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Scottish Court of Session Decisions >>
Mr James Philp, and the Moderator of the Presbytery of Ellon, v The Heritors of the Parish of Cruden. [1724] Mor 13122 (7 February 1724)
URL: http://www.bailii.org/scot/cases/ScotCS/1724/Mor3113122-028.html Cite as:
[1724] Mor 13122
Mr James Philp, and the Moderator of the Presbytery of Ellon, v. The Heritors of the Parish of Cruden
Date: 7 February 1724 Case No. No 28.
The minister and heritors of a parish have the right to appoint a schoolmaster, whom failing the presbytery.
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The Presbytery of Ellon having deposed Mr Keith schoolmaster at Cruden, they duly intimated their sentence; and after elapsing of year and day, and public intimations made to the Heritors and others concerned, to nominate and present a person qualified for that charge, they proceeded to the settlement of Mr Philp; who having insisted for his salaries, it was objected to him, That his title was void, he being admitted to that office by the Presbytery without the advice of the Heritors and Minister of the parish, which, by the act of Parliament 1696, was necessary in the appointing of a schoolmaster.
It was answered for the Presbytery, That the act 1696, ordaining a schoolmaster to be appointed in every parish, could not, in the event of the Heritors refusing or neglecting to present one, be more habily executed than by the Presbytery, since former acts of Parliament, particularly act 22d sess. 4. Parl. William and Mary,(1693) had given the power of trying, inspecting and censuring of schoolmasters; and wherever a presentation does take place, the nature of the thing requires, that those to whom the presentation is to be made should have the power of filling up the vacancy, if the patron refuse or neglect to do his duty. It was further pleaded, That if this power was denied the Presbytery, there was reason to fear that few schoolmasters would be settled in the northern parts of the country.
Replied for the Heritors, That as an act of Parliament was necessary to establish a jus devolutum in the Presbytery in the case of settling a minister, so had there been any such thing intended with respect to a schoolmaster, no doubt the legislature would have taken an opportunity to have expressed it: And as to the inconvenience which might arise from denying such a power to the Presbytery, it was not so great as to allow them to transfer to themselves the right which was competent to the Heritors; for, by application to the judicatories which have the execution of the laws in their hands, they would get the Heritors decerned to provide a schoolmaster in a competent time; and, if they failed, letters of horning would be directed against them for that effect.
“The Lords found, that by the act of Parliament 1696, ordaining a schoolmaster to be settled in every parish with advice of the heritors and minister thereof, the nomination and presentation of the schoolmaster belongs to the Heritors and minister of the parish; but found, that if the Heritors and minister refuse to present, after due certioration by intimation from the pulpit for that effect, that then the Presbytery may proceed and settle the schoolmaster.”
Reporter, Lord Pancaitland.Act. Jo. Dundas.Alt. Ja. Graham, sen.Clerk, Hall.
Fol. Dic. v. 4. p. 195. Edgar, p. 25.
