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 said 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 present individual mem"bers 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, "&c., 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 taining to the said church and parish of Auchterarder."

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Then follows a third conclusion against the heritors for payment to the pursuer, Mr Young, of the stipend paid 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, further, 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 afore"said, to the said church and parish of Auchterarder."

After these three distinct and specific conclusions, the summons proceeds in these alternative terms:-" "Or otherwise, it ought and "should be found and declared, by decree foresaid, that the pursuer, "Thomas Robert Earl of Kinnoull, has legally and validly 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 Auch"terarder, and the individual members thereof, have illegally, and in "violation of their duty, and of the several laws and statutes before "libelled, refused to admit and receive the said Robert Young, as "minister of the church and parish of Auchterarder; 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 then there follow the same subsidiary conclusions as those before quoted, against the defenders and Dr Grant," to desist and cease from molesting and disturbing the pursuer, Lord Kinnoull, in the possession of the stipend," &c. and against the heritors for payment of the said stipend, &c. And then there are two conclusions against the parties before mentioned, for payment of L. 500 of expenses of process.

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The acts of Parliament quoted in this summons being public acts, of which your Lordships are bound to take notice, it is no objection to the relevancy of the summons to state, that they are imperfectly quoted; but it is as well to mention, that the act of 1567, cap. 7,

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contains the following clause, which is studiously omitted in the sum-" Providing that in case the patron present ane person qua"lified to his understanding, and failing of ane, ane other, within the "said six months; and the said superintendent or commissioner of "the kirk refuses to receive and admit the person presented be the patron, as said is, it sall be leisome to the patron to appeal to the superintendent and ministers of that province where the benefice "lies, and desire the person presented to be admitted, whilk gif they "refuse, to appeal to the General Assembly of this haill realme, be "whom, the cause being decided, sall take end, as they decern and "declare."

In like manner, the pursuers have omitted to state, that although, until lately patrons had the administration of vacant stipends, they were bound to apply them to pious uses within the parish, at the sight of the heritors; and that, by the statute 54th Geo. III. cap. 169 (local and personal acts,) it is enacted, "That when any parish in the "Church of Scotland becomes vacant by the death, translation, or de"privation of any incumbent holding the pastoral cure and benefice of "such parish, and that vacant stipend thereby arises, subsequent to "the crop and year 1813, such vacant stipend, in so far as it has here"tofore been applicable by the patrons to pious purposes, shall hence"forth, and in all time to come, be levied in manner herein after" mentioned, and paid to the said general collector (of the Widows' "Fund,) who is hereby authorised to levy and discharge the same," &c.

A more serious objection to the summons is the imperfection of its narrative, with regard to the proceedings in the church courts, which would lead the Court to infer that the pursuers have neglected to avail themselves of their right of appeal to the superior church judicatories; and that they have brought their case into this Court before exhausting all the natural and legal remedies provided for them by the Legislature, and particularly those pointed out in the passage which the defenders have quoted from the Act of Parliament 1567. This, however, must have arisen from mere oversight; and it seems sufficient to say, that the pursuers appealed from the sentence of 2d December 1834, first to the Synod of Perth and Stirling, and second to the General Assembly; by both of which courts the sentence of the Presbytery was affirmed; by the former on 21st April 1835, and by the latter on 30th May 1835; the judgment on which occasion is expressed in the following minute: " At Edinburgh, Saturday, the 30th day of May 1835, Session 10.—Which day the General Assembly of the "Church of Scotland had transmitted to them by their Committee of "Bills, petition of Mr Robert Young, presentee to the church and "parish of Auchterarder, against four sentences of the Synod of Perth "and Stirling, of the 21st April 1835; the first refusing extracts in "his case, under a reference from the Presbytery of Auchterarder ; "the second affirming the judgment of the Presbytery of Auchterar"der, of the 2d day of December 1834, repelling objections to the "roll of male heads of families, communicants in the parish of Auch"terarder; the third affirming a judgment of the Presbytery of Auchterarder, of the 2d day of December 1834, resolving to pro

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"ceed in the face of the above appeals; and the fourth affirming a judgment of Presbytery of same date, finding that dissents had been lodged by an apparent majority of persons upon the roll." Then, after mentioning the partibus, or compearance of parties, it proceeds, "It was moved and seconded, that the General Assembly sustain the appeal, reverse the sentence of the Presbytery of Auchterarder, in "so far as the Presbytery refused to proceed with the trial and settle"ment of the appellant, as presentee of the parish of Auchterarder, "there being no special objections against him, or dissents by a majo"rity of the male heads of families, according to the roll made up "in the manner prescribed by the regulations enacted by the last "General Assembly, and remit to the Presbytery of Auchterarder to proceed with the trial and settlement of the appellant, according to "the rules of the Church. Another motion was made and seconded, "That the General Assembly find that the Synod did wrong in finding that the appellant had not a right to the extracts referred to, " and so far sustain the appeal, and reverse the sentence in that mat"ter; but, in respect that the Presbytery, while they referred the question as to the right of the appellant to require such extracts, "did authorise their clerk to give the extract which was afterwards produced to the Synod, and that the said extract was on the table "of the Synod and was read, as the minutes bear, and that a copy of "that extract has been laid before the Assembly by the appellant, "find that the said sentence forms no bar to the Assembly now giving judgment on the merits of the cause; and, on the merits, dis"miss the appeal, and find that the proceedings of the Presbytery are "not liable to any valid objection; and remit to the presbytery to 'proceed farther in the matter, in terms of the interim Acts of last Assembly. The vote having been called for, it was agreed that the "state of the vote should be first or second motion; and the roll be"ing called, and votes marked, it carried second motion by 131 to 95.” It was in consequence of, and in obedience to, this decision of the General Assembly, that the defenders did, on the 7th day of July 1835, as libelled in the summons, Reject the pursuer Mr Robert Young, the presentee to Auchterarder, so far as regards the parti"cular presentation now on this table, and the occasion of this vacan"cy in the parish of Auchterarder.”

