Scottish Court of Session Decisions

Subject_1 PATRONAGE.

Heritors and Minister of Lanark
v.
The Crown Factor

1753, May 9.
Case No. No. 6.

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This parish became vacant 4th August 1748, and Lockhart of Lee as Patron presented Mr Dick, and the town of Lanark claiming also the patronage presented Mr James Gray, Minister of Rothes, and in November 1748 the Presbytery preferred Lee's presentation as having the better right to the patronage. 20th December 1748, A presentation to Mr Gray was signed by the King, and with Mr Gray's acceptance was presented to the Presbytery in January 1749, and in March 1749 Lee raised a declarator of his right of patronage, wherein he called the Crown, the burgh, and Lockhart of Carnwath, and in April 1749 raised a declarator, wherein he called the Crown, the burgh, and Lockhart of Lee, and both declarators being conjoined, the Crown compeared by Lord Advocate to defend against both; and while that process went on in the Court of Session, many various proceedings were had in the Church judicature, which made the round twice of the PresPytery, Synod, and Assembly; and at last in October 1750, Mr Dick was by the Presbytery and Syond of Glasgow ordained Minister of Lanark. By the stops of procedure in the declarators Lee seemed at last pretty backward and dilatory, so that it was not decided till 10th July 1751, when it was found that for ought yet seen the Crown had the best right to the patronage, and was assoilzied from both declarators; and there upon in August 1751, the Court of Exchequer gave a factory to James Carmichael to levy the vacant stipends, and in consequence thereof a multiplepoinding was raised in name of the heritors, which was this day reported by Drummore. The Crown's factor claimed, because the Crown had duly presented and the Presbytery had not given obedience. The Minister claimed as being lawfully ordained, and though the Crown had presented, and is now found to have the best right for ought yet seen, yet that was not till after he was ordained, and that without any hurry, the vacancy having subsisted two years and two months; that Lee had produced a charter under the Great Seal in 1647 containing novodamns, since which there had been no opportunity of presenting till now, and Lee has had the only possession that could be had by gifting the vacant stipends for the use of the Minister's widow in 1708, and though that charter was found insufficient, being only passed in Exchequer without any warrant from the Crown, yet the Presbytery did right finding him in possession to obey his presentation, and could not let the Church remain vacant for years till the point of right should be settled; and the rule in the Canon law is in case of such disputes in patronage, that if they are not decided in four months from the vacJratey the Church must be settled. Lord Advocate replied, That the Canon law is not binding here, that the point of right would have been decided long before the set demerit had it not been Lee's affected delays till the settlement was over. At advising I gave my opinion, that the Church judicatures were not obliged to wait years till a controversy touching the patronage should be decided. That such was my opinion in the case of the parish of Culross, 26th June 1751, when I was single, that I thought the two cases quitt similar, but my opinion was still the same, as that was but one decision. Kilkerran and Drummore were both of my opinion in this case, and said there was an essential difference betwixt it and that of Culross, for that here there were two presentations, whereas there was but one in that of Culross, though there the town claimed the right of settling the second minister, and were so far in possession, that the second Minister first settled there was chosen by them, and since that time all the settlements were by calls without presentation, and what they insisted for was, the moderation of the call. The President thought there was a difference betwixt the two cases, but if he had been then in the Court, that I should not have been single, for that he would have been of my opinion. Upon the vote we preferred Mr Dick, the incumbent, renit. Milton, Minto, Justice-Clerk, and. Shewalton; and for the interlocutor were Strichen, Kilkerran, Karnes, Drummore, and I; and the President quoted a case of Sir Alexander Cumming, determined by the House of Peers, that he said was quite similar, where they found that Sir Alexander had the right of patronage; but in respect that the Church was settled, while there was one interlocutor of ours unaltered, finding some defect in his right, therefore they found, that the Minister settled had right to the benefice, and that on the motion of the Tate Duke of Argyle. 24th November, The Lords altered the last interlocutor, six to five, and the President and Justice-Clerk not here. 2d March 1753 Again altered, and adhered to the first interlocutor, six to five and Drymmore in the Chair.