CONTENTS. VOLUME FIRST. THE SPEECHES FROM THE BAR REVISED BY THE COUNSEL. 3. Condescendence and Answers, &c. and Pleas in Law, REPORT OF THE CASE THE EARL OF KINNOULL &c., against THE PRESBYTERY OF AUCHTERARDER, &c. The Judges of the First Division of the Court of Session, having pronounced an order, that this cause should be argued before the whole Court, the pleadings were opened on the 21st of November 1837, before the following Judges : Mr. WHIGHAM. I attend your Lordships on behalf of the pursuers, the Earl of Kinnoull, who is patron of the parish of Auchterarder, and the Rev. Robert Young, the presentee to that parish. The defenders in the action are, the Presbytery of Auchterarder, the Heritors of the Parish of Auchterarder, and the Trustees of the Minister's Widow's Fund. To protect themselves, the heritors have raised a process of multiplepoinding, which is now in dependence before the Lord Ordinary, in which they express their willingness to pay the stipend to whomsoever shall be found to have right to it. The trustees of the Ministers' Widows' Fund, have been called as defenders, in order that they and the Presbytery, and all others, may be ordained not to molest the pursuers in the enjoyment of the stipend and other emolu ments of the benefice. The main question, however, arises betwixt the pursuers and the presbytery of Auchterarder, and it is, Whether-by rejecting A Mr. Young, a licentiate of the Church of Scotland, holding an unexceptionable presentation to the church and parish of Auchterarder, without making trial of his qualifications, and exclusively in respect of the veto of a majority of male heads of families, members of the vacant congregation, being in full communion with the church-the presbytery have violated the patrimonial rights of the pursuers or either of them? There are some subordinate questions raised in the record, on which it may be necessary likewise to address some observations. I have in the outset to request the attention of your Lordships to the facts of the case. In May 1834, the General Assembly of the Church of Scotland passed, what is designated an "Overture and Interim Act on Calls," and which is expressed in the following terms: "Edinburgh, May 31, 1834.—The General Assembly declare, "That it is a fundamental law of this church, that no pastor shall "be intruded on any congregation contrary to the will of the peo"ple; and, in order that this principle may be carried into full ef"fect, the General Assembly, with the consent of a majority of the "presbyteries of this Church, do declare, enact, and ordain, that "it shall be an instruction to presbyteries, that if, at the moderat"ing in a call to a vacant pastoral charge, the major part of the "male heads of families, members of the vacant congregation, and "in full communion with the church, shall disapprove of the per"son in whose favour the call is proposed to be moderated in, such "disapproval shall be deemed sufficient ground for the presbytery "rejecting such person, and that he shall be rejected accordingly, "and due notice thereof forthwith given to all concerned; but that "if the major part of the said heads of families shall not disapprove "of such person to be their pastor, the presbytery shall proceed "with the settlement according to the rules of the church: And "farther declare, that no person shall be held to be entitled to "disapprove as aforesaid, who shall refuse, if required, solemnly "to declare, in presence of the presbytery, that he is actuated by no factious or malicious motive, but solely by a conscientious "regard to the spiritual interests of himself or the congregation." In order to carry the fundamental law into effect, the Assembly, at a future diet, passed certain regulations and forms of procedure, to which it is also necessary to draw the attention of the court. The first directs, "that when the Presbytery shall have "so far sustained a presentation to a parish, as to be prepared "to appoint a day for moderating in a call to the person present"ed," they shall appoint one of their number to preach in the vacant church, and intimate, that the presbytery will, on a certain day, proceed to moderate in a call to such person to be "minister of the said parish in the usual way.” 66 66 "2. That, on the day appointed for moderating in the call, "the presbytery shall, in the first instance, proceed in the same "manner in which they are in use at present to proceed. "3. That if no special objections, and no dissents, by a major "part of the male-heads of families, being members of the con"gregation, and in full communion with the church, according "to a list or roll to be made up and regulated in manner herein"after directed, shall be given in, the presbytery shall proceed to "the trials and settlement of the presentee, according to the "rules of the church. "4. That it shall be competent to any one or more of the heads "of families in the parish, in full communion with the church, by "themselves, or by an agent duly authorized, to state any special "objections to the settlement of the person presented, of what"ever nature such objections may be; and that, if the objections "appear to be deserving of deliberate consideration or investiga"tion, the presbytery shall delay the further proceedings in the "settlement till another meeting, to be then appointed, and give notice to all parties concerned, then to attend, that they may "be heard. "5. That, if the special objections so stated, affect the moral "character or the doctrine of the presentee, so that, if they were "established, he would be deprived of his license, or of his situ"ation in the church, the objectors shall proceed by libel, and "the presbytery shall take the steps usual in such cases. "6. That if the special objections relate to the insufficiency or "unfitness of the presentee for the particular charge to which he "has been appointed, the objectors shall not be required to be"come libellers, but shall simply deliver, in writing, their specific grounds for objecting to the settlement, and shall have full li"berty to substantiate the same; upon all which the presentee "shall have an opportunity to be fully heard, and shall have all "competent means of defence: That the presbytery shall then "consider these special objections, and, if it shall appear that "they are not sufficient, or not well founded, they shall proceed "to the settlement of the presentee, according to the rules of the "church but if the presbytery shall be satisfied that the objec"tor or objectors have established that the presentee is not fitted "usefully and sufficiently to discharge the pastoral duties in that "parish, then they shall find that he is not qualified, and shall "intimate the same to the patron, that he may forthwith present "another person-it being always in the power of the different "parties to appeal from the sentence pronounced by the presby"tery, if they shall see cause. "7. That if it shall happen that, at the meeting for moderat"ing in the call, dissents are tendered by any of the male heads |