Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Sir John Scot
v.
The Archbishop of Glasgow

Date: 25 February 1680

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Sir John Scot, having right from the Earl of Lothian, who had the gift of patronage of the church of Ancrum from the King, in anno 1625; did thereupon present; and having obtained horning of course, did charge the Archbishop to try and admit. He gave in a bill of suspension; whereupon the cause was ordained to be discussed; and insisted upon this reason,—that he was not obliged to accept Ancrum's presentation, because he had a better right to the patronage; in so far as King James, by his charter, in anno 1608, to the then Archbishop of Glasgow, upon the bishop's resignation, disponed the bishopric with all benefices thereto belonging, with a novo-damus, enumerating the patronage of Ancrum as one of the benefices belonging thereto, cum omni alio jure the King had to the bishopric or benefice foresaid; whereby the Archbishop had right before Ancrum or his author.

It was answered for Ancrum, That he had obtained a decreet in foro against Archbishop Lightoun, declaring his right to this patronage; in which decreet the King's gift, now produced, was founded on; and yet the decreet bears,—“That the Lords having considered the rights produced, declared Ancrum's right.”

The Archbishop replied, That bishops cannot dilapidate their benefices directly nor indirectly, by omitting lawful defences; and therefore competent and omitted is not relevant against their successors, they being but liferenters. 2do. It cannot be questioned but collusion, in suffering decreets to pass, is a dilapidation; but this decreet is evidently collusive, bearing, That the Archbishop produced the King's gift, 1608, containing the patronage of Ancrum; and yet no mention of any defence founded thereon, which was obvious, the Bishop's right being anterior to Ancrum's: And though the decreet bears,— That the Lords did consider the rights; yet that could be only in relation to the allegeances of parties; but all the allegeance in this decreet is this dilator only,—No process till the dean and chapter be called.

It was replied, That if decreets in foro, against beneficed persons, cannot operate against their successors, they shall have greater privileges than the King; and no process for or against them, can be finally ended. And as to the collusion, it does not appear from the decreet; seeing the bishop's right was produced, and under the Lords' consideration. And the great mean of termination of pleas is, that, after compearance, nothing then competent and omitted can quarrel the decreet, even though there be no defence proponed, but the libel denied; much more where a dilator is proponed; seeing now it is declared by act of sederunt,—That parties cannot pass from their compearance, after dilators proponed and discussed, though sometimes they might.

The Lords found, That collusion did appear from this decreet; the bishop's right having been produced, and anterior, and an obvious defence thereupon, without any mention of the said defence: but delayed the interlocutor till the 29th of February.

Vol. II, Page 764.