. p. 15633. does nowise prove his possession, but, on the contrary, ordains him to adduce probation of the custom. And as to the demand of £.4 per last, it is most extravagant; for, by a decision in Durie, 26th July, 1631, Bishop of the Isles against Shaw, No. 17. p. 15631. it appears the price then was only a merk the last. And as to fish taken in alto mari, seeing it was not determined how many miles the Bishop's jurisdiction extends beyond the shore, he can claim no teind thereof. “The Lords, upon Harcarse's report, found the Bishop could not burden the merchants of Edinburgh with any such servitude and teind-duty, unless he proved that he or his authors had been in possession of exacting and getting payment thereof.”
Fol. Dic. v. 2. p. 437.
Fountainhall, v. 1. p. 850.
