Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN BAIRD OF NEWBYTH.

The Bishop of the Isles
v.
James Hamiltoun and Robert Learmount

Date: 9 December 1664

Click here to view a pdf copy of this documet : PDF Copy

The Bishop of the Isles having pursued James Hamiltoun, and Robert Learmount, merchant, for £4, for the teind of ilk last of herring bought by them from the fishers of the Isles, in the year 1663; the said teind-herring being an alleged part of his benefit: it was alleged for the defenders, No process; because the Bishop is not provided, per expressum, to the teind-herring, but only to the teind-fishes, great and small: and that they could not be liable therefor, they being neither slayers of the fish, nor outwaterers of the boats, nor furnishers of the provision; but only merchants in Edinburgh, who bought the same from the slayers, bona fide, from whom only the teind ought to be taken, and not from the merchants; and it was alleged, That a constant rate cannot be exacted, since the prices of the fishes alter yearly, more or less. To all which it was replied by the Bishop, That he offered him to prove, that his predecessors, Bishops of the Isles, have been in use to obtain decreets in foro, against the merchants, who were neither takers nor slayers, for the teind-herring bought by them, for four pounds for the last thereof. To which it was duplied, Non-relevant decreets; because there might have been collusion and a dispute inserted, albeit there was none; and this decreet being against neither party, cannot wrong thir defenders; and that a single decreet for one or two years is not sufficient to constitute a right of the teind-herring in the Bishop's person; and, as to the prices contained in this decreet, they cannot be a rule for the future, since they vary daily. The Lords debated the case very contentiously, and some were of the opinion to consider the Bishop's right abstractly from the former decreets; but others were of the opinion it were better to join his right and the decreet together.

Page 10.