Scottish Court of Session Decisions

This action arose in consequence of a vacancy which occurred in the parish of New Deer, in Aberdeenshire, by the death of the minister, the Rev. Mr Wallace, on 26th December 1875. The summons concluded for reduction of a judgment or ruling of the Moderator of the kirk-session of the parish and of the judgments respectively of the presbytery, and synod, and General Assembly affirming it. There were also declaratory conclusions to the effect that the pursuers, with the exceptions noticed below, were entitled to take part in the election of a minister, from which right they had been excluded.

The questions at issue involved a consideration of the following sections of the Church Patronage (Scotland) Act 1874:—(Sec. 3) From and after August 1874 “the right of electing and appointing ministers to vacant churches and parishes in Scotland is hereby declared to be vested in the congregations of such vacant churches and parishes respectively, subject to such regulations in regard to the mode of naming and proposing such ministers by means of a committee chosen by the congregation, and of conducting the election and of making the appointment by the congregation” as the General Assembly may frame from time to time; “provided always that with respect to the admission and settlement of ministers appointed in terms of this Act, nothing herein contained shall affect or prejudice the right of the said Church in the exercise of its undoubted powers to try the qualifications of persons appointed to vacant parishes. And the Courts of the said Church are hereby declared to have the right to decide finally and conclusively upon the appointment, admission, and settlement in any church and parish of any person as minister thereof.” Section 7 provides that “If, on occasion of a vacancy in any parish, no appointment of a minister shall be made by the congregation within the space of six months after the vacancy has occurred, the right of appointment shall accrue and belong for the time to the presbytery of the bounds where such parish is, who may proceed to appoint a minister to the said parish tanquam jure devoluto.” The term “congregation” was defined in the Act to mean communicants and such other adherents as the kirk-session under the Assembly's regulations might determine to be members of the congregation for the purposes of the Act.

The parish became vacant on 26th December 1875 by the death of Mr Wallace. On 26th June following, being the last day of the six months allowed by the Act, the congregation appointed a Mr Bruce, who retained the appointment for four months, viz., till 27th October, when he withdrew his acceptance. The presbytery thereupon claimed the right of appointment jure devoluto, but the claim was on 2d June 1877 disallowed by the General Assembly, which pronounced the following deliverance:—“Find that in consequence of the withdrawal of Mr Bruce's acceptance, by his letter of 27th October 1876, a vacancy arose at that date; but in consequence of the proceedings of the presbytery before rescinded, the congregation have hitherto been prevented from proceeding to exercise their right of election: Find, therefore, that the said right of election belongs for a period of six months from this date to the congregation; and remit to the presbytery and the moderator of the kirk-session to take without delay the steps required by the regulations of the General Assembly providing for the case of an appointment not being proceeded with owing to the resignation of the person elected.” At the date of this judgment, viz., 2d June 1877, the pursuers in the present action were all of them, eleven in number, parishioners of New Deer, and two of them, James Cassie and James Brown, were on the roll of the congregation made up in January 1876 for the election of a minister. The remaining pursuers were put on the communion roll on 1st July 1877.

Immediately upon the above deliverance of the General Assembly, the pursuers, on 4th June, applied to the presbytery to have a new roll of the congregation made up, in order that their names (with the exception of Cassie's and Brown's, which were already on) might be put on it, and that they should have a right to vote in the election of a new minister.

The presbytery on 26th June instructed the moderator of the kirk-session of New Deer to call a meeting of the congregation to take steps towards electing a minister, which meeting was accordingly held on 9th of July. At this meeting the pursuers, other than Cassie and Brown, claimed right to take part in the election; but the moderator, in conformity

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with instructions from the Church Courts, refused to allow anyone to take part whose name did not appear on the congregational roll of January 1876. A committee was then named, who proposed the Rev. Mr Bruce to the congregation, and on 10th September 1877 Mr Bruce was again elected as minister. The presbytery declined to sustain the appointment, and this decision was confirmed by the Church Courts.

