Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
His Majesty's Advocate, and Henry Douglas, v. The Bishops' Vassals
1698 and
1699.
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[See the first part of the Report of this Case, Dictionary, page 6666.]
1698. December 28.—Mersington reported his Majesty's Advocate, and Henry Douglas, against several vassals and tacksmen to the late Bishops, (as mentioned 19th January 1698.) By the abolition of Episcopacy, the King became superior to their lands, and titular of the teinds belonging to them; and out of this fund he gives the late Secretary Johnston £4000 sterling, who, in the name of his Majesty, and Henrv Douglas, his trustee, pursues the foresaid heritors and tacksmen; for whom it was Alleged, 1mo, That so universal a reduction and improbation cannot be pursued without a special warrant from his Majesty; and his gifting a sum out of these casualties cannot support the action; for at this rate he may open all the charter-chests in Scotland, and propale their writs; which is of most dangerous consequence; and when the King's advocate attempted this in 1633, it created much trouble: and that private donatars should have the benefit of the King's causes has been refused; as to the Earl of Southesk against Melgum and Others, about Montreumont in 1680; and to the Lord Stormont against his Feuars, in 1696. 2do. Seeing he pursues in right of the Bishops, he must instruct their right to the superiority or teinds acclaimed; for, jure communi, the King is presumed superior, unless another be instructed; and, by the Canon Law, decimœ debentur parocho; and therefore the Bishops' right thereto must be instructed. See Stair's Institutes, book 4. tit. 24. Of the Petitory Right of Teinds; and 27th June 1665, Ferguson against Stuart.
Answered to the first,—They need no special warrant from the King, because the King's Advocate is empowered to pursue this cause by a commission from the Lords of the Treasury; which is equivalent to a mandate from the King. To the second,—The same action is competent to his Majesty that was to the Bishops; but, ita est, if they had been pursuing, they needed not produce the rental-book of the bishopric, but only their patent, constituting them bishops of such a diocese.
The Lords repelled the defences, and sustained the process.
It was likewise debated, but not decided, If the King's right, by the abolition, extended not only to what belonged to the Bishops, but also to the lands and teinds of other dignified persons, as abbots, priors, chapters, deans, &c. or if the same belongs now to the patrons of the benefices, where they are not already erected, conform to the 26th Act of Parliament in 1693.
Vol. II. Page 29.
1699. January 31.—In the action, mentioned 28th December 1698, Hary Douglass against the Bishops' Vassals and Tacksmen, debated in presence this day; the Lords found the commission from the Exchequer to pursue this reduction, bearing only, To inquire into lands holden of archbishops and bishops,—this could not be a warrant to call for any who held of deans, chapters, or other inferior dignified persons: though it was contended, that Bishop was nomen universale et collectivum, that comprehended all the inferior degrees; and they had all fallen to the King by the abolition of Prelacy; and they are specially enumerated by the 29th Act Parliament 1690. But the Lords found an improbation no such favourable case as to extend the word Bishop beyond its precise literal signification. 2do. The Lords found no process at the pursuer's instance until he produced the old rental-books of the bishopric, or some other document of their right or possession, to instruct, in some measure, that these lands or teinds belonged to that bishopric; else they might trouble the whole heritors of the diocese, and cause them produce their evidents, on pretence that they held of them.
How cautious our predecessors have been in propaling men's evidents, that it needed an Act of Parliament to do it for the Highlands and Isles, may be seen from Act 262, 1597. By the feudal law, the superior had an action to force his vassal to produce his writs, called Ostensio Monumentorum, and by us the Showing of Holdings; which went into desuetude when improbations were invented.
Vol. II. Page 39.
November 14.—In the action mentioned supra, 31st January 1699, Hary Douglas against the Bishops' Vassals; the pursuers procured a second explanatory gift from his Majesty, That he designed his gratuity to Mr Johnston, not only out of the feu-duties belonging to bishops, but likewise to the inferior beneficed clergy; and the pursuer now insisting on this supplementary title, and craving the defenders may take a term in the reduction and improbation, they Contended,—No law could oblige them to do the same; because the pursuer's active title being found lame and defective, any new gift impetrated from his Majesty cannot be retrotracted to support a process raised before the date there of, no more than an assignation posterior to a summons executed can be sustained as an active title therein; and whatever might be done where a single person is convened in a process, or where ’tis an ordinary action for payment, yet it were hard to dispense with so necessary a point of form in an improbation, where a whole country-side is convened.
Answered,—This process is not only at Mr Johnston and his factor's instance, but also carried on in his Majesty's name; and it cannot be doubted but the King has as good right to the casualties due to deans and chapters as those of archbishops and bishops; and, therefore, there can be no need of raising a new process, seeing they are willing to give them as long terms as the Lords please for production; and, in many cases, titles have been allowed to be produced cum processu; and if improbation of the writs of a barony be pursued, I will be permitted to reply that such a roum or parcel of land is part of that barony, and will get a term to prove it.
The Lords, after a debate in presence, sustained process on this second gift, without necessity of raising a new summons thereon; but allowed them a competent time to see it in the clerk's hands.
