Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by Alexander Tait, Clerk Of Session, One Of The Reporters For The Faculty.
Subject_2 PATRONAGE.

The Presbytery of Strathbogie
v.
Sir William Forbes

Date: 2 August 1776

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In determining a case between the Presbytery of Strathbogie and Sir William Forbes of Craigievar, patron of the parish of Grange; the Lords were of opinion, that a general power of factory was not sufficient to entitle a factor to present in absence of his constituent,—and, that still less was such power competent to a negotiorum gestor, or to a factor, continuing to act as factor, after the factory was expired; and therefore, where, as in this case, Lady Forbes, in virtue of a general factory from her son, who was abroad on his travels, but which factory was truly expired, though she continued to act under it, did present to the church of Grange within the six months,—the Lords found that the jus devolutum took place notwithstanding; and that any ratihabition by Sir William, after the six months, did not draw back, and had no effect. Some of the Lords seemed to consider the jus devolutum as a forfeiture, and were desirous of laying hold of any pretext to evade it; but the majority were of a different opinion, and thought, that, if a latitude of this kind was allowed, there would be an end of the jus devolutum altogether.

Lord Covington gave his opinion, that the six months were strictly to be adhered to, and that no time was to be allowed for giving the patron notice of the vacancy ; at the same time he was, in this case, of opinion, that the jus devolutum had not taken place: he considered it as a forfeiture, and that even the act and deed of a negotiorum gestor was sufficient to prevent the lapse of it. Lord Gardenstone and Lord Auchinleck were of the same opinion. Lord President inclined to think, that the general factory was sufficient; but his difficulty lay in this, that the factory was expired.

In a vice patronage, each patron is patron of the whole parish, and may present to every vice, provided that the other does not interfere and hinder him. It is jus tertii to the Presbytery and every other person. It is also to be observed, that, although the patrons present per vices, each patron has the disposal of the vacant teind of the parish of which he was patron before the annexation. This is Lord Braxfield's opinion. It may also be maintained, that, as each patron has his turn per vices, if the patron whose turn it is lie by and do not present, but allows the other to present, and his presentee to be settled, it will not from this follow, that he has right to the next vice. Sibi imputet that he did not exercise his vice when it came : he must wait till it come about again.