Jurisdiction of the Court of Session, in reviewing the procedure of Ecclesiastical Courts.
John Rutherford v. The Presbytery of Kirkcaldy
Date: 17 November 1785 Case No. No 188.
A sentence of a church-court affecting a party's civil concerns, though arising incidentally out of a matter of ecclesiastical cognizance, subject to review by the civil jurisdiction.
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The Presbytery of Kirkcaldy having taken offence at the behaviour of Rutherford in their court, on occasion of the settlement of a minister, as disrespectful, and otherwise improper, passed a sentence, by which he, a writer by profession, and who had acted as an agent in causes before them, was “declared incapable of appearing in future in that character at the bar of this presbytery;” and at the same time, Mr Rutherford was rebuked from the chair.
Rutherford, considering these proceedings as hurtful to his character and interest, instituted against the presbytery an action before the Court of Session, in which he concluded for the rescinding of the above sentence, for public notification of such rescission, and for a large sum in name of damages.
Pleaded for the defenders, Concessa jurisdictione, concedi videntur omnia sine quibus jurisdictio ista explicari non potest. The proceedings in question, therefore, as much as the purely ecclesiastical matter to which they referred, came under the independent jurisdiction of the church-courts, 11th August 1780, Robertson contra Kirk-session of Cupar, No. 185. p. 7465.
Answered, The incapacitating of the pursuer to act in the line of his profession, as it affects his civil, not his ecclesiastical state, belongs not to the jurisdiction of the church. Nor, until these proceedings be first shewn to have been necessary or proper, can they be justified by a maxim which it were absurd to conceive as giving a sanction to any act of injustice.
Observed on the Bench, This Court has not the power of reviewing those sentences which respect a man's status in the church. But the present is merely a civil matter; and though sufficient grounds for such a judgment, incapacitating the pursuer, might be figured, it appears in this instance ill founded.
Observed farther, The pursuer ought to have applied for redress by declarator merely, or by suspension, in neither of which processes the presbytery would have had occasion to appear; and if they had, they would, like a sheriff defending his own decree, have been found liable in damages. The presbytery having been improperly called in this action as parties, in support of their sentence, are entitled to expenses. As to these, however, this opinion was over-ruled.
The cause was reported by the Lord Ordinary; when
The Court sustained the reasons of reduction respecting the incapacity in futurum; but repelled them in all the other particulars; and found no expenses or damages due to either party.
Reporter, Lord Henderland.Act. M'Cormick.Alt. Robertson.Clerk, Home.
Fol. Dic. v. 3. p. 347. Fac. Col. No 233. p. 361.
