Scottish Court of Session Decisions

Subject_1 PATRONAGE.

Heritors and Minister of Lanark
v.
The Crown-Factor

Date: 9 May 1753
Case No. No. 6.

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In a case pretty similar to the above, (No. 4.) of the parish-of Culross, viz. of the Kirk of Lanark, which became vacant in August 1748, and Lockhart of Lee first presented Mr Dick, and then the Town, and afterwards the Crown presented Mr James Gray, Minister of Rothes; many proceedings were had both in the Church judicatures and Civil Courts. In the first, it made a round twice of Presbytery, Synod, and Assembly, and in the Session both Lockhart of Lee and Lockhart of Carnwath, severally pursued declarators of their right to the patronage, and the Crown defended against both. At last in October 1750, Mr Dick was ordained Minister of Lanark, and 10th July 1751, the Crown was found for ought yet seen, to have the best right to the patronage. Upon which the Court of Exchequer appointed a factor for levying the vacant stipends;—and a multiplepoinding being brought in name of the heritors, a competition ensued between the Crown's factor and Mr Dick. And I was of the same opinion as I was in the former case, that Churches ought not to remain vacant for years till contending parties dispute and settle their rights at law, and though Lockhart of Lee appeared to have been pretty backward to get the point of right settled, yet the parish ought not to suffer, and accordingly it carried to prefer Mr Dick; and the President mentioned a case decided in the House of Lords that he said was parallel, touching a presentation by Sir Alexander Cumming of Coulter, 29th July 1752. But the interlocutor was altered 24th November by the narrowest majority possible; the Court, (counting the President) being quite equally divided; and the last interlocutor was again altered, and the first adhered to, 2d March 1753, when the President, Haining, and Leven were absent, (though we had delayed it from before Christmas to get as full a Bench as possible;) and it carried only by the President, (i. e. Drummore when in the chair) his casting vote, Murkle being non liquet. But it was reversed in Parliament and the Crown's factor preferred.