Hairgrieve and Janet Donaldson v. The Ministers and Kirk-Sessions of Linton and Eckford
Date: 13 July 1749 Case No. No 323.
Justices cannot ordain a minister and kirk-session to proclaim banns of marriage.
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The Ministers and Session-clerks of the said two parishes, having refused to proclaim the banns of the said persons in their respective parishes, for this cause, that they would not comply with the established custom to consign a dollar, which is to be restored in the event it appear that they have not become impatient before marriage, were by them pursued before the Justices of the Peace of Roxburghshire for said refusal; who, notwithstanding a declinator of their jurisdiction, proceeded to give sentence, “Ordaining the respective Session-clerks to make proclamation of the pursuers banns on Sunday then next; and after proclamation made, to give proper certificates thereof, with certification. ”
This sentence being complained of by bill of suspension, the Ordinary, before whom it came, “Refused the bill;” but the suspenders having reclaimed, the Lords appointed the bill to be seen; at the same time declaring their opinion in such a manner, that it is not likely the case will be again heard of.
The Lords were clear, that there lay no jurisdiction with the Justices of the Peace to judge in such matters; and the remedy, in a case of a groundless refusal, was thought to be for the parties to protest upon the refusal to proclaim; and that in that case there would be no penalty due for marrying without proclamation.
Fol. Dic. v. 3. p. 359. Kilkerran, (Jurisdiction, &c.) No 6. p. 314.
