Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Date: 10 March 1685
Archibald Graham, Bishop of the Isles, v. John Charters and George Wedderburn, &c
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Mr Archibald Graham, Bishop of the Isles, having charged John Charteris, George Wedderburn, and other merchants of Edinburgh, for £4 Scots, as the price of the teind for each last of herring taken in the seas adjacent to his diocese; they suspended on this ground,—That he has never been in possession of any such teind-duty from them, who are not the slayers and first takers, but only the buyers at the second or third hand; and that all thir decimal minores seu vicariæ sunt locales et consuetudinariæ, et tantum in iis est præscriptum quantum est possession, et non amplius; and, even in the Popish countries, they are totally regulated by possession, so that sometimes the quota is not the decima, but the 20th or 30th part. And, on the 24th of Nov. 1665, between this same Bishop's Predecessor, and the Fishers of Greenock, as observed by Stair in his Decisions, the Lords found they had prescribed an immunity of paying any teind to the Bishop for fishes taken in their creeks, because he could not prove he had been in possession within these 40 years. And, in the case of Mr George Shiels, minister at Prestonhaugh, against his Parishioners, mentioned by Stair, tit. Of Teinds; the Lords found a churchman's possession of such teinds did only tie the payers, but not others in the same parish, as to such species and kinds as they had not been in use to pay. And the decision recorded by Stair, 13th December 1684, Bishop of the Isles against James Hamilton, does no ways prove his possession; but, on the contrary, ordains him to adduce probation of the custom. And, as to the demand of £4 per last, it is most extravagant; for, by a decision in Dury, 26th July 1631, Bishop of the Isles against Shaw, it appears the price then was only a merk the last: and as to fish taken in alto mari, seeing it is not determined how many miles the Bishop's jurisdiction extends beyond the shore, he can claim no teind thereof.
The Lords, upon Harcus's report, found the Bishop could not burden the Merchants of Edinburgh with any such servitude and teind-duty, unless he proved that he or his authors had been in possession of exacting and getting payment thereof.
