2

his lordship was patron. It has, however, not only been. sanctioned by a subsequent judgment of the House of Lords, but carried by that judgment to an extent not pretended to in the case of Haddington, where it was admitted that a reservation of the right in the deed of foundation would have excluded the patron.

79. That such reservation would be effectual, is also expressly laid down by Erskine (1. 5. 15); but it seems to have been considered insufficient in the case of Cuningham v. Wardrop, above referred to, relative to the parish of Whitburn.

In this case the presbytery of Linlithgow had, in 1650, on a petition from the inhabitants of the parish of Livingstone, declared, that it was a sufficient charge for two ministers, and described the limits of a new parish. Nothing was done in this till the year 1719, when a number of heritors and inhabitants doted certain funds for supporting a minister, building a church, acquiring ground for a manse and a glebe, in a regular deed of mortification, whereby they declared, inter alia, that the ministers of this newly endowed church should be chosen by the heads of families in the parish, qualified in the manner therein prescribed, to the exclusion of all patrons or others whatsoever, both from the right of presenting, and disposal of the vacant stipend. In 1731, a process of disjunction and erection was brought before the court of teinds, in which was produced a consent by the patron of Livingstone to the new erection, with a proviso that it should not prejudice his rights to the tithes either of the parish of Livingstone

1 Town of Dundee, v. Lord Lauderdale, ut supra. The influence of Lord Hatton, as the brother of the Duke of Lauderdale, who, at the date of the decision, was still in power, is known to have been very great, and not unfrequently to have been exerted for private objects. In the present instance the alleged object was not attained, a distinction being taken between the cases of Dundee and Haddington in consequence of the undoubted exercise by the town of Dundee of the right of presentation. By this time, however, the Duke of Lauderdale was dead. His Grace had previously fallen into disfavour, and lost his office of Secretary for Scotland. He was succeeded in his honours of Earl of Lauderdale by Hatton himself, who was the party in the case of Dundee above cited.

Cuningham v. Wardrop, Feb. 26, 1762 (M. 9933.)

C

or of the new parish. The court of teinds disjoined the part of Livingstone intended for the new parish, and erected it into the parish of Whitburn, without any provision as to the patronage. In 1731, and 1759, respectively, a minister was elected by the heads of families, a protest being, however, on both occasions, taken by the patron who, in 1760, brought a declarator of his right to present to the new parish, and also to apply the stipend arising from the mortified funds during vacancy. The Court having first decerned in his favour, afterwards altered, and preferred the parishioners; but, on an appeal, the House of Lords reversed their final judgment, and determined in favour of the patron.1

80. In a prior case, the right of the patron of the ecclesia matrix to the patronage of another church, a pendicle thereof, and of which the parson of the mother church had been patron, was held to be excluded, notwithstanding the brocard, "patronus mei patroni est mihi patronus," on the ground that the parson of the mother church having been patron of the pendicle, his right accresced to the crown, as coming in place of the parson.2

81. A conveyance of a feudalised patronage in favour of the heritors and the tenants in certain lands of a parish, will be effectual to constitute the heritors and tenants, in time to come, patrons.3

32. The conveyance of a right to present on a particular vacancy, can afford no ground for competing with a singular successor in the right of patronage itself, and is incapable of feudal transmission.*

83. A right of patronage may properly be made the sub

One of the patron's arguments (which were sustained) was as follows: "That the rules laid down in the deed of endowment for calling the minister of this parish, destroyed the subordination that ought to take place in well-ordered societies, tended to render settlements inextricable, and must be productive of perpetual dissension." One of the arguments on the other side (which were repelled) was founded on the act 1633, c. 6, which enacts, "That it shall noways be lawful to alter, change, or invert, any pious donations to any other use than that specific use whereunto they are destinate by the disponer himself."

2

Magistrates of Lanark v. Earl of Moray, Feb. 5, 1709 (9908.)

3 Dicta in Brown v. Johnstone, June 9, 1830 (8 S. & D. 899.)

4 Lord Arbuthnot v. Calderwood, Jan. 19, 1821 (F. C.)

ject of a liferent provision, by way of locality, to a widow, who will have right to present during her life.'

84. The magistrates of a royal burgh cannot alienate the patronage of a church within burgh.2

85. The heritors of a parish have, as such, no title to insist in a reduction of a grant of patronage by the crown. In the case referred to it was also found that a stipendiary minister would have no title to pursue a reduction of such grant, as made without consent of the beneficiary, in violation of the act 1593, c. 126, even if that act were not in desuetude.

