Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by WILLIAM FORBES, ADVOCATE.

Mr Alexander M'Bean, Minister at Avoch,
v.
Sir Kenneth M'Kenzie of Scatwell, and Others

Date: 19 Feb 1714

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Mr. Alexander M‘Bean, being ordained and admitted at Avoch, pursued Sir Alexander M‘Kenzie, and other heritors of the parish, for payment of the stipend to him, according to former use of payment to his predecessors in that cure.

Answered for the defenders,—The pursuer hath no title to any stipend from them; because, 1. He was not legally admitted minister, in so far as he came not in by presentation from the patron; and was ordained by the presbytery tanquam jure devoluto, after the Act of Parliament, 10 Annæ, restoring patrons to their ancient right of presenting ministers to churches vacant in Scotland, within six months of the said statute ; and, consequently, before the presbytery could exerce any jus devolutum. 2. The pursuer is not duly qualified, by taking the oath of abjuration conform to another Act, anno 10. ejusdem reginæ. 3. His libel concluding a constant modified stipend to him and his successors in office, is competent only before the commission for plantation of kirks and valuation of teinds.

Relpied for the pursuer.—1. He opponed his ordination and act of admission produced, according to the usual forms of the church, which entitles him to the benefice ; and he exerceth the ministerial function in the parish. Again, the present action being possessory, for payment of by-gone stipends, and in time coming, conform to use and wont; it is not competent to the defenders, in this instance, to object against his title of admission; but they may insist in a reduction as accords. Nay, suppose the defenders were in a reduction, the objection against the pursuer‘s title is not relevant. Because the jus devolutum to the presbytery (which is confirmed by the Act of Parliament,) had taken place; and they had called the pursuer in virtue thereof to be minister at Avoch before the Act restoring patronages was made. Now, seeing the Act doth annul only calls by heritors and elders, and there was no place for such a call in this case, the patron, who succeeded in place of these heritors and elders, hath no pretension to that right which they had lost jure devoluto. 2. The defenders have no interest to object against the pursuer‘s not being qualified, by taking the oath of abjuration, till he be convicted by a sentence of a competent court, where the pursuer may have opportunity of a full exculpation. 3. There is no process here for a modification, but only for payment of by-gone stipends, and in time coming, conform to use and wont; which is most competent in possessorio, and hinders not a modification and valuation in their due course.

The Lords found, 1. The defence against the pursuer‘s admission and possession, not competent in this process. 2. Found the defence founded on his not taking the oaths not competent, he not being legally convicted thereof. 3. They repelled the defence of incompetency of court; and sustained process for the stipend the pursuer‘s predecessors in office had been in possession of, for by-gones, and in time coming, until there be a constant modified stipend allocated to the pursuer by the commission for valuation of teinds.

MS. page 28.