In a process for the teind of fish, it was found relevant, that the defenders had been in immemorial possession in the place in question of cod and ling, free of paying any teind.
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The Bishop of the Isles, as being presented by his Majesty to the bishoprick of the Isles, and whole teinds, rents, and emoluments thereof, and as thereby having right to the great teind of all fish taken in and about the isles of Scotland, pursues the fishers of Greenock for the teind of cod and ling taken by them about the isles of Arran, Bute, and Ilsey; but insists only for those taken between Arran and Ilsey or Bute, and not between these and the shore, and insists against the fishers of Greenock, as fishing in that bounds. The defenders alleged, 1mo, Absolvitor; because the Bishop's right bore expressly, according as his predecessors had been in possession; and it was not libelled, nor could it he proven, that ever the Bishop of the Isles was in possession of the teind of any fish taken by the inhabitants of the main-land, albeit taken in the place libelled; 2do, Albeit that clause were not insert, yet all teinds of their own nature, and by the custom of this kingdom, are local and consuetudinary, and so can be craved out of no place, or for no particular, unless they had been accustomed to be paid of these particulars by that place; as in some places teinds are paid, not only of stirk and lamb, wool and milk, but of staigs, swine, hemp, lint, eggs, and some places of fruit, and in other places of none of these, and that within the same parishes; and therefore, unless it were libelled, that teinds had been accustomed to be paid in this place, they are not due; 3tio, Albeit a teind here were due of fish, it could not be due to the Bishop of the Isles, because such teinds being personal, and not predial, follow the residence of the takers, and not the place where they are taken; especially being taken not in any bay or creeck of the isles, but in mart libero, several miles from any isle except Ilsey, which is no island, but a rock inhabited by nobody; 4to, The defenders offer them to prove, that they and others upon that shore of the main-land have been in possession 40 years of a constant fishing of cod and ling in that place, free from all payment of teinds to the Bishop of the Isles, paying only two merks yearly to the tacksmen of the vicarage of Greenock, granted in tacks by the ministers of Greenock. The pursuer answered, that the clause in his charter was in his favour, and is to extend the same to all his predecessors possessed, bearing as amply, &c. and that for the possession, it was sufficient that which he had condescended, viz. that he offered him to prove, that through all his diocese, the small teind of fish belonged to the ministers as vicars, but the great tiend of killing, ling, and herring, belonged to the Bishop, and was possessed by him and his predecessors past memory; but he needs not allege that he possessed in every several place where fish happen to swim; but possesing generally about the isles, not only as to the inhabitants of the isles being in his diocese, but also being taken by the inhabitants of the main-land throughout the kingdom: And as in a, barony possession of a part will be sufficient for the whole, so it must be in this benefice; especially seeing that it is but late there was any considerable fishing in the place in question, and there was no reason, if herring and other fish change the lochs where they are ordinarily found, that because there was never herring teinded in that loch, therefore there was none due there.
The Lords found the defence relevant, viz. That the defenders, and others upon the main-land thereabout, had been in immemorial possession in the place in question of cod and ling, free from paying any teind to the Bishops of the Isles: But the Lords would not sustain less than immemorial possession of the freedom, in respect of the time the Bishops had been out; nor did they determine the right of the ministers of Greenock, whether they had right to the hail vicarage, or that as a small duty; but reserved that to them as accords: And they found, that the defence of a constant fishing elided the condescendence that this fishing was but new.
