Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
The College of Edinburgh v. Sir Robert Hepburn
Date: 23 February 1681
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The College of Edinburgh having charged Sir Robert Hepburn of Keith, and other heritors of Humbie parish, upon the Act of Privy Council, for their vacant stipend; the Lords, on report, found the patron jure communi had right, sede vacante, to the stipend since the expiring of the Act of Parliament 1672, given them for seven years to the Universities; and preferred Sir Robert as patron to the College; notwithstanding of the Act of Privy Council prorogating the Act of Parliament and giving them the vacant stipends. Which was to make an interfering of jurisdictions, and cause the Session annul summarily Acts of Privy Council. Only some of the Lords of Session are patrons of churches, and they looked on the Act of Privy Council as parte non citatâ nec auditâ, and null, unless the several patrons had given their assent thereto. And the 115th Act Parliament 1592, and first Act 1612, give the patron the fruits, if he present a qualified person, and he be refused; and though the Parliament may prejudge patrons (where their consent is also tacitly implied,) yet the Privy council cannot. By the canon law, the patron had the fruits sede vacante, but not for his own private use, except he fell poor; but he behoved to apply them to a public or pious use. Craig says, Fructus, vacante sede, hodie apud nos ad principem aliumve patronum pertinent, quorum rationem reddere non tenentur.
By the old canons, the vacant fruits were divided into three, viz. to the next entrant succeeding; the fabric of the church; and the poor. The Pope after this assumed the disposal of them; in whose place our king succeeds by the Act of Annexation 1587, though teinds be not there annexed.
