Laying aside, then, all prepossessions on this subject, we are to look to the matter solely as a court of law.

Then the next point is clearly to understand what the pursuers mean when they maintain that separation from the judicatories of the Secession Church involves forfeiture of the property. Though several times pressed to state what was their legal proposition, they avoided very carefully giving us any explanation on the point; and, so far as I could discover, the two counsel for the pursuers were not exactly agreed on the subject.

The two pleas on record are as follows: It is most important to consider them-" 1. The church or meeting-house, and other property now in question, having been purchased and acquired, and held in trust for the behoof of a congregation of Seceders, dissenting from the national church, but remaining in communion with the United Secession Synod, now called the Synod of the United Presbyterian Church, and the defenders, who formerly made a part of such congregation, having now either become an independent congregation, or having joined with some other religious body, are no longer entitled to claim the possession or use of the said church and meeting-house, or other property, and decree ought to be pronounced in terms of the conclusions of the pursuers' libel. 2. The mere averment that the defenders hold certain tenets similar to those which were held by the congregation for whose behoof the property in question was acquired and held in trust, can be of no avail, even if it were true, seeing that the property is not held for the behoof of a congregation holding certain tenets, but for the behoof of a congregation remaining in communion with a certain ecclesiastical body, and subject to the jurisdiction of the synod and other courts of that body." The first is vague enough-the second, as worded, is directly against the judgment in the case of Craigdallie, unless it is made out as matter of fact that such was the trust by the original contract of parties.

,

But then arises at once the great importance of the question pat by Lord Eldon, Quid juris, if the whole congregation had refused longer to be subject to the jurisdiction of the Synod: Is it maintained that the congregation would forfeit their property, and in favour of whom? Has the synod (apart from the technical objection of not being an incorporated body) any right to enforce such an alleged condition by claiming the property? There is no greater error than avoiding the consideration of fundamental principles, as was done in this Court in Craigdallie's case, by stating that extreme cases are to be judged of when they arise.

But this question by Lord Eldon, and urged in this Court, is not putting extreme cases, but only considering the consequences, when legitimately followed out, of such vague propositions as those stated on this record, and in that way alone can the principle really at the foundation of the plea be correctly Ascertained and understood. Now, then, is this a trust only in name for the congregation, but in effect and reality for their ecclesiastical superiors? Is it a trust for the Burgher Associate Synod, and subsequently for the Secession Church? Have any parties persona standi under this title to vindicate the property as not that of the members, in the event of their no longer remaining in connection with, and subject to, the United Secession Church. That proposition the pursuers would not directly maintain. Yet that ought to be the result if the plea is sound; for what is the meaning of a trust of property, the condition of which is adherence and subjection to the ecclesiastical superiors of the sect, and in regard to which separation from that body is a violation of the trust, and infers forfeiture of the property? It means, that those who originally acquired the property, and formed the trust, did not intend that the property should ever be diverted from the purpose for which it was held, and hence, if a fundamental condition was subjection to the governing body, then the whole congregation ought to forfeit the property in the event of separation. If not, then clearly such subjection was not a fundamental purpose of those who formed the trust. Now, the pursuers would not maintain that, if all the congregation left the Secession, and an entirely new set of persons came forward saying, we are now Seceders in Kirkintilloch in connection with the Secession Church, and though only just formed, and never part of the former congregation, the result would be that the members of the congregation which had always been there would forfeit their property. That the pursuers could not, and did not contend. Yet, unquestionably, if it was a proper trust for union with the Secession Church in the abstract, that would be the result, and one quite easily extricated in point of law.

But, in truth, the whole of this plea is an attempt to confound two things, distinct in nature, and origin and results—a trust for the members of a congregation, and a trust for the governing body of such sect, or for the use of any congregation of that sect at the place.

