Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
The Heritors and Town of Hadington v. The Earl of Hadington
1676 and 1677
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1676, December. —The Duke of Lauderdale, Clerkington, Barns, and sundry other gentlemen, heritors within the parish of Hadington, raised a declarator against the Earl of Hadington, and Mr James Forman, whom he had presented to be second minister at the kirk of Hadington; to hear and see it found and declared, that the patronage does not belong to the said Earl, and therefore the said minister to be removed. This last part of the summons, I think, will hardly be sustained; for Hope, in his Collection, lib. 2. tit. 14. Of the Patronage of Kirks, fol. 78, shews the incumbent will bruik the benefice during his life, albeit the patron's right be reduced; but the first alternative is unquestionably relevant.
Advocates' MS. No. 517, § 10, folio 268.
1677, November 20th. —In the declarator, mentioned supra, [ Number 517, Section 10,] at the instance of the heritors and town of Hadington against the Earl of Hadington, that he hath no right to present the second minister of Hadington; the Lords advised the dispute this day; and finding that there was no writ produced anent the constitution of the second minister's provision, they, before answer, ordain either party to adduce what probation or evidences they can, for clearing quid vere actum erat at the first settlement of the second minister; if his provision should have been by voluntary contribution, or if the same should affect the teinds; and if there was any decreet of the commission for plantation of kirks in relation to the said provision; and whether Mr William Trent was presented by any of the parties, or how he came in.
Upon this both parties took out diligences, and led witnesses. See the informations beside me, and the practique of Dr Reid's heirs their right of presenting the bibliothecar at Aberdeen; and how far the jus patronatus is individunm, that he who presents the first, must, by necessary consequence, have also the second, if another minister be judged necessary at that place. Some thought the rights of all parties so obscure, that it might be reputed a waiff patronage, and as caduce devolve to the King, none of the pretenders having a clear title thereto.
Advocates' MS. No.658, folio 308.
[See the subsequent parts of the report of this Case, Dictionary, p. 9903.]
