November;" and the Presbytery deeming it expedient that he should "preach oftener than once before the moderation of his call, appoint "Mr Clark at sametime to intimate, that Mr Young will preach there "on the 23d of the same month. The Presbytery further appointed "Mr Clark to intimate, that the Presbytery of Auchterarder will "meet in the church of Auchterarder, on the first Tuesday of Decem"ber next, being the 2d day of that month, to moderate in a call, in "the usual way, to Mr Young, to be minister of that parish, the mo"derator to preach and preside. In all which sentence of the Presbytery Mr Moncrieff acquiesced, and took instruments in the clerk's "hands. From which sentence of the Presbytery, in so far as it at "all sustained the presentation, Messrs Mackenzie and Walker dis"sented, on the ground that, by so doing, the Presbytery did seem to homologate and approve of patronage." That another meeting of Presbytery was held at Auchterarder, on the 2d day of December 1834, for the purpose of moderating in a call to the pursuer, the said Robert Young, to be minister of the church and parish of Auchterarder; and the minutes of Presbytery bear that, under protest on the part of the pursuer, the said Robert Young," the Presbytery then "proceeded to afford an opportunity to the male heads of families, "whose names stand upon the roll, to give in dissents on the call and "settlement of Mr Robert Young, as minister of the parish;" and the presbytery afterwards found, "that dissents have been lodged by an apparent majority of the persons on the roll inspected by the "Presbytery." That at another meeting of the Presbytery of Auchterarder, which was held at Auchterarder on the 7th of July 1835, the said Presbytery did " reject the pursuer, Mr Robert Young, the "presentee to Auchterarder, so far as regards the particular presenta"tion now on their table, and the occasion of this vacancy in the pa"rish of Auchterarder; and do forthwith direct their clerk to give "notice of this their determination to the patron, the presentee, and "the elders of Auchterarder:" That the foresaid judgments or deliverances of the said Presbytery, of date 2d December 1834, and 7th July 1835, were ultra vires illegal and unwarrantable, in so far as that though, by the laws and statutes before libelled, the Presbytery were bound and astricted to make trial of the qualifications of the pursuer, Robert Young, as presentee to the church and parish of Auchterarder, and were not entitled to delegate to, or devolve that duty on third parties, or to denude and abandon their right and duty as a church court, to judge of and decide upon the qualifications and fitness of the presentee for the pastoral office and charge; and after examination by said Presbytery, if the pursuer, the said Robert Young, as presentee foresaid, was found to be duly qualified, the said Presbytery were bound and astricted as aforesaid, to have admitted and inducted him into the office of minister of the church and parish of Auchterarder: Nevertheless, though the pursuer, the said Robert Young, is duly qualified as a licentiate of the Church of Scotland, and presentee foresaid, as well as in all other respects, to be received and admitted minister of the church and parish of Auchterarder, and though no objections have been stated against his qualifications, the Presbytery not only refused, and con

tinued to refuse, to take the pursuer upon trials, and to pronounce judgment on his qualifications as presentee, or to admit and receive him as minister of the church and parish of Auchterarder, but have, by their sentence, rejected him as presentee to the said church and parish, without trial, without taking cognizance of his qualifications as presentee, and expressly on the ground that they cannot, and ought not to do so, in respect of a veto of the parishioners: In all which respects the said presbytery, and the individual members thereof, have exceeded the powers conferred on them by law, and acted illegally, in violation of their duty, and of the laws and statutes libelled, and that to the serious prejudice of the patrimonial rights of the pursuers: And although the pursuers, as patron and presentee foresaid, have often desired and required the said presbytery, and Mr John Ferguson, minister of Monivaird; Mr James Thomson, minister of Muckhart; Mr John Brown, minister of Glendovan; Mr John Clark, minister of Blackford; Mr William Stodart, minister of Maderty; Mr Peter Brydie, minister of Fossaway; Mr William Mackenzie, minister of Comrie; Mr William Laing, minister of Crieff; Mr Alexander Laird, minister of Ardoch; Mr Samuel Cameron, minister of Monzie; Mr Thomas Young, minister of Gask; Mr James Walker, minister of Muthill; Mr Alexander Maxtone, minister of Fowlis; and Dr James Russell, minister of Dunning, the present individual members thereof, to discharge their duty in terms of law and the statutes libelled, by proceeding with the trials, admission, and final settlement of the pursuer, the said Robert Young, as minister of the Church and parish of Auchterarder: Yet they illegally, contumaciously, and in violation of their duty, and to the serious injury and prejudice of the patrimonial rights of the pursuers, refused, and continue to refuse, so to do: Therefore, it ought and should be found and declared, by decree of the Lords of our Council and Session, that the pursuer, the said Robert Young, has been legally, validly, and effectually presented to the Church and parish of Auchterarder: That the Presbytery of Auchterarder, and the individual members thereof, as the only legal and competent Court to that effect, by law constituted, were bound and astricted to make trial of the qualifications of the pursuer, and are still bound so to do; and if, in their judgment, after due trial and examination, the pursuer is found qualified, the said Presbytery are bound and astricted to receive and admit the pursuer, as minister of the church and parish of Auchterarder, according to law: That the rejection of the pursuer by the said Presbytery, as presentee foresaid, without making trial of his qualifications in competent and legal form, and without any objections having been stated to his qualifications, or against his admission as minister of the church and parish of Auchterarder, and expressly on the ground that the said Presbytery cannot, and ought not to do so, in respect of a veto of the parishioners, was illegal and injurious to the patrimonial rights of the pursuer, and contrary to the provisions of the statutes and laws libelled: And it being so found, or in the event of the said Presbytery still continuing to refuse to discharge their duty, by proceeding in the trials of the pursuer as presentee, and in his induction as minister of the church and parish of Auchterarder, the said Robert

