Proof of immemorial possession not instructed by a decree mentioning a former decree where the possession was proved.
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The Bishop of the Isles pursuing Hamilton, a merchant in Edinburgh, for his teind fish taken in the Isles, which is a part of the Bishop's patrimony, the defender alleged, That he being a merchant, and not a taker of herring, cannot be liable for the teind thereof, any more than if one should buy corns in the market, or out of the barn-yard, he could be convened for the teind. It was answered for the pursuer, That it was the immemorial custom, that the first buyer from the fishers should be liable to the Bishop of the Isles for the teind of the fish bought; and, for proving thereof, produced a decreet at his predecessor's instance against some merchants in Edinburgh, which decreet did bear, that, in a former decreet, betwixt the same parties, the Bishops had proved immemorial possession against the merchants; 2dly, The instance holds not of buying corns in the market or barn-yard; but if any body should buy the whole crop, when it was upon the land untaken off, being in the sheaves or stooks, he would undoubtedly be liable, as intromitter, for the teind; so, if any merchant bought not upon the place where the fishes were taken, he was not liable; but buying the fish fresh, as they were taken, in whole boatfulls, and selling them there themselves, such merchants must be liable as intromitters. The defender answered, That the immemorial custom was indeed relevant; but a decreet against some few persons could not prove it against others, being inter alios actum; but here there was only a decreet bearing, that there was a former decreet in which that was proved.
The Lords sustained that member against those who bought the herring, and salted them themselves, to be proved by their oaths; and would not sustain the probation of the custom, seeing the principal decreet was not produced, unless that, at least, the testimonies proving that custom were repeated and produced out of the old process, that it might appear whether there were any ground of objection against the manner of probation.