Then, is adherence to the Secession Church proved to have. been matter of positive contract, which is to decide the property, although the majority retain all the opinions on which the original parties associated? The original title contains no other description of the parties than the members of the associate congregation in Kirkintilloch, commonly called Seceders. For a long time the Seceders had been divided into two bodies, and in 1792-8 new divisions were beginning to spring up among them, from a variety of causes, which led to further splits. There is no minute of the congregation at the time produced, declaratory of any other union between its members, than simply that of a congregation of the class called Seceders. The title is even more general, as it was originally expressed, than that in Craigdallie; for, in that case, there was the element in the original minute of submission originally to the ministry of Mr. Wilson, one of the four founders of the Secession, and further minutes, which very clearly established connection with the small presbytery of the Secession, in the very outset of its earliest meetings. Accordingly, the House of Lords, even in the judgment of reversal, had no difficulty in finding, “as a matter of fact sufficiently established by proof, that the society originally formed acceded to a body termed in the pleadings the Associate Synod." But, so far from that fact of accession by the original society to the Associate Synod leading to any conclusion in point of law, when a portion of the members subsequently separated, that it was held only to require proof of the doctrines of the original society, so as to see whether, as matter of contract respecting the purpose of the trust, separation from the synod could have any effect at all, if the parties maintained the principles of the original congregation.

At the date of the formation of this society, and at the date of the original title in this case, thirty years later, adherence to the United Secession Church could be no part of the objects of the society, or of the purposes of the trust which they constituted, for the United Secession Church did not then exist.

This consideration is to my mind quite conclusive. We must look to the conditions of the contract, or purposes of the trust, as originally formed by those who united into a society for certain purposes, which, by their opinions, and their opinions alone, are to be determined. And adherence to the United Secession Church, formed sixty years after the union of the society of Seceders at Kirkintilloch, could not be a fundamental condition of the original trust..

However, let us see how far the case is altered in the progress of things. The titles in 1832 and 1836, taken after two of the bodies of Seceders, not all, had united in 1820, add the words, "and presently in connection with the United Secession Church." I have already said that there is no proof whatever that this addition was the result of any minute of congregation, or agreement among the ministers, or was accompanied by any declaration or bond among them, by which any particular effect, as matter of contract, was to be given to these terms. The union having been formed, and as this congregation went along with it, the title was naturally expressed so as to describe them as presently in connection with that united body. But that description does not go further than the finding of the House of Lords, that the society forming the Kirkintilloch congregation had acceded to the Associate Synod, even if it had been proved that the terms of the addition on the title had been made known to the congregation. The terms are happily enough chosen as descriptive of the state of the fact at that particular time, but clearly denote that they are terms of present description, and no more. That union was a change-a great one-it might or might not answer-it might or might not lead to other changes -and the Campbeltown case shews, that, as early as 1832, proposals for union with the Relief Church had been mooted. What other changes might happen could not be foreseen-the permanence of the union of 1820 might be doubtful, and hence a phrase is taken which seems to me to be curiously significant of the independence of the congregation, so far as their property is concerned, and felicitously limited to the existing state and accidental position of the congregation at the time, so as to imply-for such is to my mind the implication-that, so far from these terms of description making adherence to the United Secession Church a condition, and a paramount condition, of a

purpose, principally, "of discussing the terms of the proposed basis of union." Three meetings were held-reports as to the answers by congregations received-and the report of the joint committees of both bodies read, containing a scheme and basis of union, copies of which had been sent to all members of synod, as the minutes bear. Hence the whole scheme was before Dr. Marshall, and we have not heard that any substantial change was made. At the fourth meeting, the terms of the proposed articles of union were taken up. Plainly at this meeting, then, arose the time for any preliminary condition to be brought forward. If that was rejected, then it would have been absurd and inconsistent for any one holding that preliminary to be essential, to go further in the proposal for union. The first was one too abstract, but too true, to open up room for any other motion. When the second section was read, then Dr. Marshall moved (reads).

This was a motion of the necessity of things being done preliminary to any union with any body. It was an objection to union-and on the preliminary ground. We have something ourselves to do which has become necessary when another body is proposed to be associated in government, discipline, jurisdiction, and ecclesiastical superintendence, the effect of which no one can anticipate, on our practical position in regard to faith, doctrine, and discipline.