Another meeting was held on the 25th of October 1877, when the pursuers, other than Cassie and Brown, again appeared and claimed to be put on the roll. The moderator refused, and a new committee was appointed. Mr Cassie, seconded by Mr Brown, had prior to that being done proposed that the parties who were the pursuers in this action, other than themselves, should be elected a committee of the congregation, but the moderator refused to put the motion to the meeting. The pursuers then protested and appealed. The minute of this meeting was the first sought to be reduced in the present action. This appeal came in succession before the Presbytery of Deer, the Synod, and on 30th May 1878 the General Assembly, who all affirmed the ruling appealed against. The deliverances of these bodies were the second and third and fourth documents of which reduction was sought.

The committee appointed on 25th October 1877 never reported to the congregation, and on 27th March 1878 the presbytery passed a resolution claiming the right of presentation tanquam jure devoluto. Following on this, they, on 24th April 1878, appointed the Rev. G. F. I. Philip to be the minister of New Deer.

The fifth document sought to be reduced was the regulations of the General Assembly enacted to be observed in the election of ministers during 1876 and 1877. These regulations in substance provided—(1) A moderator of kirk-session shall be appointed by the presbytery; (2) such moderator shall arrange for the kirk-session making up a roll of the congregation for the purpose of determining the persons entitled to take part in the election of a minister; (3) the roll of the congregation shall include, firstly, as communicants, all persons not being under church discipline whose names appear on the roll of communicants, and who have not ceased to be members of the congregation by receiving certificates of transference or otherwise, and secondly, as adherents, only such other persons being parishioners of full age as have claimed and are qualified in terms of the regulations on that subject; (4) the roll made up by the kirk-session is to be open for inspection, and is, on a day to be named, to be revised and adjusted, and thereafter attested, “and the roll so made up and attested shall be held to be the roll of the congregation for the purpose of the regulations, and a certified copy thereof shall be transmitted to the presbytery of the bounds.”

The action was raised in name of the pursuers as residents in the parish, and members and communicants of the congregation of New Deer, and was directed against the General Assembly, its moderator and clerks, the moderator of the kirk-session of the parish of New Deer, the Presbytery of Deer, the Synod of Aberdeen, and the presentee. The pursuers averred that the pretended right to appoint tanquam jure devoluto and the appointment of Mr Philip was directly referable to their illegal exclusion.

The pursuers' pleas were as follows:—“(1) The pursuers John Petrie and others being communicants and members of the congregation of the parish of New Deer, and on the communion roll thereof, were from 1st July 1877 entitled to take part in the election of a minister to the said parish. (2) The pursuers having been illegally deprived of their said rights, the judgments complained of were illegal, in excess of jurisdiction, and ultra vires of the Church Courts, and ought to be reduced. (3) The regulations of the General Assemblies of 1876 and 1877, in so far as they support the said judgments, and in so far as they exclude the pursuers' lawful rights, are illegal, in excess of jurisdiction, and ultra vires of the General Assembly, and ought to be reduced. (4) There being at the dates of the pursuers' illegal exclusion an unexpired period available to the congregation for appointing a minister, decree ought to be pronounced in terms of the declaratory and petitory conclusions of the summons.”

The defenders' pleas were, inter alia, as follows:—“1. The pursuers have no title to sue, in respect (1) it has been finally decided that the pursuers, who are alleged to have been wrongly excluded, were not members of the congregation for the purpose of filling the vacancy in question; (2) the proceedings in question are not examinable by this Court upon any of the grounds stated; (3) even if an entirely new vacancy arose as at 27th October 1876, the pursuers, who are alleged to have been wrongly excluded, being none of them persons whose names appeared then on the roll of communicants, had no good claim according to the laws of the Church to be placed on the roll of the congregation for that vacancy. 2. The action is incompetent and ought to be dismissed, because the Courts of the Church of Scotland have sole jurisdiction in the matters alleged. 3. The action ought to be dismissed, because it is excluded by section 3 of the Church Patronage (Scotland) Act 1874. 4. The averments of the pursuers are not relevant or sufficient to support the conclusions of the summons. 5. The pursuers are barred by their proceedings in the Church Courts from challenging the validity of the regulation brought under reduction.”

