BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
James Dunlop, and Others, v Thomas Muir, and Others. [1791] Mor 7470 (9 December 1791)
URL: http://www.bailii.org/scot/cases/ScotCS/1791/Mor1807470-189.html Cite as:
[1791] Mor 7470
Jurisdiction of the Court of Session, in reviewing the procedure of Ecclesiastical Courts.
James Dunlop, and Others, v. Thomas Muir, and Others
Date: 9 December 1791 Case No. No 189.
Questions respecting the right of electors of ministers under act 1690, competent in the civil courts.
Click here to view a pdf copy of this documet : PDF Copy
The parish of Calder, in the presbytery of Glasgow, is one of those that obtained, under the authority of the statute of 1690, cap. 23. the right of nominating their ministers; which, in the first instance, is vested in the heritors and elders.
A vacancy having happened, those of Calder split into two parties, each contending that it composed a legal majority of electors.
An action of declarator having been instituted by one of the parties against the other, for ascertaining their legal qualifications; it was
Objected, That such action was incompetent before a civil court. For the statute ordains, that upon the heritors and elders naming and proposing to the congregation a person as their minister, “to be approven or disapproven by them; if they disapprove, the disapprovers shall give in their reasons, to the effect the affair may be cognosced upon by the presbytery of the bounds, at whose judgment, and by whose determination, the calling and entry of a particular minister is to be ordered and concluded. And thus it appears, that every point in dispute among the collective body of heritors and elders, is subjected to the exclusive determination of the church-courts.
Answered, The objection has arisen from inattention to the distinction between matters of a spiritual nature, which belong to the ecclesiastical judicatories, and those which, being patrimonial, fall under the jurisdiction of civil courts. Among these last, rights of patronage have always been reckoned, as comprehending the disposal of the benefice or stipend. The church-courts indeed may have the exclusive cognizance of the pastoral or spiritual relation, but the temporal benefice is placed under the controul of the civil power; in-somuch, that in the case of the parish of Lanark,* a person, though invested with the ministerial office, was, by this Court, denied the enjoyment of the stipend.
Nor is the case of a single patron different from that in which, by the statute in question, the power of nomination is conferred on a plurality; for the circumstance of a right being vested in an individual, or in a collective body, does not vary its nature, 16th June 1772, Logan contra Snodgrass, No 95. p. 7374.
The Lord Ordinary reported the cause upon informations.
The Court found the action competent.
Reporter, Lord Justice Clerk.Act. Jo. Millar, junior.Alt. Muir.Clerk, Home.
Fol. Dic. v. 3. p. 347. Fac. Col. No 194. p. 404.