Dr. Marshall's motion was for a preliminary step to unionan objection to going into union without something being done: It was rejected.

Then came his protest, which seems to be framed on the model of Mr. Jervie's in the Craigdallie case, making allowance for that greater intensity of expression which the far greater importance of the grounds taken by Dr. Marshall, and, it may be, the difference in the temperament of different minds, might lead to. In effect, however, it was not so strong an act of separation as that in Craigdallie. To this protest the congregation adhered; and I shall assume that the case is to be judged of by it.

Now, the facts shew that this step cannot be separated from the proposal to unite with another body, in consequence of which, and as a condition of which, it originated, and was brought forward. From May 1845 till October 1846, Dr. Marshall had been quiescent on the subject of the alleged heresy. He joins the meeting called to consider the union, and at the fourth meeting makes his proposal for a preliminary condition, grounded, it is true, on the former acts of the Secession Church, but which are taken up owing to this proposed union. Whether we think this a reasonable or fitting preliminary to union with another body, is not the question. The matter of actual fact is, that it was in respect of the proposal of union that, at the meeting called to discuss the basis of union, that motion was brought forward; and we have not the slightest particle of evidence that, but for that proposal of union, the terms of which, as agreed to by the joint committee, were promulgated, Dr. Marshall would have taken any such step. The sumnions implies the reverse.

This, then, is in truth an objection to union-whether stated in the exact form and way which a skilful lawyer would have put it in reference to the legal questions to which the protest might give rise, I do not inquire; for I must look to the plain substance, and honest reality and purport, of what is done; and I regard that protest, in the circumstances, and having regard to the time and occasion when it was stated, as a refusal to go along with the Secession Church into the union, the terms of which this extraordinary meeting of the synod was called upon to consider. Then, viewed in this light, the objection to such union, either absolutely, or on such conditions as any congregation chose to stipulate for, was a matter of perfect competency on the part of any such society. Whether the body generally could compel any objecting congregation to join in this union under the penalty of forfeiting their property, or whether, if a majority of such congregation refused to concur in this union, they must lose their property, held for a trust long previously constituted, and surrender it to a minority, although against such majority not the slightest departure from principles is averred, are points on which, although very urgently put to the counsel of the pursuers, we got only at last not a very distinct answer, and not one word of argument. Mr. Bell most dexterusly assumed that the defenders admitted that they must justify refusal to go into the union, shewing the union to be unconstitutional or illegal, and contented himself with an elaborate argument to shew that it was neither. The Dean of Faculty waived the point entirely, for he argued that the pro

perty was previously and legally forfeited before the union, and that the whole matter as to the union was thus entirely out of the case. But when we are brought to the point-if the separation is truly on occasion of, and in respect of, the proposed union on a basis objected to, is the property of the majority to be forfeited without any change of principles on their part, simply because they refuse to go along with the United Secession Church into the union ?-we have not heard any distinct plea stated, much less argument.

I am very clearly of opinion, that whether in other respects united to ecclesiastical superiors, and whatever might be the effect of separation if not arising out of such proposed union, any congregation in the circumstances of this one is entitled to refuse to submit themselves to any such changed government, or to concur in any such union. This is, in my opinion, the leading and most fundamental principle of all such associations as that of a congregation placing itself in connection with, and under the superintendence of, ecclesiastical superiors, such as a synod or presbytery of a body already formed-known as composed of certain classes, called by a certain name, and among whom certain standards, and perhaps still more certain, great fathers and lights of the truth, and only these, are revered, appealed to, and looked upon, as authoritative and conclusive.