At the instance of the Lord Ordinary ( Young) tha defenders added the following plea:—“(7) Separatim, the action cannot be maintained, the right of appointment having devolved upon and having been duly exercised by the Presbytery of Deer in terms of sec. 7 of the Church Patronage (Scotland) Act 1874”; and his Lordship thereafter pronounced an interlocutor sustaining that plea, and assoilzing the defenders. The following was the judgment delivered:—“Church patronage has since the Reformation, speaking generally, been governed by statute, and the rights of patrons have been regarded as civil rights, cognisable only in the Civil Courts. In 1874 Parliament, by the Act 37 and 38 Vict. cap. 82, transferred all such patronage from the then existing patrons to popular constituencies composed of persons who were presumably most nearly interested in its right exercise—namely, the congregations of the several churches and parishes as they became vacant, but ‘subject to such regulations in regard to the mode of naming and proposing such ministers by means of a committee chosen by the congregation, and conducting the election, and making the appointment

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by the congregation as might from time to time be framed by the General Assembly of the Church of Scotland.’ A provision is added to the effect that nothing in the Act shall prejudice the right of the church to try the qualifications of the appointees, together with a declaration in these terms—‘and the Courts of the said Church are hereby declared to have the right to decide finally and conclusively upon the appointment, admission, and settlement in any church and parish of any person as minister thereof.’ The general scheme of the statute is completed by the provision of section 7—that ‘if on the occasion of a vacancy in any parish no appointment of a minister shall be made by the congregation within the space of six months after the vacancy has occurred, the right of appointment shall accrue and belong for the time to the presbytery of the bounds where such parish is, who may proceed to appoint a minister to such parish tanquam jure devoluto.’

The questions raised in this case regard (1) the legal character and the extent of the right which the statute confers on the congregation of a vacant church and parish; (2) the extent of the power and jurisdiction thereby conferred on the Courts of the Church, including the validity of the regulations framed by the General Assembly professedly in pursuance of its provisions; and lastly, the operation of section 7 of the Act as applicable to the facts of the particular case. These questions were fully argued before me, and although I feel constrained, by reasons which I will try to explain, to put my decision on the last, I think it is necessary, or at least proper, not only to notice, but to express my opinion on the others in order to explain fully and intelligibly the grounds of my judgment.

I. With respect to the character and extent of the right conferred by the Act on the congregation of a vacant church and parish, I am of opinion that it is a civil right which, prima facie and in the absence of any provision to the contrary, is cognisable in the Civil Court; and that in point of extent it corresponds with the right of patronage that formerly belonged to the patron of the parish. The only distinction which the counsel for the defenders attempted to make between the former right of patrons and the existing right of congregations was that the former was saleable or marketable, which the latter is not. I do not think this, which is a mere incident, affects the quality of the right itself. Saleability is no criterion of the character of a right as civil or not, and instances of civil rights which are not saleable are numerous. Indeed the most important and conspicuous are not—such as personal liberty, character, and generally all the rights of citizenship, as recognised and protected by law. The statute on which the right in question stands describes it as ‘the right of electing and appointing ministers;’ and I think that every right conferred by Act of Parliament is a civil right, which, in the absence of provision to the contrary, is cognisable in the Civil Court, whose duty is to interpret and enforce it so that it shall correspond in fact to the description which the Act gives of it.

II. The General Assembly has authority—but only by virtue of the statute—to regulate ‘the mode of naming and proposing ministers by means of a committee chosen by the congregation,’ and the mode of ‘conducting the election, and making the appointment by the congregation.’ No further or other power of regulation or interference with a congregation in the exercise of its statutory right is accorded to the General Assembly by the Act. The power is thus, for intelligible reasons, strictly limited by the Act that confers it; and any congregation is in my opinion entitled to complain to the Civil Court if it is exceeded to the prejudice of their right—that is, of course, if it is not otherwise provided by the statute. The general rule is that the Civil Court—as alone possessing general jurisdiction to construe and enforce Acts of Parliament according to their true intent and meaning—has authority to correct any irregularity or restrain any excess in the professed exercise of a power conferred by statute. I know of no exception to this rule which does not stand on express enactment of the Legislature. And it is plain that when what is relied on as amounting to such exceptional enactment is pleaded, it must itself be construed by the Civil Court, whose general prima facie jurisdiction is thereby alleged to be excluded.