Young, pursuer, ought and should be found and declared, to have the just and legal right to the constant, localled, and modified stipend, with the manse and glebe, and whole other emoluments pertaining and belonging to the church and parish of Auchterarder, and that for crop and year 1835, and in time coming during all the days and years of his life: And it being so found and declared, the said Presbytery of Auchterarder, and the said Mr John Ferguson, &c. &c. the present individual members thereof, and their successors, and Dr Andrew Grant, one of the ministers of Edinburgh, collector, nominated and appointed under the several statutes, passed for the better raising and securing a fund for a provision for the widows and children of ministers of the Church of Scotland, and all others, ought and should be decerned and ordained, by decreet foresaid, to desist and cease from molesting and disturbing the pursuer, the said Robert Young, in the possession and enjoyment in time coming, during his life, of the said localled and modified stipend, manse and glebe, and whole other emoluments, belonging and pertaining to the said church and parish of Auchterarder : And it being so found, decerned, and declared, James Beveridge Duncan for the lands of Damside, &c. &c. (here follow the names of the heritors) heritors of the said parish of Auchterarder, ought and should be decerned and ordained, by decree foresaid, to make payment to the pursuer, the said Robert Young, of the stipend payable by each of them respectively, according to their several proportions, in terms of the subsisting decrees of locality, and that for crop 1835, and at the usual terms of payment, in time coming, during the life of the pursuer, the said Robert Young: And farther, to perform and fulfil all the other obligations incumbent upon them as heritors, to the pursuer, the said Robert Young, as legally, validly, and effectually, presented as aforesaid to the said church and parish of Auchterarder; or otherwise, it ought and should be found and declared, by decreet foresaid, that the pursuer, Thomas Robert, Earl of Kinnoull, has legally, and validly, and effectually exercised his right as patron of the said church and parish of Auchterarder, by presenting the pursuer, the said Robert Young, as aforesaid, to the said church and parish; and that the said Presbytery of Auchterarder, and the individual members thereof, have illegally, and in violation of their duty, and of the several laws and statutes before libelled, refused, and continue to refuse to make trial of the qualifications of the said Robert Young, presentee foresaid, and to admit and receive the said Robert Young, as minister of the church and parish of Auchterarder, but have illegally, and in violation of their duty, and of the laws and statutes libelled, as aforesaid, rejected the said Robert Young, as presentee to the said church and parish; and therefore, that the pursuer, Thomas Robert, Earl of Kinnoull, has right to, and is entitled to receive and retain the whole stipend and emoluments of and pertaining to the said church and parish of Auchterarder, from the date of citation hereto, and in all time coming during the life of the said Robert Young; and it being so found and declared, the said Presbytery of Auchterarder, and the said Mr John Ferguson, &c. &c. Dr Andrew Grant, one of the ministers of Edinburgh, collector, nominated and appointed under the several statutes, passed for the better raising and securing a fund for a provision for the widows and chil

