Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

The Executors of Mr George Hutchison
v.
The Magistrates of Irwing and College of Glasgow

Date: 3 January 1677

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Master George Hutchison, being indulged by the council to serve as minister to the kirk of Irwing in anno 1669, did accordingly enter and serve the whole charge. But, in anno 1672, there was an act of council, ordaining two indulged ministers for every indulged kirk, and declaring, that if they did not enter accordingly, the one half should be vacant, and should belong to the Colleges, according to an Act to be made in that session of Parliament. And some days after, there was an Act of Parliament made, applying the vacant stipends of all churches to the universities; yet the council, considering that few of the ministers entered in conjunction, did, by several Acts, grant the whole stipend to those who served the whole cure. The magistrates of Irwing gave bond to the College of Glasgow for the half of the stipend 1672, which was consigned; and a back-bond granted, that if the College prevailed against the minister's successors, it should be paid accordingly.

It was alleged for the College, That the warrant of the council to pay the minister's executors, was parte inaudita; and the indulged ministers having only right by the council's warrant, and during their pleasure, therefore they might and had declared the one half vacant, and apply it to the universities.

It was answered, That the College can have no right, because the act of council relates to an Act of Parliament to be made; which Act of Parliament bears only,—That where the kirks are vacant, the stipend shall be the university's; but this stipend was not vacant in anno 1672. 2do. Though the act of council had been simply to make the one half vacant, in favour of the universities, yet the council may repeal their own act, in whole or in part.

It was replied, That though they may repeal, yet it can only be ad futura; and this half year in question was long after the year was past, et fuit jus delatum, to the College; which thereby becoming their private right, the council could not take it from them.

It was duplied, That if this reason were good, the colleges behoved to have right to the half of all the indulged kirks in Scotland, for there is jus delatum in all time after the Act; but it is unquestionable that a general rule, proceeding upon the free pleasure of authority, without any antecedent private right, though thereby a benefit would accrue to any private party, yet thereby the same authority is in full capacity to recal their act, either as to the future, or, if it be so expressed, à principio. And, though private parties be secured of what they have recovered, as fructus bonæ fidei percepti, yet, so soon as the Act is repealed, their interest ceases as to what is not paid.

The Lords found, that the College had no right, by the Act of Parliament, but by the act of council; and found, that the council might repeal or qualify their own act, either as to time coming, or à principio, if they so express it; and that in this case, and of all the indulged ministers, they had given warrants to pay the whole to the indulged ministers, for all the years they had served alone; which warrants were granted after the years in which they had served.

Vol. II, Page 485.