Parliament not unfrequently excludes the jurisdiction of the Supreme Court in matters which it is thought fitting on considerations of public policy or general convenience to commit to the exclusive jurisdiction of some inferior tribunal; and a similar exclusion proceeding on similar considerations in favour of Church Courts, or, I should rather say, to the effect of conferring an exclusive jurisdiction on these Courts (for there is no favour in the matter), is quite intelligible, and without antecedent general improbability. But in both cases alike the question, if the parties interested differ upon it, must be referred as a question of statute law to the decision of the supreme Civil Court, which to this extent has undoubted and necessary jurisdiction. The pursuers here complain of the regulations framed by the General Assembly professedly in pursuance of the power conferred by the Act as being in excess of that power, and as having in consequence operated to the prejudice of their legal right. The defenders may, and indeed do, join issue on the question whether or not the complaint is well founded, and contend that it is not. But they plead prejudicially in the first instance that this Court has no jurisdiction in the matter, in respect that all jurisdiction on the subject is by the Act conferred on the Courts of the Church, and so finally on the General Assembly. The argument in support of this conclusion is substantially as follows:—The regulations complained of, say the defenders, relate to the appointment of ministers, and although the language of the Act empowering the Assembly to frame them may seem to limit the power, it must nevertheless be taken as practically unlimited or subject to no other limitation than the judgment of the Assembly itself, by reason of the declaration that the Courts of the Church (meaning the Assembly in the last resort) have the right to decide finally and conclusively upon the appointment of ministers.

I cannot assent to this argument, which plainly and avowedly goes to this—that the whole subject-matter of the statute is so within the power and control of the Church Courts that congregations have practically no rights whatever

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except such as these Courts may be pleased from time to time to accord to them. The language of the Act does not enable me to impute this intention to the Legislature, and indeed it is, in my opinion, not only antecedently improbable, but at variance with the whole scope and tenor of the statute, taken according to what I think its plain meaning. I have already pointed out how limited is the power conferred on the General Assembly to interfere by regulations with congregations in the exercise of the right given to them by the Act, and I have to observe that it is, so far as I know, unprecedented, as it would assuredly be objectionable, for Parliament to authorise the party on whom a limited power is conferred himself to judge of the limits imposed, and to exceed them if he saw fit, without remedy or redress to those who are thereby prejudiced. Of the power of Parliament to do so there is, of course, no question, but its exercise is so unlikely and so unprecedented that I should prefer any reasonably admissible construction of the language employed to that which leads to the conclusion that it has been exercised in this instance. Nor do I find it necessary to be astute or ingenious in order to find a construction of the Act which will avoid a conclusion so unlikely to have been intended, and so undesirable, as that which the defenders contend for. The declaration on which they rely is appended to and forms part (as necessary to complete it) of the provision that the Church Courts shall not be prejudiced in their right to judge ‘of the qualifications of persons appointed to vacant parishes,’ referring, I assume, not merely to their general qualifications, but to their particular qualifications, on ecclesiastical considerations, each for the individual parish to which he has been appointed. This is a substantial and indeed a very large power, and the whole provision, including the declaration immediately in question, is, in my opinion, satisfied by it, without the further effect contended for by the defenders, which is, I think, repugnant and insensible. The Church Courts may, no doubt, conceivably so act, under the pretext and guise of the powers which they admittedly possess, as to accomplish what they have no authority to do directly and avowedly; but I am persuaded that it would be unjust to deem them capable of doing so. I therefore decline to attribute to them powers which the statute does not give them, because they may conceivably exercise them practically, though indirectly, through the medium and under the cover of other powers which the statute does give them.

I am therefore of opinion that the General Assembly have not authority to frame any regulations they please, that they are not themselves the judges of the validity of their regulations, except, of course, in the first instance, and that any person interested may complain of them in this Court as in excess of the statutory power under which they necessarily profess to be framed.

