« ZurückWeiter »
In conducting discussions upon ecclesiastical questions in Scotland, frequent reference has necessarily to be made to the decisions of the Court of Session as bearing upon the legal position of the various churches. As the reports of these decisions are scattered through law reports, not to be found unless in professional libraries, it has been considered desirable to have a reprint of the leading cases decided since 1843. The present Volume contains an exact reprint of these cases, taken from the Court of Session Reports, and printed without note or comment. For the sake of convenience, the cases have been arranged as affecting the different churches—those relating to each church being thus brought together according to the date of decision.
Only one of the cases included in this volume—that of Forbes v. Eden—was appealed to the House of Lords, and the date of affirmance of the Court of Session's decision is noted at the end of the case.
A list of the cases is prefixed, with the rubric of each case added, for the purpose of facilitating reference.
1. STURROCK v. GREIG, July 3, 1849, 11 D. 1220 .
Reparation — Privilege — Church — Malice — Probable Cause —
Process -Issue.-1. No action for damages will lie against a Church
Court of the Established Church for any sentence or judgment pro-
nounced by them in a proper case of discipline duly brought before
them, regularly conducted, and within their competency and pro-
vince as a Church Court, even although it be averred that the judg.
ment was pronounced maliciously, and without probable cause. —
But observed, that any sentence or judgment of these Courts, which
is beyond their jurisdiction, or whereby they refuse to exercise powers
conferred upon them by law, will be reduced and set aside, and
damages awarded to any person injured thereby.
2. In a case where an Inferior Church Court did not act judi-
cially, but merely presented a petition to the General Assembly,
praying for advice, on a narrative which was averred to be false,
malicious, and calumnious, and made without probable cause, the
Court held that no action of damages would lie against the Court, in
respect the petition was intimately connected with proper judicial
proceedings before them, and was composed almost entirely of a
statement of these proceedings.
3. A Kirk-Session pronounced a sentence against a member of
the Church, which was reversed by the Presbytery and Synod on
appeal ; but the Session, notwithstanding, refused to obtemper the
judgment of the higher Courts, and reiterated from the pulpit, by
means of the minister, the charges contained in their original
sentence. In an action of damages against them for so doing, -Held
that it was unnecessary to libel malice or want of probable cause,
but simply that what they did was done falsely and calumniously,
and in violation of duty.
4. A Kirk-Session having the right to nominate certain scholars
to a mortification, refused to do so, and intimated to parties interested
therein that their reason for so doing was, that the teacher of the
school was unfit for and neglected the duties incumbent on him as
teacher. Held not necessary, in an action of damages, to libel
malice, but merely that what the Session said was false and
the grounds that the libel on which the sentence proceeded was
defective in the instance, that evidence had been improperly rejected,
and that the procedure before the Presbytery had been generally
irregular and oppressive. The Court-holding that the offences
committed by the suspender were proper for the cognisance of the
Church Courts, and that such being the case, the Civil Court had
no right either to control the Church Courts in their procedure, or
to review their sentence on its merits—refused the note.
3. PATERSON V. PRESBYTERY OF DUNBAR, March 9, 1861, 23 D. 720
Church-Jurisdiction—Interdict.—A minister having been served
with a libel, charging him with intoxication, lodged defences, and
was thereafter cited to appear personally at a certain meeting of
Presbytery, on which occasion he was represented by counsel and
agent who pleaded intervening insanity, of which he offered to lead
evidence at a future diet, in bar of any further procedure. The
Presbytery, in respect of his having given in defences, and thus
sisted himself as a party to the cause, and also in respect of the
vagueness of the crave, refused to sist proceedings. A note of sus-
pension and interdict was presented against the Presbytery adopting
further procedure until the plea of insanity should have been con-
sidered and disposed of. The Court (aff. judgment of Lord Jervis.
woode), holding that in the circumstances stated there was no ground
for interference, refused the note, without answers.
4. WIGHT V. PRESBYTERY OF DUNKELD (Auchtergaven Case),
June 29, 1870, 8 M. 921 . .
Church, Courts of — Jurisdiction - Ecclesiastical Offence --Sus-
pension.-A minister of the Established Church was served by his
Presbytery with a libel charging him with “fornication, as also
indecent and scandalous familiarity by a minister of the gospel with
a woman.” He pled guilty to "scandalous familiarity with a
woman,” but denied fornication or indecent familiarity. The Pres.
bytery, in February 1870, accepted his plea, and suspended him for
six months. On the petition of five of his elders, who had not
appeared in and were not parties to the proceedings before the Pres-
bytery, the General Assembly, held in May 1870, found that the
proceedings of the Presbytery in accepting the plea without dispos.
ing of the charges in the libel were irregular, and ordained them to
proceed with the libel. The minister presented a suspension of this
judgment of the Assembly, on the grounds (1), that it was incom-
petent for the petitioners, who were not parties to the proceedings
of the Presbytery, to apply to the Assembly by petition ; and (2),
that having been tried and sentenced by a competent Court, and
undergone more than one-half of his sentence, the Assembly ex-
ceeded their jurisdiction in ordering him to be tried again on the
same libel. Held that the proceedings complained of were within
the exclusive spiritual jurisdiction of the Church Courts, and could
not be reviewed by the Court of Session.
5. PRESBYTERY OF LEW8 v. FRASER, May 16, 1874, 1 R. 888
Church-Ecclesiastical Courts— Witness—Warrant of Citation-
Sheriff. - Held that it is competent for the Sheriff, as Judge