Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 WINTER SESSION. - Anni 1973.
Patrick Wiseheart v. the Commissaries of Edinburgh
1676.
June.
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Patrick Wiseheart, as son and executor confirmed to George, late Bishop of Edinburgh, pursues the Commissaries of Edinburgh, and their collector, for payment of the quot of the testaments of all persons who deceased within the diocess of Edinburgh before the death of his father; they suspend on double-poinding, against him and Mr Alexander Young, present Bishop of Edinburgh, who acclaimed them as truly belonging to him, in regard they were not confirmed till his entry to the said office, and so the consummation, and not the inchoation of the act, must be considered. In this competition, the Lords found these quots fell under the last Bishop's anne, and so prefer'd Mr Wiseheart therein.—In which the present Bishop had small loss, since at his decease the like will befall to his executors, as a part of his anne. See for annates, my observes on the act of Parliament in 1672.
This decision differs from the arrest of the Parliament of Savoy in a parallel case, observed by Gothofredus, a Bavo, in praxi sua criminali, pag. 86 et 87: A lord of a manor farms his lands, together with the jurisdiction of holding courts and reaping the emolument and obventions thereof; one commits a delict, and is processed for it; during the dependance, the tenant's right expires, and the land is of new farmed to another; he resumes the dittay, judges, condemns, and amerciates. Quæritur, To whom the mulct belongs, whether to him in whose time of his right the crime was perpetrated, or to him who pronounced sentence? That senate determined in favours of the second.