The record is strangely silent respecting the pursuers' complaints on this head. At the debate their counsel urged these objections—(1) That the congregation is by the regulations debarred from taking any action whatever under the statute except on the summons, and with the authority of a clerical president, not of its number, but imposed on it by the presbytery; and (2) that authority is conferred on this stranger and clerical president to paralyse the action of the congregation if he sees fit, and to hinder and frustrate the proceedings of any meeting of which he disapproves, whether in the exercise of his own judgment or in pursuance of the resolution and consequent instructions to him of his presbytery. These objections were illustrated by reference to the actual proceedings in this case, which showed, the pursuers said, that under these regulations this particular congregation of New Deer had in fact been so controlled and hindered in the exercise of their legal right by the action of this foreign president, acting under the dictation of his presbytery, that the General Assembly thought it necessary in the result to afford them, with at least questionable legality, six months after the final decision of appeals (the proceedings in which consumed eight months), in order to exercise the right which in the meantime was improperly denied them, the congregation being all the while absolutely helpless.

I am unwilling to condemn regulations which were no doubt framed with care and good intentions; but I cannot avoid expressing my surprise that so much regulation in a very simple matter should have been thought necessary. I call it a very simple matter, for a congregation having to appoint a minister would no doubt find it so if let alone. It is indeed hard to see what difficulty a congregation would have in meeting to elect a committee of selection, and again to receive and decide on their report without the assistance and control of a clergyman appointed by the presbytery to preside over and to direct and control their proceedings, and that not necessarily according to his own judgment, but complicated with a minute code of regulations, and embarrassed besides by the orders of his presbytery, against which he might even think it only justice to himself to record his protest. It is apparently true that under the regulations a congregation cannot even meet with effect unless authorised and summoned by this clerical president; and if he declines to call a meeting, the only remedy (according to the contention of the defenders) is an appeal to the several Church Courts in succession up to the General Assembly, which meets for ten days once a year, and has (according to the same contention), absolute and supreme authority to allow the congregation to meet or not as it pleases, that is to say, to allow or not the congregation to appoint a minister. I must say distinctly, that, so construed, the regulations are repugnant to the rights of congregations under the Act. Had the Act conferred the right of appointing ministers to vacant parishes, not on the congregations, but on the Courts of the Church, with power to take such assistance from the congregation as they might see fit, the regulations would apparently have been quite in harmony with it.

If the contention of the pursuers is otherwise sound, they have a practical grievance to complain of, for they allege that, although members of the congregation and communicants on the communion roll thereof, they were excluded and debarred from taking part in the proceedings of the congregation to elect a minister, and that by the ruling of the president imposed upon the congregation by the presbytery acting within his authority under the regulations complained of.

III. Whatever may be the legal merits of the several questions which I have noticed, the fact

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in this particular case is that the parish of New Deer, which became vacant by the death of the last minister, Mr Wallace, on 26th December 1875, was on 24th April 1878 found to be still vacant, and without any subsisting appointment by the congregation. The presbytery accordingly on that date (24th April 1878) appointed a minister (the defender Mr Philip) jure devoluto under section 7 of the Act. It is not surprising that the presbytery should have thought that about two years and a-half was a period somewhat too long for the vacancy to have lasted, and that it was time for them to fill it in the interests of the parish, under section 7 of the Act. The pursuers dispute their right to do so, and so also did the defenders originally, although they afterwards saw fit, on my suggestion, to alter their view on this subject, and add a plea which they at first hesitated about, as apparently at variance with the opinion of the General Assembly implied by their judgment of 2d June 1877. The pursuers' objection is quite intelligible, and is in substance and effect this—that the congregation was illegally regulated out of its statutory right of appointment, and that the presbytery may not benefit by this as if the congregation had been negligent in the matter — (His Lordship here further narrated the facts).

At this time, that is down to the date of the Assembly's judgment, (2d June, 1877), the pursuers were not members of the congregation. It is not, I think, doubtful that the right of appointment had accrued to the presbytery before the date of the Assembly's judgment, and so before the pursuers had any interest in the matter. It is, I think, clear that if the congregation had allowed the 26th of June 1876 to pass without making an appointment, the right of appointment would, on the expiry of that day, have passed from them to the presbytery under section 7 of the Act.