The desire to keep separate-to keep up one sect apart from all others—as in itself a good way to maintain strictly certain peculiar opinions, especially if of a severe and stern characterto stand by a name as recalling for ever the struggle in which the sect had its origin, and fixing down, as it were, in stern, exclusive, and deeply graven characters, the aspect and tone of language, even as well as of devotional sentiment, which that name forces on every one-the desire to prevent the risk of defection in faith or in zeal for that rigorous exposition of doctrine, which the very name of such a sect as the Secession may be thought to guard against, by a sort of standing reproach to all who do not utter the very language of Erskine, Wilson, Fisher and Moncrieff, and the resolution to make no union with any body, but steadily to require all to join distinctly to the name of the Secession, in order to proclaim that, as it was formed in 1733, so it remains, and, on that footing, that all must enter it as members thereof, without separate pretensions, notions or origin;— such desire may be unreasonable-it may be to many unintelligible-it may appear idle caprice: But it is the first privilege of every congregation of such a body-it is their right-it is a desire springing from attachment to the causes which led to the formation of the church, and the constant commemoration of which, as the true (and, they may think, the most important) distinctions from all other churches, they may deem the best safeguard for the maintenance of the principles involved in these causes of secession. It seems to me utterly repugnant to every notion of such a sect to suppose that their congregations can be compelled to unite with any other church or sect whatever.

I avoid, of course, expressing any opinion of my own-I shall only say, that if I had belonged to the Secession Church, and cherished the opinions and principles on which it was formed, I believe that I would not have united with the Relief, so much do I understand the objection, even without examination of special reasons assigned-at least I most perfectly understand, as conscientiously operating on others, this general objection. But be the general objection in the opinion of others valid or fanciful, it is a change to which no congregation is bound to submit. For separation, then, when such union is to be entered into, no reasons, in my opinion, need be assigned: The right to refuse is absolute; and the notion that the majority is to forfeit their property, is, in my judgment, perfectly extravagant, and without the slightest support from any evidence that such is a condition of the trust. Indeed, I did not hear it maintained that obligation to unite with other sects was an original condition of this trust, held for a congregation of Seceders. It would be a very strange condition to incorporate with any trust for a congregation of old Seceders.

But even on the supposition that the majority must, in a question with the minority of the congregation, assign reasons in order to justify their refusal to go into this union, sufficient reasons have in this case been stated on which a majority of a congregation are well entitled to refuse to be parties to any such new cast of government or novelty in their church.

Here, I am afraid that it may appear as if I were expressing an opinion of my own as to the propriety or fitness of the union formed. I have no such intention. The question is not one on which a court of law can decide. The fact that such large

numbers of professing christians, guided by divines of great learning, talent and zeal, were able to lay aside supposed differences, and unite in one church, is itself sufficient vindication. But, then, although we are not to decide whether the reasons against the union are well founded, yet, far short of that, in such a question there may be fair grounds of objection, strongly founded in the feelings of the sect, upon its past history, on the previous differences between the two bodies, and on the mode in which it is proposed to get over these differences, and to exercise discipline in the proposed united body, which, operating on the minds and consciences of majorities in congregations, may well entitle them, members of a particular voluntary association, to say, We must remain as we are: We have no confidence in this proposed union: To us it seems irreconcileable with the tenets, spirit, and character of our sect, as we understand them, and as the divines we look up to expressed and recorded them: With their language you cannot reconcile this union; and we prefer their language to your more soft and modified statements as to points of difference: We call things by the names they used: They may be wrong-but into that we do not inquire: We associated for adherence to these stern old champions of the Secession, you may think, even in their errors and uncharitable view of others: But that was our principle of association, and it forbids us to call the Relief Church our united brethren.

In estimating the reasons assigned, it would have aided the Court much if the pursuers had distinctly announced what extent of power they held the other congregations and the synod, or what the minority of a congregation, had over the majority of a congregation who declined to enter into an union with another church, which to the synod appeared reasonable and expedient. I should have wished to see some precedent on such a peculiar and most delicate question as to the rights and interests of dissenting bodies. Binding such authority was not contended to be irrespective of the character, and objects and nature, of the proposed union; but what degree or extent of authority exists on such a matter, we were not told.

