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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Rev. Mr. Thomas Tait v. Mr. George Skene Keith, Minister, and Others [1778] UKHL 2_Paton_447 (30 March 1778)
URL: http://www.bailii.org/uk/cases/UKHL/1778/2_Paton_447.html
Cite as: [1778] UKHL 2_Paton_447
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SCOTTISH_HoL_JURY_COURT
Page: 447↓
(1778) 2 Paton 447
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND.
[M. 9938.]
No. 109.
v.
House of Lords,
Subject_Patron — Competing Presentations — Mandant's Powers — Implied Recal.—
Where a patron, residing in a foreign country, had appointed commissioners, with powers to present to vacant churches, the latter presented a party a day before the patron himself presented another party: Held, the presentation by the commissioners, in virtue of the powers delegated to them, was good, and to be preferred to the patron's own presentation, and that the right of patronage may be exercised by delegates so appointed.
George Keith, Earl Marischall, was patron of the parish church of Keith-hall, Aberdeenshire, and having become
Page: 448↓
In consequence of a power and commission granted by the Earl to Alexander Keith the elder, and Alexander Keith the younger, of Ravelston, the respondent received a presentation to the same church and parish from them, acting for the Earl, and as duly empowered in that respect, dated 9th May 1776. Both presentations were served on the same day on the presbytery. And the question came to be, which of the two was entitled to be preferred and sustained?
Jan. 22, 1778.
The Court pronounced this interlocutor:—
“Find that Messrs. Keiths, elder and younger of Ravelston, having full and special powers, by commission from George Keith, late Earl Marischall, to grant presentations to parish churches, whereof he is patron, in the same way and manner as he could do himself; and having granted a presentation, as commissioners, to Mr. George Skene Keith, preacher of the Gospel, to be minister of the united parishes of Keith hall and Kinkell, which was prior to the presentation to the same parish, granted by the said George Keith, late Earl Marischall himself, in favour of Mr. Thomas Tait, second minister of Old Aberdeen, therefore, in a competition betwixt these two presentations, find the presentation to Mr. Skene Keith preferable, and decern.”
Against this interlocutor the present appeal was brought to the House of Lords.
Pleaded for the Appellant.—The right of presentation cannot in law be exercised by commissioners or attornies, but only by the patron vested with the right to present; the presentation, therefore, on the part of the Earl Marischall's attornies was inept. And even if valid at all, it cannot stand in competition with a presentation under the Earl Marischall's own hand. The very fact that he presented a different party, necessarily implied a recall of that commission, and a presentation by the patron himself granted only a day after the one by the attornies, ought to be preferred.
Pleaded for the Respondent.—It is the established law of Scotland that a patron may exercise his right of presentation by means of commissioners, empowered in the special manner Messrs. Keiths were in the present case. The commission, therefore, not having been recalled, and the commissioners having acted under special powers, and in absence of the patron, the presentation by them was, to all intents
Page: 449↓
After hearing counsel, it was
Ordered and adjudged that the interlocutor be affirmed.
Counsel: For Appellant,
E. Thurlow,
Henry Dundas.
For Respondents,
Al. Wedderburn,
Ar. Macdonald,
Dav. Rae.