Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 PATRONAGE.
Subject_3 Jus Devolutum.

Presbytery of Paisley
v.
David Erskine

Date: 10 August 1770

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[Dictionary, 9966.]

Justice-Clerk. I am for adhering, because this very matter was formerly agitated in the ecclesiastical court; and the presbytery itself, though now insisting on a jus devolutum, admitted the presentation to be regular. This admission cannot be retracted by means of the appeal to the synod.

Hailes. Most of the new objections made by the presbytery were made and repelled, in the case, February 1749, Hay of Lawfield against the Presbytery of Dunse. The statute, 1719, is abundantly strict; yet it contains no limitation or prescription. Now, it is certain that probationers do not the oaths upon obtaining a license to preach. It follows that his Majesty's advocate may imprison the whole presbytery of Paisley, and indeed the whole clergy of Scotland, for six months, upon the presbytery's own argument; and nothing can relieve them but an indemnity: so little do the pursuers advert to the ground on which they stand.

Pitfour. The objection is founded on a misapprehension of the statute 1719,—”or before admitted ministers.” This is a plain alternative, “terms above provided:” that is, in the terms of the alternative in the former clause. [This is a benevolent interpretation; but the words of the statute will not carry it through.]

Coalston. The whole strain of the presbytery's argument is, to lay hold of detached words, neglecting the spirit of the law. Lord Blantyre is not a nonjuror, in terms of law. He is abroad, and cannot have an opportunity of qualifying. The law has not said that a patron, who does not qualify, shall not have the power of disponing. As to the other points, of the opinion already given.

Auchinleck. My doubt is as to the first point. A patron forfeits his right if he refuses or neglects to qualify. Can he go beyond seas, and present under this pretext, that he has no opportunity of qualifying beyond seas?

President. The meaning of the law is, that the patron must take the oaths. It was rash on the part of Lord Blantyre to give in a presentation when there was a disposition granted to Mr Erskine. However, it was withdrawn within the six months, and a regular presentation offered in its room. This will do.

Kaimes. Lord Blantyre is out of the kingdom. Had no access to take the oaths. We cannot forfeit him.

On the 10th August 1770, “The Lords adhered and assoilyied.”

Act. A. Crosbie. Alt. D. Rae. Reporter, Monboddo.

N.B. In this case Mr Crosbie objected that the presentation was not offered on the Sunday, though he had formerly argued on that supposition. But upon declining a proof, [from the dread of being found liable in past expenses, and perhaps future,] the Lords proceeded to advise the cause.