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defendant had any, and what assets of Moses or Anne Hill's, in her hands unadministered: And that after several delays a trial was had at the bar of the Queen's Bench; and the verdict was that defendant had assets in of Moses Hill unadministered, to the [426] value of 400l. sterling: And thereupon the decree complained of was made, and the further decree on the master's report; which order and decree, respondent insisted was in every respect according to the rules of law and equity, just and reasonable, and that the appeal ought to be dismissed with exemplary costs. (Thomas Powis. Spencer Cowper.)

Die Veneris, 17 Februaris, 1709. After hearing council on this appeal, the Lords adjudged that the same should be dismissed, and the order and decree complained of affirmed. Lords Journ. vol. xix. p. 71.

The appellant made this case: That he was born near Edinburgh, and educated in that university, and, in 1694, duly ordained a Presbyter by the Lord Bishop of Ross; and went into Ireland, where his orders were allowed, and he admitted, first by the Bishop of Down, to a curacy in his diocess; and afterwards by the Primate to the curacy of Tynan, in Armagh, which he served twelve years with a clear reputation, as appeared by divers certificates; and in 1709, returned to his native country about his private affairs; and his rector of Tynan dying soon after, became destitute of a livelihod for himself, a wife and seven children; and at the desire of some of her Majesty's English servants at Edinburgh, exercised his ministerial function in a private house at Edinburgh, by reading the liturgy and preaching, as was lawful for him to do, always praying for the Queen, and the Princess Sophia: And that the Presbytery of Edinburgh, nevertheless, called him before them for presuming to exercise his function in their bounds, without their allowance; and notwithstanding his orders, certificates, and testimonials, of his good affection to her majesty's person and government the Presbytery, nevertheless, prohibited and discharged him from exercising the ministry there, grounding their prohibition upon his exercising the ministry within their bounds, and without their allowance, and introducing a form of worship contrary to the purity and uniformity of the worship of the church established there by law; and recommended it to the magistrates of Edinburgh to render their prohibition more effectual: And that thereupon the magistrates summoned appellant before them, requiring his obedience to that sentence, with threats of imprisonment in case of non compliance; but that appellant believing it to be his duty, and consistent with the laws of that kingdom, to exercise his function in the private manner he had done, continued his ministry as before; for which the magistrates, 15th September, [428] 1709, committed him prisoner to the common goal, there to remain until he should give security to desist from the exercise of the ministry within their bounds, or to remove himself thence: And that appellant, in November following, preferred a bill of suspension of that sentence to the Lords of the Counsel and Session, to which the magistrates put in their answer, and insisted upon a matter not contained in, but foreign to the sentence, viz. that appellant having received ordination from the exauctorated bishop of Ross, after the abolition of episcopacy in Scotland, was not a minister duly qualified, and therefore the Lords of the session refused to deliver him from the prison, where he lay under confinement above seven months: Which sentence and decree, appellant insisted were illegal and unjust; because, though Presbytery were the legal established church government in Scotland, yet there was there no law of conformity, which obliged the laity to be of their communion, nor any law which prohibited the ministers of the communion of the church of England to exercise their function, or the laity to join in worship with them in a private manner, or which gave the magistracy any jurisdiction to inflict penalties on such ministers or laity: And those acts of parliament whereon the sentences were pretended to be founded (and particularly the act against intrusion into churches, made