In this instance, the General Assembly assuming jurisdiction in the matter, and also the possession of a large equitable power to modify and, indeed, override the provisions of the statute, found that the right of election belonged to the congregation for six months from 2d June 1877. The language of the judgment of 2d June 1877 indicates that the Assembly thereby exercised jurisdiction to decide between the presbytery and the congregation as competitors for the right under the statute to fill up the vacancy ‘that arose’ on 27th October 1876, and declared the right to belong to the latter, that is, to the congregation, and that for a period of six months. To this extent the Assembly plainly intended no favour or indulgence, but a simple decision according to their opinion of the statutory right. In allowing the six months to be computed from the date of their judgment, the Assembly presumably intended to exercise some equitable power which they were thought to possess, but in declaring that the right belonged to the congregation from the date when the vacancy arose, and endured for six months thereafter, they simply decided the case according to what they held to be the strict law of it under the statute, and gave the congregation nothing which could in their opinion be legally withheld. The legal question which the Assembly thus assumed jurisdiction to decide was a general and important one, namely, whether an appointment by a congregation on the last day of the six months allowed to them by the statute is efficacious to preserve their right for another period of six months in case the appointee shall decline to accept or withdraw his acceptance so that his settlement is not proceeded with. The pursuers must here maintain—contrary to their general argument regarding the jurisdiction of the Church Courts under the recent Act—that the General Assembly had jurisdiction to decide this question, and that their decision of it is conclusive, or otherwise that the judgment of this Court upon the question ought to be in accordance with that of the General Assembly as being right in itself. For if the right of the congregation was exhausted by the appointment of Mr Bruce, so that on his withdrawing his acceptance the appointment accrued to the presbytery jure devoluto, the pursuers, who were not then members of the congregation, have obviously no title, it being of course immaterial that the presbytery did not in fact exercise their right till April 1878. It being thus necessary for me to determine this matter, I have to say that in my opinion the General Assembly had no jurisdiction to decide the question, and that they decided it erroneously. I find nothing in the statute which can be construed as conferring jurisdiction on the Courts of the Church to decide a competition between a congregation and a presbytery as to which of them has the statutory right of appointment. It would be extravagant to suggest that the presbytery itself has such jurisdiction, and if it is in the Synod or the General Assembly it must be by express or necessarily implied enactment of the Legislature to that effect. I find none such, and I do not repeat the views which I have already expressed as to the limit and true meaning of the general declaration relied on by the defenders, these being in accordance with the general argument of the pursuers, although they are constrained by the necessity of their case to depart from it in this instance. On the merits of the question, I am of opinion that the congregation having delayed to make an appointment till the last moment, exhausted their right when they made the appointment, and that the General Assembly had no power to restore it to them, or grant them a new term on the appointment proving abortive by the withdrawal of the appointee. If at the date of the appointment by the congregation any portion of the six months remains over, the congregation may, in certain circumstances, be entitled to have an equal space of time allowed to them in order to make another. For this there may be reason, and also the authority of judgments under the former law, which may be thought applicable. But when the whole six months have been allowed to expire, and the appointment made on the last day, the congregation or other patron thus running the thing to the last, must, I think, take the risk of the appointment proving abortive, and cannot have the, vacancy continued for another term. The evil consequences of a different view of the law need not be imagined, for this case exhibits them practically. The parish of New Deer remained vacant for six months with an appointment made on the day they expired. This tardy appointment (it was as tardy as it possibly could be) failing, the vacancy continued till 2d June 1877, i. e., for about a year longer, when the Assembly allowed the congregation six months from that date to fill up the vacancy, thus maintaining the vacancy for it might be two years. It would not

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necessarily terminate even then, for an appointment made on the last day of the last term of six months might quite conceivably run a course similar to that of the appointment made on the last day of the first term, and so on without any legal limit that I can see. Nor, viewing the quesas one of legal right, can I find room for distinguishing between the failure of an appointment (being a valid appointment) by resignation and by the declinature of the Church Courts to sustain it on any ground competent to them. Both cases alike fall under the regulations providing for the case of an appointment not proceeded with, and are, so far as I can see, of exactly the same legal character. Yet when the presbytery on 28th September 1877 declined to sustain the appointment of Mr Bruce made on the 10th of that month, it does not seem to have occurred to any one that a vacancy thereby ‘arose,’ and that the right of election belonged to the congregation for six months from that date.

