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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Captain Wishart v The Bishop of Edinburgh. [1674] 2 Brn 179 (26 November 1674) URL: http://www.bailii.org/scot/cases/ScotCS/1674/Brn020179-0429.html Cite as: [1674] 2 Brn 179 |
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[1674] 2 Brn 179
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.
Date: Captain Wishart
v.
The Bishop of Edinburgh
26 November 1674 Click here to view a pdf copy of this documet : PDF Copy
The Bishop of Edinburgh, Wishart, having died about Lammas 1671, his son pursues the present bishop for the quots of all testaments that were, or might have been confirmed, before his father's death, or within half a year after, by virtue of the ann. It was alleged for the defender, That the quots, being due for confirmation, could only be due to those that did confirm; and that they are no part of the yearly rent of the bishop, having a legal term; but are a part of the casuality due only for, and when confirmations of testaments are granted; in the same way as the duplications of feu-duties of vassals, or compositions for entering singular successors; so that the late bishop could have no right but as to what he actually confirmed, and so can have no ann of confirmations made after his death: as, if a commissary-clerk or fiscal had died after the bishop, but within the time of his annat, the bishop's executor could not pretend to the compositions granted by such officers. 2do. There was no ann due to bishops before the late Act of Parliament in anno 1672, at which time Bishop Wishart was dead. It was answered, That the quots are the most considerable part of the bishop's revenue, and might have been set in tack, for a yearly duty, at the ordinary terms; and that the anns were due by an act of the bishops, upon a
commission granted by King James, produced in process; and that the said Act of Parliament did only alter the endurance of the ann,—that it could extend no further than a term's revenue after the incumbent's death; whereas, before, it might have reached a whole year, because, by the canon law, annus inceptus habetur pro completo. The Lords found, That the bishop had an ann, by virtue of King James's Act; but found he had no right to the quots of testaments but such as were actually confirmed or decerned; but did not determine whether those actually confirmed after his death, within the ann, would belong to him. Vol. II, Page 286.
The electronic version of the text was provided by the Scottish Council of Law Reporting