1 Duke v. Duchess of Roxburgh, June 25, 1818 (F. C.) Lady v. Lord Forbes, Feb. 18, 1760, in House of Lords (stated in Lady Forbes v. M'William, Feb. 1762, M. 9931.)

2 Wallace v. Magistrates of St Andrews, Feb. 27, 1824 (2 S. & D. 758.)

3 Minister and Heritors of Ashkirk v. Elliott, July 23, 1702 (4 Brown's Sup. 532.)

CHAPTER III.

OF THE EXERCISE OF THE RIGHT.

86. By the canon law, the right of presenting to a benefice could only be exercised on the occasion of a vacancy, although the Pope was in use to issue several bulls for the same benefice, even when full, which were called gratiæ expectativa. Our writers lay down the same rule as part of our law,1 and it was enforced in the only case which, till recently, had been the subject of discussion in our civil courts.2

87. That, however, was a special case, inasmuch as the presentation was to a benefice not of cure, and was made in the form of a substitution to a father, whom failing by decease, to his son, and was, besides, from a bishop, whose successor had thereby a plea, founded on its being a dilapidation of the benefice by his predecessor, and, consequently, it might not be considered strictly applicable to the case of assistants and successors in benefices of cure.

88. The expedient practice of presenting, with consent of all concerned, such assistants and successors to incumbents who, by reason of old age or permanent ill health, have become incapable of duly performing all the functions of the ministry, commenced at an early period in the reformed church.

1 Ersk. 1. 5. 11. Forbes, 43.

2 Laird of Invernytie v. Nairn, Jan. 24, 1677 (M. 9899.) In like manner our reformers seem to have assumed the vacancy as a pre-requisite to the appointment of a successor in the pastoral office, election being described in the second Book of Discipline as "the chusing out of a person or persons maist able to the office that vaikes," (chap. 3, § 4;) and it expressly provides, that "nane ought to be intrusit or placeit in the places alreadie plantit, or in ony roume that vaikes not, for any warldlie respect," (chap. 3, § 5.) This, however, probably had reference to the Tulchan system, then in operation, by which clergymen were presented to benefices under paction with the patrons, to enable the latter more easily to appropriate the fruits of the benefice.

89. An instance of this, with reference, however, to the pastoral office only, there being no presentation by a patron, occurs so early as the year 1597,1 and there can be no reason to doubt that this practice would prevail, more or less, from the period when it first occurred; in the present day it is quite universal, in the circumstances in which alone it is warranted, and has indeed obtained, though indirectly, the sanction of the legislature."

2

90. Still, regarded as a matter of civil right, a presentation of this description, during the life of the incumbent, in a question with a party entitled to challenge such exercise of the right, as, for instance, a fiar whose presentation has been anticipated by the liferenter, had not, till recently, received the sanction of the courts of law. In a late case, however, the validity of such a presentation by the magistrates and council, in regard to one of the ministers of a collegiate charge in Edinburgh, having been challenged by their successors in office, was sustained by the Court, and their judgment has been affirmed on appeal.*

In the case of Gullan, as appearing from the records of the presbytery of Haddington, mentioned in the notes to the Life of Melville, by Dr M'Crie, whose learning and research in all matters regarding our church is so conspicuous (vol. i., note EE. p. 470-1.) See the call itself in this case, infra, 196, note. It is probable that it was only at a considerably later period, that presentations by patrons to the successorship of benefices came into use. In the note above quoted, there is an instance mentioned as occurring in the same year, of a son having obtained from the Crown a presentation on the demission of his father, which would not probably have been required if the practice of granting presentations as assistant and successor had been known.

* See a number of instances, from 1730 downwards, mentioned in Connell on Parishes, note, p. 515.

3 In the 48 Geo. III. c. 50, restraining the crown from granting the reversion of offices, it is provided, that it shall not be construed so as "to prohibit the appointment of assistants and successors to the parochial clergy of Scotland."

1832.

4 Luke v. Brown, &c. Feb. 10, 1832, (10 S. & D. 307;) affirmed Aug. 14, The note of the Lord Ordinary, Moncreiff, is so important and valuable, that I subjoin it at length.

"The Lord Ordinary has considered this case with care, because it has been treated as a case of importance. It is undoubtedly a case of great importance in some views of it; but he should not do justice if he did not state, that it is a case in which he has never entertained the slightest doubt.

"The material facts are simple :-Dr Simpson, at the age of eighty-five, intimated to the Town Council that he had no hope of being able to continue to discharge the duties as minister of the Tron Church of Edinburgh, and that he was desirous, if the