I have pointed out that Mr Bruce resigned his appointment (before induction) on 27th October 1876. The pursuers did not become members of the congregation till July following, and it is not alleged that in the interval (of about ten months) any appointment was made by the congregation other than that of 10th September 1877, of which the parties seemed to be agreed, I think properly, that no account can be taken. If it is assumed that during this interval, or any part of it, the congregation had the right of appointment, it may be that it was frustrated by the pretensions of the presbytery, and the consequent omission of their member who was appointed to the office of moderator of the kirk-session to afford the congregation an opportunity under the regulations of exercising it. This indeed is what the Assembly refer to in their judgment of 2d June 1877 as their motive for allowing the congregation six months from the date of it to exercise their right, and forcibly illustrates the inconvenience that may arise from the extraneous clerical interference to which congregations are subjected by the regulations in the performance of their duty or the exercise of their right, which they would, I think, find very simple if let alone to act as they pleased subject only to the ordinary rules of law. I think the congregation had not the right during any part of the interval referred to, and I am clearly of opinion that they had not after 27th April 1877, being six months from Mr Bruce's resignation. But assuming that they had, the denial of it or frustration of it was not to the prejudice or injury of the pursuers, who were not then members of the congregation. I make no distinction between the two first-named pursuers and the others, for although they were members of the congregation at an earlier period, and at least from January 1876, they make no separate case for themselves, but, taking common ground with the others, confine their complaint to the rejection of their motions and consequent failure of their attempts to have the others recognised as members of the congregation, and as such admitted to take part in election meetings. They were themselves so admitted, and they make no complaint on their own account other than I have stated.

It is perhaps superfluous to express any opinion on the assumption of the validity of the Assembly's judgment of 2d June 1877, but to exhaust the questions argued before me I may say that on that assumption I am unable to appreciate the argument on which the pursuers were excluded from taking part as members of the congregation in the proceedings consequent on it. The judgment was to the effect that such a vacancy occurred or ‘arose’ by the resignation of Mr Bruce; that the congregation had by the statute six months to fill it. If that was so, the right clearly belonged to the existing congregation, and the attempt so to ‘regulate’ the election proceedings as to exclude all members of the congregation who had been admitted within the preceding eighteen months or two years was quite indefensible. The roll of the congregation might have been brought down to date in a few minutes by reference to the communion roll, which is a satisfactory and authoritative register of the members of the congregation as existing at any time proper to be fixed on. The roll of electors is indeed only a copy of the communion-roll with the names of persons admitted by the session as ‘adherents’ added thereto. As to the “adherents,” there was in this case no question at all, while as to the communicants there was none, except only as to the competency of bringing the roll down to date with respect to them. I say ‘as to the competency’—for as to the propriety and even justice of the step, if competent, no one seems to have felt a doubt—and it is not wonderful that the moderator of session should have recorded his protest against the instructions given to him by the presbytery for the ‘exclusion, from the electoral roll, and from the right to vote in the election of a minister, of such persons in communion with the church as had become resident in the parish of New Deer since the roll of the congregation was made up in January 1876.’ I do not inquire whether these instructions are warranted by the Assembly's regulations. If they are, the regulations that warranted them are for that reason themselves unwarrantable and, I think, illegal, as leading to the exclusion of the statutory constituency in greater or less number as may happen. In the present instance it is admitted that fifty undoubted members were thus excluded, and had I been of opinion that the right of election was in the congregation when they were so excluded, I should have thought that they were entitled to a remedy in this Court, although in what form or to what effect I need not consider.

