Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

The Archbishop of Glasgow
v.
Thomas Cranstoun and Robert Davidson

Date: 5 July 1677

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In a reduction of the gift of the clerkship of Peebles, granted by the late Archbishop Lightoun, to the said Cranstoun and Paterson, conjunctly and severally, and longest liver of them two, of the whole benefit, profits, and casualties of the said office, upon these two reasons:—

lst. That it was a non habente potestatem; Bishop Lightoun, the granter, never having been legally transplanted from the bishopric of Dumblane to the see of Glasgow; without which, by the common law expressing the several solemnities of transplantation, no bishop can have right to the place and office, to which he hath only a right of provision by signature. The second was, That the right of clerkship being made to two conjunct persons, and longest liver of them two, It was a dilapidation of the benefice; and seeing one of them might die before the granter of the gift, so the survivor, without any new title from a new bishop, could never enjoy that office, and the benefit thereof; but ought to be at the disposal of the new bishop.

It was answered to the first, That Bishop Lightoun being transplanted upon the demission of the pursuer, and provided to the benefice upon a signature passed the Great Seal, it was a lawful title, and needed not the ceremonies of a transplantation, which are not ordinary.

It was answered to the second, That a clerk's office being no part of a church benefice; and the fees and casualties belonging to them for their personal service et ratione officii; the bestowing of any such place is no dilapidation of the church rent: and it is ordinary and lawful to present conjunct persons, not only to be clerks, but to be commissaries, and to belong to the longest liver of them: and as to the case now in question,—viz. the commissariat of Peebles, which is so large, that there being four commissariat committees, at several places, there was reason and necessity for making more than one clerk.

The Lords, as to the first, did sustain the answer, and assoilyied from the reduction; upon that ground, That the canon law, and formal ceremonies of transplantation, being only appointed by the Romish church, and never established here since the Reformation, they found that the king's signature, under the Great Seal, gave a full right to the bishops, without transplantation; especially in this case, where Bishop Lighton's signature was founded upon the same pursuer's resignation. As to the second, upon the desire of the archbishop, it was ordained to be heard in præsentia; though many of the Lords declared their judgment, that as Commissary Falconer, and his son, now Lord Newtoun, were both provided to one place in the commissariat of Edinburgh, and the longest liver of them, so the clerkship of the commissariat being but a naked office, and they having no church benefice, the gift could not be reduced upon that reason of dilapidation.

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