land the Lord Advocate, shall certify in writing under his hand that such dispute ought to be decided by the judgment of a superior court of law or equity; and the said registrar shall have power to proceed ex parte on notice in writing to the said trustees or managers left or sent by the said registrar to the office of the said institution, or to the last known place of residence of such trustees, managers, members, or officers; and whatever award, order, or determination shall be made by the said registrar, shall be binding and conclusive on all parties, and shall be final to all intents and purposes, without any appeal; and all payments, assignments, sales, and transfers made in pursuance of any such order shall be good in law; and no submission to, or award or determination of the said registrar, shall be subject or liable to, or charged with any stamp duty whatever." I It is then provided that, on any such reference the said registrar shall be authorized to inspect and to require the production before him of any book or books belonging to the said institution relating to the matter in dispute, and to administer an oath to any witness appearing before him; and every person who, upon such oath, shall wilfully and corruptly give any false evidence before such registrar shall be deemed to be guilty of perjury."2

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The Secretary of State is to fix the fees payable on such references. They are to be met at first by the particular society, the registrar deciding as to the ultimate liability of parties. For the enforcement of these provisions it is enacted "that any one justice of the peace residing within the county within which such society shall be held, or within which the party resides against whom such award is made, upon complaint made upon oath by the party desiring to have the benefit of the award, or, in case of the managers or trustees of any such society, by an officer of such society appointed for that purpose, may summon the person against whom such award shall be made to appear at a time and place to be named in such summons; and upon his or her appearance, or in default thereof upon due proof upon oath of the service of such summons, any two justices residing within the county aforesaid, upon due proof of the execution of such award, may order payment of the fees and money thereby awarded to be paid to the party appearing to be entitled thereunto, with such costs as shall be awarded by the said justices, not exceeding the sum of ten shillings; and in case the person against

19 & 10 Vict. c. 27, § 15.-2 Ibid. § 16.

whom such order shall be made shall not pay the sum of money so ordered to the person, and at the time specified in the said order, such justices shall, by warrant under their hands and seals, cause the same to be levied by distress and sale of the goods of the person on whom such order shall have been made, or by other legal proceeding, together with such costs as shall be awarded by the said justices, not exceeding the sum of ten shillings, and also the costs and charges attending such distress and sale or other legal proceeding, returning the overplus (if any) to the owner: Provided always, that in Scotland it shall be competent to enforce payment of such fees, and of any sum of money so awarded to be paid, by proceeding before the sheriffs in the same manner as is by the law of Scotland competent for the recovery of any debt of the like amount.”

19 & 10 Vict. c. 27, § 19.

PART IV.

INSTITUTIONS CONNECTED WITH RELIGION AND THE CHURCH.

CHAPTER I.

CHURCH COURTS AND ECCLESIASTICAL DIVISIONS.

SECT. 1.-General Assembly.

Members. THE General Assembly consists of representatives from presbyteries, royal burghs, and universities; and from the churches in the East Indies connected with the Church of Scotland. Presbyteries consisting of not more than twelve ministerial charges send two ministers and one ruling elder; those having more than twelve and not more than eighteen, send three ministers and one ruling elder; those having more than eighteen and not more than twenty-four, send four ministers and two ruling elders; those having more than twenty-four and not more than thirty, send five ministers and two ruling elders; those having more than thirty and not more than thirty-six, send six ministers and three ruling elders; those having more than thirty-six and not more than forty-two, send seven ministers and three ruling elders; those having more than forty-two and not more than forty-eight, send eight ministers and four ruling elders; those having more than forty-eight and not more than fiftyfour, send nine ministers and four ruling elders; those having more than fifty-four, send ten ministers and five ruling elders. Where a principal or professor of divinity is entitled to a seat in a presbytery, his office is to be calculated as an additional ministerial charge. There are two members for Edinburgh, and one for each of sixty-five other royal burghs,

1 Ass. 1694, act 5, 1712, act 6, 1835, act 19, and 1839, act 7.

one from each of five universities, and two from the churches in India. By certain acts of assembly, ministers of chapels of ease and of quoad sacra parishes, might elect and be elected, but after a series of legal procedure, which showed that these acts were incompetently passed, they were rescinded in 1843.* The object which these acts had in view,-the increase of representation in the General Assembly, concurrent with that of ministerial charges, was subsequently provided for by the act 7 & 8 Vict. c. 44, for the division of parishes. Commissions to representatives from royal burghs must receive the approval of the ministers and kirk-session of a parish in the burgh, and of the presbytery of the bounds.2

Sessions. The Assembly meets annually in the month of May, and continues its sittings for ten days, always commencing them on Thursday.3 A commissioner is appointed by the crown to be present at the Assembly. He takes no share in the debates. It has been maintained that the Assembly may convene of its own accord, and proceed to business without the sanction of the civil magistrate.4 Care

Hill's Practice of the Judicatories of the Church, 90. Styles and Forms of Procedure in the Church Courts of Scotland, by the Church Law Society of Edinburgh, 257.- Ass. 1718, act 9, and 1788, act 9.3 Hill's Practice, p. 90.- See the Histories of Sessions 1638 and 1692.