The opinion which I have expressed to the effect that the right of the congregation was exhausted by the appointment of Mr Bruce on the 26th June 1876, and that on his withdrawal the right of appointment accrued to the presbytery under section 7 of the Act, is conclusive of the case in my judgment. Having that opinion, I must disregard the Assembly's deliverance of 2d June 1877, unless, indeed, I thought it was entitled to be recognised as the judgment of a competent tribunal on a question within its jurisdiction, which, for the reasons I have stated, I do not. Were I able to assume, which I am not, that the congregation's right revived for six months after Mr Bruce's withdrawal, I should still be obliged to hold that the pursuers had suffered no wrong; for this six months expired before their membership began. Farther, even on the assumption that the Assembly had validly restored the right to the congregation for six months from 2d June 1877, I greatly doubt if I could, consistently with the operation and effect of section 7 of the Act as

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applicable to the facts of the case, grant to the pursuers the remedy now asked, which is, in substance, that matters shall, by reduction and declarator be restored to such a position that they may still take part in the election of a minister on the footing that the parish remains vacant, the appointment by the presbytery being set aside as illegal. On the assumption I am now making, the pursuers, and many others whom they may be taken as representing, were certainly, as I think, wronged; but whether they can have such a remedy as would necessitate the restoration of the parish to a state of vacancy, to be continued till they are righted in the form of being allowed to take part in the election, is another matter. It is an accident that the wrong complained of affected so many members of the congregation, for if it had affected only one member its legal character would have been the same; and I cannot say that the wrongful exclusion of one or even several electors would invalidate an appointment by the rest, or suspend the jus devolutum, and prevent the application of section 7 of the Act. Considerations of public policy and general convenience, as well as the true intention of section 7 of the Act, are here involved, and these might, and I think probably would, be found inconsistent with giving a remedy by restoration. I do not further pursue this view of the case, which does not arise according to the opinion which I have formed and expressed, and I have noticed it and the considerations which it seems to involve only that I might exhaust all the questions that were argued.

The result is that, in my opinion, this action cannot be sustained, and I put my judgment to that effect on the only ground on which I wish to rest, it by sustaining the seventh plea for the defenders, and in respect thereof granting decree of absolvitor, with expenses. I ought, perhaps, to observe that the only practical results that have followed from the erroneous view (as I think it) taken of the effect of Mr Bruce's resignation in October 1876 consists in the fruitless procedure and controversies consequent thereon, and the prolongation of the vacancy in the parish for an undue length of time, and that the validity of the appointment made by the presbytery is not affected by the delay in making it, which was in the circumstances excusable, and perhaps even unavoidable on the part of the presbytery, for although an appointment by them at any time after the 27th October 1876 would have been valid in my opinion, and entitled to effect accordingly without any power in the General Assembly to declare that it was not, the presbytery are certainly not censurable for not making it earlier than they did.”

The pursuers reclaimed, and argued, inter alia—The privilege of electing a minister was a statutory power and privilege, and they were entitled to come to the Court to have it vindicated. The Assembly had power to make regulations in regard to the machinery of election, the making up of the roll, &c., which when made acquired statutory authority. But if the General Assembly went outside of the statute this Court had power to review and alter their regulations and decisions. Here the Assembly had done so, and their action was incompetent. A sharp distinction was to be drawn between the powers of the congregation and of the presbytery—the proviso was put in, to the save rights of the Church, of excluding certain parties from the communion-roll, but not to affect their civil rights under the statute. In regard to the jus devolutum, it could not be held to have taken place, because the congregation had been deprived by them of their legal rights.

Authorities quoted — Tennent v. Crawford, January 12, 1878, 5 R. 433; Latta v. Dall, November 28, 1865, 4 Macph. 100; Dundonald, March 2, 1762, M. 9961; Presbytery of Inverness v. Fraser, June 10, 1823, 2 S. 341; Stair, i. 8, 35; Dunlop, 245; Stewart v. Presbytery of Paisley, and cases quoted there.

Argued, inter alia, for the respondents—The pursuers had stated no relevant case, for in all the matters which they complained of the decision of the Church Courts was by statute final. What was the “congregation” was handed over to be decided by the Church Courts, and they were exclusively entitled to deal with it. Even if their Lordships came to discuss the judgments of the Church Courts, there was in them no excess of the regulations. The jus devolutum must in the circumstances be held to have fallen to the presbytery, and there was no such interference with the right of the congregation as to prevent it.

Authorities— Campbell v. Presbytery of Kintyre, February 21, 1843, 5 D. 657: Dundonald, quoted supra. Stewart v. Presbytery of Paisley, ante, p. 105, and cases quoted there.

At advising—