clared, and the obligations incumbent on the presbytery enforced, even though the incumbent should neither obtain manse, glebe, stipend, or any other mere pecuniary advantage. And I must be permitted to say, that it is a strange doctrine to be maintained by a presbytery of the Church of Scotland, that a presentee has no rights vested in him by a deed of presentation, excepting a pecuniary interest÷or no interest to insist in a declarator of his rights under a deed of presentation. Why, his connexion with the church and parish depends entirely on the rights conferred by that deed. He can neither acquire the ecclesiastical status of minister, nor the fruits of the benefice without it. It matters not whether the presentation flow from the sovereign or a subject, it is by means of it that a presentee acquires the ecclesiastical status of an ordained minister of the Church, as well as certain patrimonial rights. I am entitled in this part of the argument to assume, that the rejection of Mr. Young was ultra vires of the presbytery, and consequently illegal. And it is immaterial whether the particular ground of rejection was the veto of parishioners, or a refu sal by the presbytery to act upon or obey the presentation at all. It is therefore of little consequence to consider, hoc statu at least, whether the pursuers, or either of them, can ever succeed in obtaining decreet for the stipend. That question necessarily depends on the adjudication of the declaratory conclusion. For if the pursuers are wrong on the merits of that conclusion, no question can then arise either betwixt them and the trustees of the Widow's Fund, or the heritors of the Parish liable in payment of stipend. The interest of both pursuers will then be excluded. On the other hand, if the pursuers are right in the declaratory conclusion, in that case they will doubtless have right to the stipend and other emoluments of the benefice; at least the competition will only then properly arise betwixt them and the trustees of the Ministers' Widows' Fund. The interest of the presbytery will then be wholly superseded. It is jus tertii to them to maintain the plea of the Widows' Fund. The right of the trustees is said to arise from the death or resignation of the minister, and consequent vacancy of the parish. But if the pursuers are successful, under the first conclusion against the presbytery, they hope to satisfy your Lordships that this is a case to which the statute conferring a right to "vacant stipends" on the Ministers' Widows' Fund does not apply; inasmuch as there is no proper vacancy in the sense and meaning of the statute, and that vacant stipend and a vacant parish, from whatever cause the vacancy in the parish may arise, are by no means one and the same thing. Neither is it necessary or proper here to inquire, whether, if the patron did establish a right to the funds of the benefice, he be entitled to transfer them to the presentee. These are questions pressed by the de

fenders into the discussion, I humbly think, very unnecessarily, and by a party who has no direct interest in their decision one way or another. Besides objecting to the competency and to the want of interest on the part of the pursuers to insist in the action, the defenders maintain, that the pursuers are barred personali exceptione, from insisting in the action by acquiescence in the proceedings of the presbytery, in so far as they acted under the interim act and the regulations of the Assembly.

In the first place, no plea to this effect is stated in the record. In the second place, though it had been stated, it is groundless. The Earl of Kinnoull was no party to any proceedings in the church courts after the presentation in favour of Mr. Young was sustained by the presbytery. In that act, and in the presbytery's declaration, that they were to "proceed in the usual way to mo"derate a call to Mr. Young," the procurator who attended for the Earl of Kinnoull acquiesced. His lordship had no interest to do otherwise. Neither had the presentee any interest to object to the presbytery's acting upon the regulations of the Assembly so far, because there is blended in those regulations what no presentee or patron can object to. The act of rejection of the presentee, on the admitted ground of the exercise of a veto by some of the male heads of families in the parish, is the illegal act by which the pursuers allege their rights to have been infringed. But in that act it is not pretended that there has been any acquiescence. Besides, so far from acquiescing in their whole procedure, a protest was taken at almost every step by the agent for the presentee. In particular, when upon a division it was carried at the meeting of 2d December 1834, that the presbytery do proceed in terms of the regulations, a protest against the sentence was entered. And again, when the presbytery allowed the male heads of families to exercise the veto, and again, when they found that a majority of the persons on the roll had dissented, another protest was taken. There was therefore not only no acquiescence in the acts of the presbytery which led to the rejection of the presentee, or to the sentence of rejection itself, but the very reverse. But though, from beginning to end of the proceedings in the church courts there had been no protest, that, I submit, would not have prevented the pursuer from maintaining the present action. They might have deprived themselves of the right to obtain a review of the proceedings of the presbytery in the higher church courts; but their mere silence could not have any other or greater effect in depriving them of the right to vindicate their patrimonial rights in the civil court.

