Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.

Andrew Massie
v.
The Magistraties of Edinburgh

1697 January 29and July 20.

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January 29.—Philiphaugh reported Mr Andrew Massie against the Town of Edinburgh, for reducing the decreet whereby they deprived him from being one of the Philosophy-Regents in the College of Edinburgh. His first reason was against their competency and jurisdiction; for though they be patrons, empowered to place masters there, yet it was alleged they could not depose; for a patron presenting a minister has no power to judge him in order to deprivation; and though they produced a charter from King James in 1582, giving them facultatem removendi, yet that was before the erection of the college, when it was but studium generale, (that any learned man set up, and taught the sciences in his chamber, as many do at London, Amsterdam, &c. where there are no formed universities;) which differs much from a university, or Academia, where degrees are conferred; and, if masters in colleges malverse, or be negligent, the Magistrates may either pursue them before the Lords of Session, or the Commission for Visitation of Schools and Colleges; and that, if the Town had any such intrinsic power of judging and depriving, they would have certainly made use of it in a hundred years' space, and yet no instance can be given; for Mr Cunnyngham was not deprived by them, but demitted: And, if professors were so precarious as to be turned out ad beneplacitum of the Town Council, few scholars of pregnant spirits would accept of these offices; which would tend to the decay of learning, and prejudge the education of youth.

Answered,—The Town's jurisdiction and competency was clearly founded in their right of patronage and the foresaid charter; and a studium universale and a college was all one as to this power, and their gifts and admissions did not bear ad vitam; and their salaries were paid by the Town, and they depended as much upon them as the assessors do; and yet none will contend but the Town Council may depose or lay aside any of their assessors without a process, merely by rescinding the Act made in his favours.

The Lords waved to determine this point of the Town's competency at this time, and proceeded to the other reasons of reduction founded on the nullities of the decreet; such as,—The warrant for his citation was signed by no judge; neither had the procurator-fiscal any accuser or informer who concurred with him in the libel: It was given him on Saturday night to appear on Tuesday morning, so he had but one free day: The citation wants a date, and place of compearance, and the depositions are only signed at the end by the Provost as preses; and the witnesses were dependers on the Town, as the janitor and bursars, who afterwards got better bursaries: The decreet mentioned four interlocutors, viz. one repelling a dilator of a sist upon an advocation, in respect it was recalled; the second, repelling his declarator upon their incompetency; the third, restricting the libel to articles not formerly insisted on against him before the visitation, because, quoad these, he had the defence of res judicata; and the fourth, sustaining the libel relevant as so restricted, and admitting the same to probation: yet there was not a separate warrant for one of these interlocutors, but only ex post facto made up in the decreet, which was but the clerk's assertion.

Answered,—These formalities were not customary in processes before the town-court, where most things were done summarie et de plano; and, if these were found nullities, most of their decreets would fall, which would be a great insecurity to the people;—and custom must rule in all such cases.

Replied,—Whatever may be the practice in small processes of £20 or £30, there should be more exactness in taking away a man's livelihood and reputation.

The Lords, abstracting from all the other nullities, that they might not endanger decreets, pitched on the last, viz. the want of the interlocutors, and their not being signed by the Judge, contrary to the express command of the Act of Parliament 1686: they found it a nullity, and opened the decreet, and reponed Mr Massie against the same; and allowed him to be farther heard before the Ordinary anent his repossession, and damages in lying out of his place.

Vol. I. Page 761.

July 20.—In the action at Mr Andrew Massie's instance, (mentioned 29th January 1697j) against the Town of Edinburgh, and Mr John Row, for reposition to his place, as one of the Regents of the College;—the Lords, having ordained Mr William Scot to be cited incidenter in this process, and repelled his dilator, That he was not bound to answer summarily hoc ordine,—the debate fell in betwixt Row and Scot, which of the two should cede their place, to make room for Mr Massie's reëntry, Mr Row being admitted to Mr Cunningham's class, but to Massie's place; and Mr Scot is called to Mr Cunningham's vacancy, but to Massie's class.

The Lords found thir qualifications sufficient to prefer Row to Scot, that he was invited from St Andrews to Edinburgh by the Magistrates before Mr Massie's deprivation, and that Mr Scot's program was general, without naming any particular vacancy; and that this act being framed as succeeding to Cunningham, the same was rejected by the Town Council, and torn out of the registers; and which being proven, they ordained Mr Scot to cede.

A debate arose, de modo probandi, that it was incongruous to prove, per mem bra curiœ, (the Magistrates' oaths,) what contradicted their Acts of Council, which ought to make more faith than to be disproved in such a manner;—but the Lords found the qualifications foresaid so probable.

Vol. I. Page 787.