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Scottish Court of Session Decisions >>
Home v Galbraith. [1685] Mor 15900 (00 February 1685)
URL: http://www.bailii.org/scot/cases/ScotCS/1685/Mor3615900-036.html Cite as:
[1685] Mor 15900
A Minister having been turned out of his cure in January for not taking the test, was found to have no right to Whitsundays term's stipend thereafter.
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Mr. William Home, Minister of Jedburgh, having removed from the church upon the account of not taking the test, but having served the cure to Whitsunday 1682, at which time Mr. William Galbraith entered to the church, and Mr. William Home having assigned the half year's stipend from Martinmas 1681 to Whitsunday 1682, to Archibald Home, his brother; he pursues Mr. William Galbraith, he having received the half year's stipend from the heritors, for payment of the same. Alleged for the defender, That Mr. William Home, the pursuer's cedent, had no right to that half year's stipend, seeing he did not take the test before the 1st of January, 1682, as is appointed by the act of Parliament. Answered, That albeit Ministers, as other persons in any other public office, were appointed to take the test before the 1st of January, 1682; yet that did not prejudge them that did not take the test of the current half year's stipends; for those ministers that went out upon the account of the test, could be in no worse case than if they had died before the 1st of January, 1682, in which case their representatives would have had right to the half year's stipend upon the account of the ann; but more especially the pursuer ought to have right to the same in this case, because his brother did serve the cure till Whitsunday 1682; as also, the defender was not placed minister at Jedburgh till after Lainmas 1682, and he being formerly minister at Morebattle, he did get that half year's stipend from the heritors of the parish of Morebattle, and he ought not to have both the stipend that half year. Replied, That Mr. William Home, the pursuer's cedent, having refused to comply with the act of Parliament, he was in a worse case than if he had been naturally dead, and so ought not to have right to that half year's stipend as in the case of an ann; and he could have no benefit by his serving the cure from Whitsunday 1682, because he did it contrary to the act of Parliament enjoining the test. The Lords found, that the pursuer being put out of his charge for not taking the test in January 1682; he has no right to the Whitsunday term's stipend thereafter, and therefore assoilzied the defender.
