Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.

Procurator-Fiscal of the Isles,
v.
Wallaces, Executors of the late Bishop there

Date: 18 June 1670

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There was a competition betwixt the commissary of Glasgow and the commissary of the Isles, who had the right of comfirmation of the Bishop's testament.

Alleged for Glasgow,—That regula regulans of confirmations is domicilium defuncti et ubi habebat focum et larem: but so it is, he had his residence, his wife, his bairns, and his family, in Glasgow; and though he was Bishop of the Isles, and died there, yet he had not so much as a pot or a pan there; and when he went there it was only itinerarly, but noways animo remanendi.

Alleged for the commissary of the Isles,—That he being Bishop there, presumptione seu fictione juris he must be presumed to have had his residence there; at the least, by the law of God and the ecclesiastical canons, he ought to have resided there: Item, he divided the year and staid all the winter in Glasgow, but the whole summer he was constantly in the Isles. And where it is said he had also his armour and plenishing, both spiritual and temporal, at Glasgow; Sir George Lockhart offered him to prove he had both books and brand in the Isles: Item, he died there. As to the non residence Glasgow answered,—that the rest of the clergy had dispensed with that, in respect of his valetudinariness.

The Lords Find the Isles should be preferred, if at the time of his death he was there animo remanendi, which they offered to prove.

Act. Wallace. Alt. Lockhart. Advocates' MS. No. 25, folio 75.