I lay aside, as altogether unworthy of observation, the plea, that this was not an union with another sect, but an extension of the Secession, by taking in a number of Relief congregations who chose to join. In such a case, no union, or basis of union, would have arisen for consideration. Such congregations would simply have been admitted into the Secession Church as members of the same, according to its declared opinions-sinking all opinions of their own. The whole negotiation, and the articles of union, prove that the two bodies were most jealous on the point of not sinking one into the other by simple admission into it; and that, as the Secession would not enter into the Relief, so neither would the Relief enter into the Secession. It was to be in the most marked manner a union of two separate churches, even stipulating for continuance of differences of opinion after union-a thing unexampled.

That the two sects were, in origin, actual presbyterial government, and professed tenets, on certain points quite separate churches, is matter of fact sufficiently proved. That the difference of tenets also was such that to many minds they might seem irreconcileably opposed, is also, I think, fully made out by the fact, that for long they did oppose each other in very strong terms-although, to many other minds, such difference may have appeared to be immaterial, or to have been removed, as the union actually proves to be the opinion of many. But to the opinions as expressed by their forefathers and leaders in the Secession Church, although it may seem to others that it is only to exaggerated expression of opinions that the parties cling, any congregation, or majority of the same, was well entitled to cling, and to maintain that such recorded opinions of those in whom alone they trusted, and to whom they aceeded as the expounders and defenders of their faith, proved the union to be against their principles. They are well entitled to say, We wish no modern or modified exposition now of the Secession: We rely wholly on the views of the founders and fathers of the Secession: They made the church: They fought the battle: We think with them: We view others as they did, through their uncompromising view of mattersand we feel ourselves resolutely opposed to union against their views: The very statement, that there has been no real difference between the Secession and the Relief, or that the grounds of difference have been removed, greatly alarms We think that statement forebodes an entire change in the character of our church, and is in itself a change of views: How would the divines, whose writings we adhere to and re

us:

vere, have been startled to be told, You were writing without sense or meaning: Your denunciations of error were senseless or groundless. Now, that the views expressed by the earlier Seceders respecting this younger offshoot from the Establishment are such as to imply, in their opinion, utter repugnance— substantial difference from, and much hostility of aspect to, the Secession-is beyond doubt; and to such views of these matters, which go to the original character and spirit of the Secession, the defenders are surely entitled to adhere. We wish to avoid now, they say, to reproduce in our own language any such condemnation of the views and of the origin of the Relief Church as our forefathers have recorded; but if you insist on this union, we tell you we think of that church as they thought-we adopt their language: If they have changed-if they now are true Seceders-their remedy is simple-their course plain-let them, as converted and penitent brethren, apply by individual congre gations to be admitted into the Secession. But such is not their object or position. They make no acknowledgment of error: They make no acknowledgment of the original principles of the Secession. Each is to be silent as to the origin of the other, or of itself.

Then, with these views, this congregation examine the terms of the proposed basis of union, which had been arranged by the joint committees, and sent round to all the members of the synod of the United Secession Church, before the extraordinary meeting in October 1846, and they find in it matters which, in their views, might naturally confirm them in the belief that the union was objectionable in principle, and really was a compromise on matters where they think there should be no compromise between two bodies truly opposed in material points. 1st, As to communion with ministers of other bodies: This cannot be said to be an immaterial matter to the members of a particular religious sect. It may be regarded as of importance in keeping up a standing testimony to the distinguishing tenets of their own sect-as preventing offence to members of congregations by having ministers of bodies differing from them, and as practically keeping their own ministers more steady to the style and tone of preaching which their people prefer. It may be viewed even in higher points of view, as many, if not all, of the old Secession fathers did view it. Now, on this point, what is to be the rule in the proposed united church, and how is discipline to be enforced? We are told, they say, that we may enter into any of the churches, and find it the same as one of our old Secession meeting-houses: Then, what is to be the rule of communion? None. The ministers of the Relief may follow their own freedom as before-may bring into their pulpits-which are to be pulpits of the church we are to belong to-minis ters who have no sort of sympathy or common sentiment with the Seceders; and if a matter of discipline on this matter occurs, if we complain, our rules are not to be enforcedthose who were Relief ministers may still act as they did before-and our ministers and elders must either withdraw, or sit silent in presbyteries and synod, or leave the whole matter to the members who were of the Relief, to be judged of by their separate rules prior to the union: Such is the scheme of government and discipline specially provided for by § 6: To this we object, as involving contradiction of discipline and praetice in the same church, and repugnant to our notions of the right government of a church. To such an objection, what answer can be made which is to warrant a court of law to say that the majority of a congregation so viewing the matter must nevertheless go into this union, or lose their heritable property? Then, in § 10, the congregation may say, we find that the Relief ministers and laity are not required to approve of the steps of our fathers in the Secession, and of course neither will any of the future members of this new united church. Indeed, on what footing future members join, whether as Secession or as Relief, or as members of a new third body, in which adherence to the Secession is purposely sunk, we cannot tell. To that we object as abandonment at once of the matters most dear to us, and most valued by us, as distinct from other christian bodies -as a renunciation of the old Secession-and as leaving us to be hereafter a body of dissenters, no one can tell of what charac. ter, since the church that is to join us are not called on to approve of the procedure of our fathers, and all future members enter on any footing they like, without distinguishing bond or characteristic of union, and our Secession views may never again be heard of. To this point I attach great importance. Let us see the terms of this article-(reads). Are Seceders not entitled to object to this? Are they not entitled to ask, what