The last plea maintained by the presbytery is that, even if they did exceed their powers, and act illegally in the matter, the pursuers are barred from pursuing this action, in consequence of not

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having taken and followed out an appeal from the sentence of the presbytery to the synod and General Assembly. And they refer to the case of Cook v. Milne, 17th May 1823, (S. 2, p. 317,) which was a case under the post-horse duty statute, which prescribes an appeal from the ordinary sessions of the peace to the quarter sessions for the county. Instead of taking that appeal, Cook presented a bill of suspension to your Lordships, which was objected to as incompetent, and the objection sustained. The presbytery of Auchterarder likewise refer to the case of Alexander r. Seymour, 2d December 1828, (S. 3, p. 117,) which was a question under the statute 10th Geo. II. in regard to "common players of interludes," and for the recovery of penalties for performing, without a licence, any "tragedy, comedy, opera, play, "farce, or other entertainment of the stage." The statute provides, that the penalties may be recovered before two justices of the peace, with a power of appeal to the quarter sessions. As in the case of Cook, Alexander did not appeal from the sentence of the justices to the quarter sessions, but brought the sentence of the justices directly under review of the Court of Session by advocation. The court held that he behoved first of all to take his appeal to the quarter sessions. It is, I submit, a sufficient answer both to the plea of the presbytery and to their authorities, to observe, that these were questions of purely civil jurisdiction. There was no competing jurisdiction as in the present case, where the whole attempt is to exclude the civil action on the ground of want of jurisdiction, and that, too, on the supposition, if not admission, that there was an excess of power on the part of the church court. The plea, in short, just raises the question of competency in another form. I have already had occasion to refer your Lordships, on another branch of the argument, to that class of decisions, where, though the review of the court is by statute expressly excluded, you can, and do interfere, when presbyteries act irregularly, or exceed their powers.

With regard to the supposed necessity for following out an appeal to the General Assembly because of the concluding sentence of the act 1567, c. 7, and the personal exception taken against the pursuers for not having so appealed. I have only to say that in the cases of Auchtermuchty, Culross, Dunse, and Lanark, the exception was taken, and in the first of these cases very strongly urged. The civil action was there instituted immediately after the sentence of the presbytery, though a protest and appeal had been taken to the synod, but not followed forth. In the case of Culross, the civil action was instituted after the sentence of the presbytery had been affirmed by the synod. In the case of Dunse, it was instituted pending an appeal to the synod; and in the case of Lanark, after Dr. Dick had actually been ordained and admit

ted. It is impossible, therefore, in the face of these authorities, to contend with effect, that the pursuers are barred, by not having followed the course of appeal through all the church courts, from making the sentence of the presbytery rejecting Mr. Young the subject of adjudication in the civil court.

What the act 1567, c. 7, was held to have conferred on the church, was the right of examination and trial of the qualifications of ministers. And so long as the church did not act arbitrarily, but kept within the proper limits of that duty, and applied only the known legal tests, her sentences are admitted to be final, as the sentences of presbyteries are under the schoolmasters' act. But if the presbytery refuse to try the qualifications of a minister or schoolmaster, or reject him upon grounds foreign to the known and ordinary personal tests of qualifications, and act arbitrarily, or delegate their duty to third parties, it is vain to say that their sentences are conclusive, or that the civil court cannot give redress. Such a doctrine would be in effect to give to the church courts the power of rejecting all candidates for the ministry who seek ordination and to be inducted into a benefice by virtue of a deed of presentation.

I have now only to apologize to your Lordships, for having occupied so much of your time, with what I am afraid is a very imperfect statement of this important case.

Tuesday, 28th November 1837.

Mr. ROBERT BELL,-My Lords, I have the honour to attend the court on the part of the presbytery of Auchterarder, who are cited as defenders in this case, along with certain other parties for whom I do not appear. The case itself is one of much importance, involving, as it does in our view of it, the risk of a collision between two equally supreme and independent jurisdictions; a risk which your Lordships must always be anxious to avoid. The case is brought into court, by a summons of a very unusual and extraordinary nature. It commences with an abstract and simple declarator, without petitory conclusions of any kind, against one party, in order to found petitory conclusions against two other parties, in circumstances where the decision first sought for can afford no res judicata against the other parties to the action. Such is the general nature of the summons; but it will be more convenient to delay the particular examination of it till after the nature of the case has been explained.

The first observation which I have to make is, that the pursuers not only agreed in the Outer-House, but they insisted on taking the question with the presbytery first. They also agreed to let us argue the case as upon the supposition, that the trustees of the Widows' Fund would after all prevail in carrying off the fund from both the pursuers; and it is on this footing, which, after all, I would have been entitled to at any rate, that I intend to argue the case.

I would remark in the next place, with much deference, that both here and in the Outer-House, the points which are argued by my learned friends with most triumphant success, are just those which are either not maintained, or at least not denied, on our part. I will therefore state explicitly, before I proceed any further, what the points are which we admit, or which we do not maintain.

1st, Then, I do not maintain that the Church Courts have any right to interfere with civil jurisdiction, or rather with civil questions, in any shape; and accordingly, the presbytery sustained the presentation in this case.

2d, I admit, that if presbyteries violate any civil rights, there may be civil consequences arising out of such usurpation; but I say that they are not those which are concluded for in the

sent summons.

pre

3d, The question is not raised in this case, whether induction per se, and independent of the patron's nomination, can in any case confer any civil rights upon the person inducted. But I do maintain, on the other hand, that it has never been held under the presbyterian constitution of the Church of Scotland, that the