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Having thus stated so much of the circumstances or details of this case, as are necessary to its distinct apprehension, your Lordships will perceive that the pursuers do tacitly, but very completely and effectually, acknowledge the perfect independence of the Ecclesiastical Courts upon your Lordships, or any other civil judicature; for although they narrate that the judgment of the Presbytery" is illegal " and unwarrantable, in so far as, though duly qualified as a licentiate "of the Church of Scotland, and in all other respects, to be admitted "and received 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," &c.; and although they subsume, that they have often desired and required the said

Presbytery" to discharge their duty, in terms of law and of the sta"tute 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 Auchterarder;" they do not venture to deduce any conclusion that the pursuer has been effectually admitted minister of the church and parish of Auchterarder, and is entitled to exercise the spiritual functions attached to the office of minister; or that the Presbytery should be ordained to take him upon trial, to find him qualified, and to induct him into the said office. If this had been the nature of the pursuers' conclusions, it would have raised a very important, but by no means a difficult question, as to the independence of the Church of Scotland in the matter of induction and ordination, as the only means of forming the spiritual relation between a pastor and his people; and it might have been the duty of the Presbytery, not only to themselves, and to their order, but to your Lordships, as a court necessarily and unquestionably acquainted with the exact limits of your own powers and jurisdiction, to have abstained from entering into any of the details which they have now deemed it expedient to give, and to have respectfully declined your Lordships' jurisdiction in the matter.

The course followed by the pursuers, however, has happily saved the defenders from the necessity of resorting to any such objection; for although nothing else could have been expected from the terms of the narrative, and the subsumption, than that they were to proceed to conclusions of the nature of those now suggested, the pursuers have restricted themselves to certain conclusions of another sort, and to which it is not meant to be maintained that your Lordships are not competent. These conclusions, as your Lordships have perceived, result into this; First, That the pursuer Mr Young was legally, validly, and effectually presented: Second, That the defenders, and Dr Grant for the Widows' Fund, should be prohibited from molesting him or Lord Kinnoull in the enjoyment of the stipend, glebe, &c.: And third, That he or Lord Kinnoull were entitled to the same, and that the heritors should be ordained to make payment to one or other of them accordingly.

With regard to the first of these conclusions, if the defenders understand what it means, their answer is, that they have admitted that Mr Young was legally presented to the parish and church of Auchterarder, in so far as they first received and afterwards sustained his presentation. But if any different meaning is couched under the words "validly and effectually," they call on the pursuers to explain what it is; and at present shall only protest that, if they mean that Mr Young did, in virtue of his presentation, acquire the full character, status, and rights, of the ordained minister of the church and parish of Auchterarder, they express what is utterly contrary to law, and what cannot for a moment be listened to by your Lordships. But this cannot have been the intention of the pursuers; and in so far as concerns this first conclusion, it is enough to say, that if, as will be seen immediately, it leads to nothing else than that there was a good presentation, the defenders should not have been put to the trouble,

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inconvenience, and expense, of coming into Court, to hear a point declared which they had not only not denied, but which they had distinctly assumed and acted upon.

With regard to the second conclusion, it ought not to have been directed against the defenders. It is settled law, that no man has a right to the temporalities of a benefice, till he has been ordained and inducted by the Ecclesiastical Court. But your Lordships cannot compel, and you are not asked to compel, the defenders to ordain or induct the present pursuer. It is also settled law, that all vacant stipends shall be paid to the collector of the Widows' Fund; and that the manse and glebe belong to the heritors, and not the patron, during a vacancy; and both these parties well know how to assert their own rights. And, lastly, if any thing is clearer than another, it is, that Presbyteries never had, and have not now, any right to vacant stipends. The defenders never pretended that they had any such right, nor have they done any thing indicating any intention of making such a claim, or any conception that they were entitled to do so. With regard to this conclusion also, therefore, it is submitted, that it ought not to have been levelled against the present defenders.

With regard to the third conclusion, it is directed solely against the heritors, and it would be improper for the Presbytery to take their defence out of their own hands.

The defenders ought therefore to be assoilzied with expenses.

PLEA IN LAW.-The whole conclusions of the summons are inapplicable to the case of a Presbytery which has not asserted any right of presentation jure devoluto, nor any claim for themselves or others to any part of the benefice or temporalities of the church or parish. Under protestation to add and eik,-Ro. BELL.

III. REVISED CONDESCENDENCE FOR THE RIGHT HONOURABLE THE EARL OF KINNOULL, &c.—Pursuers; AND REVISED ANSWERS FOR THE PRESBYTERY OF AUCHTERARDER, Defenders.

Cond. 1. That the church and parish of Auchterarder became vacant by the death of the Rev. Charles Stewart, on 31st August 1834. Ans, 1. Admitted.

Cond. 2. That the pursuer, the Earl of Kinnoull, is, and was, at the date of the said vacancy, the undoubted patron of the said church and parish, and that the pursuer, the Rev. Robert Young, was then a duly qualified licentiate of the Church of Scotland.

Ans. 2. Admitted.

Cond. 3. That at a meeting of the Presbytery of Auchterarder, which was held at Trinity Gask on the 14th of October 1834, Mr Robert Hope Moncrieff, writer in Perth, on the part of the Earl of Kinnoull, laid on the table of the Presbytery a presentation by his Lordship, as patron of the church and parish of Auchterarder, in favour of the other pursuer, the Rev. Robert Young, dated the 16th day of September 1834, whereby his Lordship nominated and appointed the said Rev. Robert Young, to be minister of the said church and