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Scottish Court of Session Decisions >>
Mr James Gordon, Parson of Banchory, and Robert Cruckshank of Banchory. [1694] 4 Brn 169 (16 Feb 1694)
URL: http://www.bailii.org/scot/cases/ScotCS/1694/Brn040169-0388.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Mr James Gordon, Parson of Banchory, and Robert Cruckshank of Banchory
1694.
Feb.16and
June18.
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February 16.—The Lords advised the bill and answers betwixt Mr James Gordon, parson of Banchory, and Robert Cruckshank of Banchory, provost of Aberdeen, about his teinds. The last Defence was,—You have no right to your stipend; because you have not qualified yourself by taking the oaths, conform to the Act of Parliament 1694. Answered,—That deprivation cannot take effect till it be applied by a sentence, either of the Privy Council or some other civil judicatory, or of the Presbytery, or some other church assembly; and that beneficium semper sequitur officium, they having served for it. And the Lords compared this late Act with the Sd Act 1662, depriving the Presbyterian ministers:—the one inflicted it ipso jure; and the other ipso jacto. And it was alleged,—That such Presbyterian ministers as continued to preach by connivance, contrary to law, got their stipends; as was found in 1664, in the case of Mr John Vietch, minister of Westruthers.
At last the Lords fell upon this medium, That the minister should have the stipend, (the certification not being yet applied;) he finding caution to refund it, in case it should be afterwards found that he had no right thereto, or should be ordained, by any subsequent act or sentence, to repay the same. See 10th February 1666, Collector of the Vacant Stipends against The Heritor of Maybole; and 10th January 1679, College of Aberdeen.
Vol. I. Page 609.
June 13.—Philiphaugh reported the bill of suspension given in by Cruikshanks of Banchory against Mr James Gordon, minister there, (mentioned 15th February 1694,) on these reasons:—1st. That the quantities of the teind, (which had been pled to be decimœ inclusœ, but were not found such,) were not proven; 2d. That he, not having taken the oaths appointed by the Act of Parliament 1693, he had no right to his stipend. Answered,—He was often holden as confessed on it, and a commission directed, which he slighted. And, as to the second, there was no sentence, civil nor ecclesiastical, applying the certification of the act; and there was a great difference between the sanction of a law and the application of it. Replied,—The charger seemed to confess the quantity was exorbitant; seeing he alleged the provost had bought it at that rental; and that was not proven. The Lords reponed the provost, and allowed the bill to pass; and, it being moved that he should first pay the charger's expenses;—yet the Lords refused that; and only reserved it to the conclusion of the cause, if they saw ground.