dren of ministers of the Church of Scotland, and all others, ought and should be decerned and ordained, by decreet foresaid, to desist and cease from molesting and disturbing the pursuer, the said Thomas Robert, Earl of Kinnoull, in the possession and use, in time coming, during the life of the said Robert Young, of the said localled and modified stipend, manse, glebe, and other emoluments belonging and pertaining to the said church and parish of Auchterarder: And it being so found, decerned, and declared, the said James Beveridge Duncan, &c. &c. heritors of the said parish of Auchterarder, ought and should be decerned and ordained, by decree foresaid, to make payment to the pursuer, the said Thomas Robert, Earl of Kinnoull, of the stipend payable by each of them respectively, according to their several proportions, in terms of the subsisting decrees of locality, and that from the date of citation hereto, and in time coming, during the life of the said Robert Young; and the said Presbytery of Auchterarder, and the said Mr John Ferguson, &c. &c., the individual members thereof, personally, ought and should be decerned and ordained to make payment to the pursuers of the sum of L. 500 Sterling, or such other sum, more or less, as the said Lords shall modify as the expenses of the process to follow hereon, besides the dues of extracting the decree to be pronounced therein: And the other defenders, the said Dr Andrew Grant, collector of the fund established for the maintenance of the widows of the ministers of the Church of Scotland, &c. &c. heritors of the said parish of Auchterarder, (but only in the event of their offering resistance to the conclusions hereof,) ought likewise to be decerned and ordained, by decree foresaid, to make payment to the pursuers of the sum of L. 500 sterling, or such other sum, more or less, as the said Lords shall modify as the expense of the process to follow hereon, besides the dues of extracting the decree to be pronounced therein; all conform to the laws and practice of Scotland, used and observed in the like cases, as is alleged.—Our will is, &c. Dated and Signeted 5th October 1835.

II. DEFENCES FOR THE PRESBYTERY OF AUCHTERARDER, TO THE SUMMONS OF THE EARL OF KINNOULL, &c.

THE Summons in this case, after partially narrating the Acts of Parliament 1567, cap. 7; 1592, cap. 116; 1592, cap. 117; and 10th Anne, cap. 12, proceeds to state, that the pursuer, the Earl of Kinnoull, had executed a deed of presentation in favour of the other pursuer, nominating and presenting him to be minister of the parish and church of Auchterarder, and requiring the defenders to take trial of his qualifications, literature, good life, and conversation, and after having found him fit and qualified for the functions of the ministry of the said church of Auchterarder, to admit and receive him thereto, and give him his act of ordination and admission in due and competent form. That the said presentation, with the relative documents mentioned in the summons, were all given in and read at a meeting of the said Presbytery, and appointed to lie on the table till the next meeting. That at the said next meeting the Presbytery did so far sustain

the presentation as to find themselves prepared to appoint a day for moderating in a call to Mr Young, and appointing certain days for him to preach in the church of Auchterarder. That another meeting of Presbytery was held at Auchterarder, on the 2d day of December 1834, for the purpose of moderating in a call to the pursuer, Robert Young, and that the Presbytery, under protest on the part of Mr Young, then proceeded to afford an opportunity to the male heads of families whose names stand upon the roll, to give in dissents on the call and settlement of Mr Robert Young as minister of the parish. That the Presbytery afterwards found that dissents had been lodged by an apparent majority of the persons on the roll inspected by the Presbytery; and that, at another meeting, which was held at Auchterarder on the 7th of July 1835, "the said Presbytery did reject the pursuer, Mr Robert Young, the presentee, to Auchterarder, so far as regards the particular presentation now on their table, and the "occasion of this vacancy in the parish of Auchterarder, and do forth"with direct their clerk to give notice of this their determination to "the patron, the presentee, and the elders of Auchterarder."

The narrative then proceeds in these words, "That the foresaid "judgment and deliverance of the said Presbytery is illegal and un"warrantable, in so far as, though duly qualified as a licentiate of the "Church of Scotland, and in all other respects to be admitted and re"ceived as minister of the church and parish of Auchterarder, in terms "of law, and of the deed of presentation foresaid, the said Presbytery "refused, and contumaciously continue to refuse, to take the said "Robert Young, pursuer, upon trials, and to pronounce judgment on "his qualifications as a licentiate of the church, and presentee qualifi"ed as foresaid, or to receive and admit him as minister of the said "church and parish of Auchterarder, in terms of the statutes and pre"sentation libelled. In all which respects the said Presbytery, and "the individual members thereof, have acted illegally, in violation of "their duty, and of the several statutes libelled, to the serious preju"dice of the patrimonial rights of the pursuers."

Upon this narrative the summons subsumes, that "the pursuer, as "patron and presentee foresaid, had often desired and required the "said Presbytery, and the present individual members thereof, to "discharge their duty in terms of law and of the statutes before li"belled, by proceeding in the trials, admission, and final settlement "of the pursuer, the said Robert Young, as minister of the church "and parish of Auchterarder; yet they illegally and contumaciously, "and to the serious prejudice of the patrimonial rights of the pursuers, refuse so to do."

The conclusions of the summons are, not that the defenders should be decerned, in the words of the subsumption, "to discharge their "duty in terms of law and of the statutes before libelled, by proceeding in the trials, admission, and final settlement of the pursuer, the "said Robert Young, as minister of the church and parish of Auchter"arder;" but, that " it ought and should be found and declared, by "decree of the Lords of our Council and Session, that the pursuer, "the said Robert Young, has been legally, validly, and effectually "presented to the said church and parish of Auchterarder, and has