are future members to be? The present Relief unite holding all their opinions, and are not called on to approve of the Secession: That is bad enough. But as to future members, what sect are they to join? What opinions are they to profess? How is the old Secession to be kept up? Surely these are questions which the defenders may well argue.

The question is not whether the court thinks the course objectionable, but whether such and many other objections are not of such a character as fully to justify, in regard to a measure which is to be matter of argument, any congregation in declaring that they must now refuse to go along with the church into this union. I shall only say, that to me it appears that the objections are such as cannot be overruled without direct encroachment on rights of conscience.

But the closing and decisive consideration is that which from the outset of the case must be kept steadily in view-which, in my own view of the law and of the facts, is of itself conclusive. This congregation-I call it the congregation, for the majority are of course in the first instance to be so regarded-this congregation have not changed one opinion or tenet of their forefathers of the Secession. They adhere to them all-they adhere to them as they have ever been taught and expounded in the supreme church. No departure from such tenets is alleged against them. Their orthodoxy is not impeached on any one point. They remain as they were. They desire so to remain. The only act averred against them is separation at this conjunc ture of union-i. e. refusal to go along with the union. But compulsory adherence to such a measure is no part of the contract of the trust of this property; and hence, when their principles, tenets, and practice, remain unaltered, there is no legal ground on which their property can be forfeited.

In the foregoing views of the case, I have not adverted to one defence which might yet remain to be disposed of; for though the defenders very properly have hitherto waived entering on it, and declared their anxiety not to do so until their other defences are repelled, it is stated; and if I am wrong in the grounds on which this opinion proceeds, must be investigated.

The defenders say, We do not admit the protest to be an act of separation of the character you the pursuers ascribe to it: We do not admit that we separated from the United Secession Church on account of its proceedings and errors as to matters of doctrine: But if the Court do view the separation as one proceeding, on alleged defection from the faith in the proceedings of the Secession Church regarding doctrinal errors, and if a majority of the congregation cannot withdraw from the jurisdiction of the Synod, and retain their property, without proving such defection on the part of the synod, we are ready to justify, on that ground, that separation-not only by saying, negatively, we hold the old opinion of the Secession on those important doctrines to which we allude, but the Secession Church has sanctioned grievous and most dangerous errors in one of the first articles of christian belief, according to our standards of faith. However unpleasant the examination of such alleged deviations of any particular church from its standards may be, we cannot refuse to enter on the inquiry as matter of fact, if the case is brought to that issue; for I quite agree with Lord Medwyn in the case of Galbraith v. Smith, that although the whole synod had concurred in deserting their original principles, yet we are bound to inquire into that, and maintain the property for the congregation adhering to these opinions. Neither do I admit at all the incompetency of judges for inquiring into, and comparing, the concurrence of any religious opinions with the standards adopted by any body of christians as their articles of belief, or for ascertaining departure from the same. We are as competent as other men to form a judgment on such points, and it may become our duty to do so. But, in the view I take of this case, we are not driven into this inquiry, and, I hope, may not be compelled to enter on it.

