Scottish Court of Session Decisions

Subject_1 PATRONAGE.

Same Parties

1751, June 26.
Case No. No. 4.

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Mr Cochran in February 1747 presented Trotter a probationer to be second Minister of Culross, which became vacant in November 1746, and produced a late charter from the Crown of the patronage on his own and Mr John Erskine's resignation, but the town of Culross claim the right of electing the second Minister by delegates chosen by them, as the first person who was ordained second minister of that Church in 1648 was elected, as appeared from the Presbytery books. The Presbytery moderated a call at large, which fell on Mr Fairnie, which was carried through the several Churches and was approven by them, but Fairnie refused to accept, and thereupon a new call was moderated and Mr Stoddart chosen. In November 1747 Mr Cochran pursued declarator of his right, and was opposed both by the Crown and the town of Culross. In November 1748 Stoddart was ordained Minister of the Church, and thereafter in the process with the Crown Mr Cochran condescended on a charter in the-records to his authors in 1683, and at last in January 1739 obtained a declarator of his right; and now Mr Cochran pursues the heritors for the vacant stipends; and the defenders did not oppose as to bygones before Stoddarfs settlement, but as to stipends after that time said there was no vacancy. The case was reported by Lord Justice-Clerk, and I was of opinion that Mr Cochran's right not being clothed with possession, and being disputed both by the Crown and the town, the Presbytery was not obliged to wait more than two years till he cleared his right, and therefore was for sustaining the defence. But the Lords thought that the opposition to Mr Cochrane right was affected and spirited up by the Presbytery, and therefore found that the Patron had right to the benefice, and preferred him to the Minister, me renit. Justice-Clerk, and Leven did not vote. Pro were Minto, Drummore, Strichen, Kilkerran, Murkle, Shewalton, Woodhall.