* Ass. 1843, act 10. By the acts of Assembly here alluded to, supernumerary churches, whether they were denominated chapels of ease, or, as being built in terms of the additional churches acts (4 Geo. IV. c. 79; 5 Geo. IV. c. 90), were called parliamentary churches, were declared to be capable of having districts assigned to them as parishes quoad sacra, giving their ministers, in relation to church courts and other privileges of their spiritual character, the same position as parish ministers. This act remitted to presbyteries to assign districts to such churches and chapels within their respective bounds (Ass. 1833, act 6, Ass. 1834, act 9). An act was passed in 1839, extending this privilege to such congregations of the secession church as should conform to the rules there laid down. (Ass. 1839, act 8.) In a series of cases, it was found that the addition of such members through the authority of the General Assembly to the constituted church courts was illegal, that persons deriving their title as ministers of chapels of ease, parliamentary churches, &c. were not entitled to sit in church courts, and that any party interested could obtain a suspension and interdict against the proceedings of a church court on the ground of such a person acting as a member. (Livingstone, 20th July 1841. Wilson v. Presbytery of Stranraer, 27th May 1842. Smith v. Presbytery of Abertarff, 2d July 1842.) An interdict was also granted on the application of the patron and several heritors of the parish, out of which a district was proposed to be allocated as a quoad sacra parish. (Cunningham v. Presbytery of Irvine, 20th January 1843.) It was left doubtful whether the presence of such unauthorized persons as members vitiated the proceedings of church courts, so as to render them reducible if otherwise within the competency of such courts. (Campbell v. Presbytery of Kintyre, 21st February 1843.) But in 1846 it was decided that proceedings not questioned at the time remain valid. (Livingstone v. Presbytery of Hamilton, 26th June 1846.)

is now taken to prevent collision. When the commissioner is to be absent, it has been usual for the Assembly to resolve itself into a committee, and have its proceedings reported and approved of on his return.1 At the termination of the sittings, the moderator appoints another assembly to be held on a day certain in the following year, "in the name of the Lord Jesus Christ, the king and head of the church," and the commissioner appoints the same day, in the name of the sovereign.2

Procedure.-The moderator of the previous year opens the proceedings with prayer. A new moderator (who must be a minister) is then chosen, and various committees are appointed for transacting business.3 On private questions, the Assembly, as a court of church judicature, hear counsel.4 Measures of church legislation are introduced in the form of overtures, which may originate with a member, a presbytery, or a synod, or with the Assembly itself, which may require a committee to meet and frame an overture.5 An overture for any alteration in the rules and constitution of the church, if not dismissed, is, in virtue of " the Barrier act," transmitted to the several presbyteries for their consideration, with injunctions to forward their opinions to the next General Assembly, by which it may be passed into a standing law, only if it have obtained the concurrence of the majority of the presbyteries. Where it is deemed expedient, however, that the new law should be immediately put in force, the Assembly are in the practice of converting the overture into an Interim act," binding until the ensuing meeting of the Assembly. Where a measure, favoured by the Assembly, does not receive the assent of presbyteries after being first passed, it is not unusual virtually to continue the measure as an interim act" from year to year. The General Assembly exercises supreme legislative and executive authority over all other church judicatories, which are subject to its directions, so far as they do not infringe on the civil law.8

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Commission. The Assembly refers to a Commission the business it is not able to complete during the ten days of its session. The commission consists of all the members of Assembly, with the addition of one minister named by the moderator. Thirty-one members (of whom twenty-one

1 Hill's Practice, p. 91.-2 Ibid. 101. See the concluding act of each session. Hill, 93. Styles of Writs, &c. 258. Hill's Practice, 98.5 Ibid. Styles of Writs, 241.- Ass. 1697, act 9.-7_Hill's Practice, 99. 8 Hill's Theological Institute, 243.