I have adverted to the fact, that against the congregation no step was taken, even in the synod, to cut them off from the Secession Church, and to announce forfeiture of property before the union took place-much less was there any declaration of forfeiture in a court of law before the union. When the matter, then, is raised, I apprehend the pursuers, who have joined the United Presbyterian Church formed by this union, may now, under this summons, be competently met by the congregation with the plea-"The case does not turn on the state of matters in October 1846: You now come forward as the adherents of a new judicatory formed by this union, and your own summons entitles us to meet you with the answer, We are no parties to

that union-we form the Secession Church as it existed before the union--and we are unchanged."

Perhaps this answer, though more technical, might be sufficient in itself for decision. But while I think it conclusive, I have thought it better to go over all the different views of the case, as others may not take the same view of this point. On the whole, the defenders must, in my judgment, be assoilzied.

Lord Medwyn absent.

The Court pronounced the following interlocutor:"Sustain the fourth, fifth, and sixth pleas in law stated on record in defence against the present action: Assoilzie the defenders from the conclusions of the summons, and decern: Find the defenders entitled to expenses; appoint an account thereof to be lodged; and in respect the auditor, having been formerly the agent for the defenders, has declined to audit the account, remit to John Russell, one of the principal clerks of Session, and clerk in this cause, to tax the said account when so lodged, and to report."

Lord Ordinary, Wood.-Act. Dean of Faculty (M'Neill), More, Graham Bell; W. A. G. and R. Ellis, W.S. Agents. Alt. Lord Advocate (Rutherfurd), Moncreiff, Inglis; Lockhart, Morton, Whitehead, and Greig, W.S. Agents.-R. Clerk.(F.H.)

SECOND DIVISION.*

No. 78-Lieut.-Col. JOHN GORDON of Cluny, Pursuer, v. SIR JAMES GRANT of Monymusk and others, Defenders-(Division of Commonty of Corrennie). Feudal-Bounding Charter Part and Pertinent-Commonty

Prescription The titles of a proprietor, containing a clause of part and pertinent, described his lands as bounded by the limits of the parish of Monymusk-Held that he could not acquire, by prescription, a right of common property in land lying beyond the limits of the parish.

Proof-Division of Commonty--Jus Tertii--In a division of com monty, M endeavoured to show as against C that certain lands claimed by C as his exclusive property were part of the commonty, and liable to division-Held that Mwas not entitled, for that purpose, to found upon acts of possession by other parties, who, after the process had been raised, disclaimed all right of common property in the lands in question, and admitted them to be the exclusive property of C.

Division of Commonty-Proof-Servitude-Process- In a process of division of commonty, certain lands were claimed by two proprietors in certain proportions, agreed on between them, as their exclusive property. A claim of common property in this land was also made by M-Held, 1. That his titles and the proof limited his right to a mere right of servitude. 2. That the lands fell, therefore, to be struck out of the division. 3. That his claim of servitude, and the proof applicable to it, could not receive effect in the process of division, but must be made the subject of a separate action of declarator. Proot-Competency-Witness-Purole-In a division of commonty, one of the claimants founded on depositions taken in a Justice of Peace Court process more than a 100 years previously-Held, that the process having originally been incompetently brought, the depositions taken in it were not legal evidence. Question, How far depositions taken in one process, may, after the death of the witnesses, be used as evidence in another? Division of Commonty- Title to Sue-Title to Exclude-In a division of commonly, a proprietor claimed to have certain portions of the land struck out of the division as his own exclusive property-Held that an opposing proprietor, the sole competitor as to these lands, and whose right was merely that of servitude, had no title to state objections against this exclusive claim.

Title Prescription-Possessory Judgment-Division of Commonty- In a division of commonly, part of the land averred to be common had been possessed by C as part of his private estate for the period of 30 years, and none of the claimants

* Omitted of its proper date-28th November 1849.