Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 PROOF.
Subject_3 An extract of the sentence of a Presbytery deposing a minister, found not to be legal evidence of the fact; the minutes from which the extract was taken not having been signed by the moderator.

Mr David Dickson
v.
Thomas, Earl of Dundonald, and Others

Date: 6 February 1768

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[Faculty Collection, 128; Dictionary, 7464.]

Hailes. Here are two questions:—1st, Whether there is evidence of the deprivation? 2d, Whether, if there is such evidence, the Court can refuse to give it effect, by sustaining the charge for stipend. As to the first, We have here a formal extract of a most informal sentence. The minutes from which the extract is framed are confused, detached, blotted scraps. The sentence is at this day unsigned. It was no reason for not signing it, that the moderator did not approve of the sentence. His signing would not have implied his approbation of the sentence; but only that such a sentence was pronounced. The presiding member of a court must not decline the signing of a judgment, because the judgment is not agreeable to his own opinion. If the moderator had scruples, and if his brethren meant to indulge him in them, they ought to have appointed a moderator pro re nata to sign the sentence. Instead of this, they suffer it to remain unsigned, and to appear so in judgment. The law requires all judges to sign their judgments. Neither the law nor the practice of the church allows the sentence of ecclesiastical judges to remain unsigned. As to the second question, I think we cannot determine it, because here there is no sentence. Had there been a sentence, the civil court could not have entered into the inquiry whether it was just or unjust. The charger founds upon the Act 1584;—but that plea is erroneous, in two different ways. 1st, The Act 1584 was a temporary Act, and was repealed by the Act 1592. 2d, The Act 1584 mentions certain causes of deprivation, which infer loss of stipend; but it does not limit the causes of deprivation which infer loss of stipend. Thus no mention is made of lenocinium in that Act, and yet a minister might certainly be deprived of his office for lenocinium. Drinking treasonable healths has been the cause of more than one deprivation; and yet the Act 1584 mentions nothing of that kind. The standing law is not the Act 1584, but the Act 1592, which gives a greater latitude to the ecclesiastical courts, and allows every effect to sentences of deprivation according to the primitive discipline of the church. And it cannot be disputed that brawlers are among those who are said, in the evangelical institutions, to be unworthy of the episcopal office. So that, if the sentence of the Presbytery were regular, I should not hesitate to find that the civil court must hold it to be valid to every effect whatever. But as the sentence seems null, for the reasons already given, I am for finding the letters orderly proceeded.

Auchinleck. The question is, whether is Mr Dickson regularly deposed or not? The suspenders say that he is deposed. And they produce an extract of the sentence. An extract from a competent judicature is probative: but still, when that extract is challenged, we must look at the principal. The principal is not signed. There is no sentence. The minutes are interlined; have marginal notes, and detached pieces of paper pinned to them. For aught that we know to the contrary, the Presbytery may have recalled their sentence by some detached writing, which does not now appear. It is a disgrace for any court to produce such absurd proceedings.

Pitfour. A minister deposed has no right to stipend, and the civil court cannot interfere. But still there must be a sentence. If the moderator did not choose to sign, some one else ought to have been named to sign for him.

Coalston. Here the objection is, 1st, That the warrants were not signed. I should have had some scruple upon this head, for the Act 1686 has not been understood to relate to ecclesiastical courts. The other objection is, That the warrants are not probative. We cannot review the sentence of an ecclesiastical court: but, here, there is no sentence.

Kennet. Were Mr Dickson de facto deposed, the General Assembly alone could take cognisance of the merits of the sentence of deposition. What ever maybe the practice as to signing ex intervallo, here there are no regular warrants at all.

President. We have nothing to do either with the deposition or with the settling of another minister; but here we have no evidence of deposition at all.

On the 6th February 1768, the Lords found the letters orderly proceeded, in regard that no evidence of the deposition was produced.

Act. A. Elphinstone. Alt. A. Wight. Rep. Stonefield.