Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 I sat in the Outer-House this week.

The University of St Andrew's
v.
Professor Charles Gregory

Date: 11 November 1708

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I reported the bill of suspension given in by Mr Robert Ramsay, Provost of St Salvator's College in St Andrew's, and the other professors and regents there, against Mr Charles Gregory, professor of mathematics in that University. King Charles the II. in 1668 mortified L.2000 sterling, to be paid out of the Exchequer, for augmenting the masters of that University's salaries, and, particularly, for a mathematic professor: But, the Exchequer withdrawing payment, the Parliament, in 168I, granted half a month's cess to the said college, to be employed and distributed at the sight of the Privy Council. And, accordingly, Mr James Fenton being presented to be professor of mathematics in 1688, both his gift and the Act of the Privy Council modified L.50 sterling yearly for his salary, out of the first and readiest of the rents of the lands purchased with the L.3000 sterling, as the foresaid half month's cess. And the Queen having presented Mr Charles Gregory to that professorship in I707, he pursues Mr Ramsay and the other masters, as intromitters with the rents of the said lands, out of which his L.50 sterling is made payable, to refund the said sum, as his salary, for the year 1707, and the tenants for paying him in time coming; and obtains a decreet in foro against them. Whereof the professors gave in a bill of suspension, on thir reasons, That the Privy Council, in 1695, had divided the said half month's cess amongst the masters; whereby the power given them by the Act of Parliament in 168I was fully exerced, and they were functi, and had no more access to allocate any part of it to Mr Gregory. 2do, This decreet contained no dividend what should be every one's proportion in repaying Mr Gregory's claim; and, therefore, till that were constituted, his decreet was lame, imperfect, and null. 3tio, To give him L.50 sterling out of the first and readiest of the lands, was to give him a preference tanquam prœcipuum on the fund and subject; which would be very unreasonable: for that were to secure him in that salary in omnem eventum; and to cast dead, waste, and poor, on the other masters: So that if the rent, by any casualty or accident, fell short in bad years, they ran the hazard, and he reaped the whole profit.

The Lords, before they would open a decreet in foro, where all the reasons now alleged were either proponed and repelled, or else were competent and omitted, desired to see how Mr Fen ton's gift and Act of Council ran, if it was out of the first and readiest: and, for clearing thereof, George Dallas his printed style-book was produced; who, at p. 173, has recorded Mr James Fenton's gift, patent, and presentation; whereby he is appointed to be paid out of the first and readiest of that fund. And having read the decreet, which decerns them all promiscuously to pay him, without mentioning whether in solidum or pro rata; and finding the division made in 1695 was sede vacante, when there was no professor of the mathematics; therefore, the Lords sustained his gift, and refused the bill of suspension; the charger always, under his hand, restricting the charge quoad the masters of the University for the crop 1707, which they had intromitted with, and passing from them in time coming, and betaking him to the tenants of the lands out of which his payment is allocated by his gift and Act of Council.

Vol. II. Page 461.