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Scottish Court of Session Decisions >>
M'Lellan v The Bishop of Dumblane. [1680] Mor 7412 (19 December 1680)
URL: http://www.bailii.org/scot/cases/ScotCS/1680/Mor1807412-126.html Cite as:
[1680] Mor 7412
Power of advocating Causes. - Power of advocating from one Court to another, where the Court of Session itself has no jurisdiction in the Cause.
M'Lellan v. The Bishop of Dumblane
Date: 19 December 1680 Case No. No 126.
The Court advocated a cause for church censure, nom on before the Dean of the Chapel Royal, and remitted it to the bishop and clergy.
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The Bishop of Dumblane, as Dean of the Chapel Royal, and Minister of the church of Holyroodhouse, having convened before him Thomas M'Lellan, beadle of the church, upon information of several scandalous miscarriages, he obtained advocation passed by the ordinary upon the bills, whereupon the Bishop supplicated the Lords to recal the advocation, as being unwarrantably passed, whereby church censure was hindered, and would be of evil example and discouragement to the church, if church censures for scandal were advocated to the Lords, not being the subject of their jurisdiction. It was answered, That the Lords have a general jurisdiction directive of all the judicators ordinary, civil or ecclesiastic, and they may, and do ordinarily advocate criminal causes and processes from the Admiral, and confirmations of testaments, though the Lords cannot judge these things in the first instance, as they are the King's Council in matter of law in private rights; so that if there be incompetency, or inordinate processes, they may advocate from these courts, and may remit it to others nominated by the Lords, in place of these judges, if they be proved to have malversed; and if the bishop of one diocese, or minister of one parish, should summon persons without that diocese or parish to be censured for scandal, there could be no other remedy but to advocate to the Lords, and to remit to the competent judge. But there is much more in this case; this beadle having a gift from the King to be beadle, and not chosen by any church-man upon the King's presentation, in which case churchmen might depose those whom they had instituted; but the design of this censure is to depose the beadle, and to take away the King's gift.
The Lords remitted the cause to the Bishop and Clergy, as to the church censure, without prejudice to the King's beadle of his gift, as accords.
