Scottish Court of Session Decisions

Lord Justice-Clerk.—There are two questions here, 1. Whether Lord Hopetoun has made out a title to a vice-presentation? and, 2. Is it cut off by prescription? The first question depends on the act 1617, the proceedings of the commissioners, and the state of the titles. All cases of union under the commission 1617 seem to have been at the instance of the King's Advocate, and it is positively averred that in no decree of that commission extant is there any declaration as to the presentation, fixing alternate vices or otherwise. In this case both patronages were at the date of the decree in the person of Lord Binning, afterwards Earl of Haddington. They were held under different superiors, and with different destination of heirs. Then, in this state, the parishes were united by the decree before the Court, which, the pursuer alleges, is in exactly the same terms as all the other decrees of that commission, and he contends that the right of presentation of Auldcathy remained, just as that of Dalmeny, as it stood before the union, and necessarily fell to be exercised in terms of the statute alternis vicibus, while Lord Rosebery maintains that it merged in Dalmeny, and that no right of vice-patronage remained. But can we omit noticing that Lord Haddington at a future period conveys to Mr Monteith the lands of Auldcathy expressly with the right of patronage and advocation, and that he transfers in the same terms Dalmeny to an ancestor of Lord Rosebery. The titles in the one are just exactly the same as in the other. Now it is proved that there were a variety of unions under this statute. Then, if in none of them any thing is said of the exercise of vice-patronage, is silence here to decide the right? On the contrary, the principle recognised in the statute is given effect to where the decree is silent. Indeed the statute only declares the common law in such circumstances. Connell, p. 525, refers to an instance of this, July 1777, Brodie v. Earl of Moray (E. C.) Since that commission the Court have been in use expressly to provide in the decree, for the exercise of the presentation, but that does not effect unions by the commission of 1617, which did not follow that course. This view occurred to me, and I see no answer to it,—Suppose Lord Binning had been Succeeded in Auldcathy by a daughter as heir of line, and in Dalmeny by a nephew as heir-male, would not the heir of line have had the presentation as patron of Auldcathy? Then is there any alteration in the principle by going down to a later period when it passes to singular successors? I can see no ground for allowing such. It is said we must go on the intentions of Lord Binning, and we are said to have a clue to these in his supposed views for a prolongation of the tack of the teinds of Auldcathy. But I cannot see any trace of the intention supposed, and at any rate we must decide according to the principles of law, and I certainly do not understand that he intended to annihilate the patronage when he conveyed it with absolute warrandice, and, on the whole, I see no ground to doubt there is a sufficient title. Then has it been excluded by a prescriptive title in the person of Lord Rosebery? I think not, for I cannot hold there are sufficient grounds for prescription. On the first point I think the case new and open to further argument, yet at present I think Lord Hopetoun has made out his title.

Lord Glenlee.—The case is altogether new, and without precedent. As to prescription, it is clear there is not sufficient to exclude. On the other, and new point, I would like to have the opinion of the whole Court. Alternate presentation was the law of Scotland under the canon law before the Reformation; and these commissioners were only to supply the powers formerly belonging to the bishop, or other church officer. Now, the words of the act are, where the presentations belong to diverse patrons, the commissioners are to appoint the presentation alternis vicibus. But does that fix that, where both are held by one patron, though by different titles, if the succession splits, an alternate vice shall arise to the different heirs of the patron. That is just the question, and the great difficulty. Where the rights exist separately, the justice is clear, of preserving to each his own right; but I do not see the necessity or propriety to provide, that, where they belong to one person, if the patronages ever come into different persons, an alternate vice is to arise. I would rather think the policy is, where there is no right violated at the time, to retain the presentation single, and if once united, is it to be liable to be separated, at any distance of time—suppose only yesterday? No decided case touches this question. The only cases are of claims at the original union, or where it is admitted the patronages were distinct. The case approaching nearest is that of the Marquis of Queensberry. There were there four patronages, and the Marquis was held to have exclusive right to two vices, as proprietor of two of the patronages; but there was no decision, that, if separated, it would each give a vice in the united church. The right of presentation is not always necessarily connected with the right of patronage. Patronage was in its own nature a peculiar status, to which many rights belonged. The being patron or advocatus was, one way or other, a good thing. He was a sort of tutor or protector of the church, and bound to defend it; and he generally made a good deal out of it, by confidential leases, and otherwise. The right of presentation was only one of the rights attaching to it, and the act 1617 does not unite patronages, but only churches. In like manner, the act 1690 did not abolish patronage, but only took away the right of presentation, and there was nothing absurd in keeping up the patronage in the titles, notwithstanding the loss of the right to present. There may be rights arising therefrom; but it does not per se imply a right of vice presentation in a united church. Lord Rosebery requires nothing special, as he had the patronage of the church retained with which the other merged. But the case is very difficult, and I would propose to have the opinions of the whole Court.

The other Judges concurring, the Court (January 17, 1833), appointed the papers, with additional minutes, to be laid before the Judges of the other Division, and the Lords Ordinary, for their opinion. The following was returned:—

Lords Balgray, Gillies, Mackenzie, Corehouse, Fullerton, Moncreiff, Jeffrey, and Cockburn.—“The summons at the instance of the pursuer concludes for having it ‘found and declared that he has good and undoubted right and title to the right of patronage of the parish of Auldcathy, and that in consequence of its annexation to the parish of Dalmeny, he has right to the advocation, donation, and right of patronage of the church and united parish of Dalmeny, alternis vicibus along with the defender Archibald John Earl of Rosebery.’

“In consequence of the interlocutor of the Second Division of the Court, we have considered the cause, and the papers given in by the parties, and we have particularly observed that the patronages of Dalmeny and Auldcathy were derived from different authors, and held of different superiors; and we are of opinion, that the right of patronage of the parish of Auldcathy, which was held of the Duke of Hamilton, was completely vested in the person of Thomas Earl of Haddington, the common author of the parties, and that the same has been correctly, legally, and feudally transmitted to the pursuer, with all the privileges thereunto annexed by law.

“It is indisputable that the right of patronage, when once feudalised, is an heritable and feudal right, and therefore, in its exercise, in its transmission, and in its extinction, is subject to all those rules and principles of law, which are fixed, and are acknowledged to apply to all rights of that kind and nature.

“We consider that the defender has pointed out no legal or relevant grounds upon which the pursuer can be deprived of his right, or by which it can be extinguished.

“We are clearly of opinion, that the mere union of the two parishes or churches of Dalmeny and Auldcathy did not extinguish the respective rights of patronage separately vested in the parties concerned, but that the same existed thereafter, with such rights and privileges as were consistent with law and practice. This appears to us, in the case of union, to be the rule both of the canon law and of the law of Scotland. (See Mackenzie, Obs. on the Act 1617, cap. 3). We therefore think that the pursuer is entitled to a judgment in terms of the summons.”