EVENING SEDERUNT.

The Assembly again met at seyen o'clock, and having been constituted, a report from the Business Committee was read. The Assembly then resumed

THE DAILLY CASE.

Mr RUSSELL inquired whether the other appellants would be allowed to reply instead of himself.

After a brief conversation, it was agreed to grant the request, on the footing that, Mr Russell declining to reply, the right next fell to the minority in the inferior courts, and that these gentlemen (Messrs Wallace and M'Gowan) should restrict themselves to the points on which they had appealed.

Mr WALLACE, the appellant member of the Presbytery of Ayr, after an explanation to the effect that he had been well acquainted with the parties connected with Mr Russell's congregation whose name appeared most frequently in the proceedings, that his sympathies were originally with them, and that he had been led to take his present position on the evidence before the Court, said, as to the 1st count in the libel, he considered that the sentence "during the period between the 1st of January 1848 years and the 1st May 1850 years," must mean from the beginning to the end of that period, though doubtless such was not the meaning the libellers meant to convey, nor what they attempted to prove; so that, but for Mr Russell's having acknowledged the fact, this part of the libel must have fallen to the ground. But this admission must be taken up in connection with the major proposition charging Mr Russell with breach of trust, which implied a concealed purpose of appropriating permanently that with which he had been entrusted, without any design of restoring it. Attempts had been made to fasten on Mr Russell a concealed motive; but when it was taken into view that he had frankly acknowledged having used the money, he (Mr Wallace) could not see how this count could be connected with the major proposition. There was undoubtedly an improper and unbecoming act, which he would not think of justifying, but it was neither a kind nor a degree of impropriety that amounted to a breach of trust. In the 2d count, Mr Russell was charged with having caused the interest of his debt to be added to the bill; but it was clear that this could not have been done without consent of the other parties interested, and there was no complaint from the parties having a pecuniary interest. It was to Mr Russell's credit, however, that he struggled manfully and vigorously with his difficulties, and, by the kindness of his congregation, he was enabled to clear his manse of debt. By a foolish buoyancy, he had led himself to too sanguine expectations of success. His exertions, however, were all of a sudden arrested by the suspicions of certain individuals. As to the 3d count, not only was there no proof of Mr Russell having taken the £10 of collection money, but there was a distinct, plain proof of his innocence, notwithstanding which, no compunction whatever had been expressed by the framer of the libel. The aggravations alleged had no relation to this count, though they might have been on the 1st or 2d. The 4th count in effect charged foul perjury, inferring, if not proven, not only deposition by the Church, but another sentence from another court. But neither had this been proven, and to show Mr Russell's diligence and faithfulness in the business of the Church, he (Mr Wallace) might refer to the Monthly Records of the Sus

tentation Fund, which showed that during the seven months before Mr Blair left the treasurership, the average amount was £2:14: 9. One month was occupied by Mr Russell in organising the work, during which £4: 11: 6 were collected; and during the next seven consecutive months the amount was £6: 5: 64. The duty was then in July given over to Mr Blair. On the first month succeeding, the collection was £4:3:6; and during the next three consecutive months the amounts were respectively £2, 15s, £2, 15s, and £2:6:6. There had been no doubt deep feeling against Mr Russell on the part of some parties; but the fact just mentioned, and the success of Mr Russell's exertions in connection with the Manse Scheme, showed that the feeling was not general amongst the body of the people; and it was impossible that his influence could have continued, had he been declared to be guilty of the forgery and breach of trust alleged against him. There was no proof that Mr Russell had been asked a word about the supplement from November 1847 till January 1850; and he (Mr Wallace) thought it a dangerous precedent to allow individuals to go back for two or three years, and for the first time challenge proof of such circumstances as had taken place. Such a course would be a reversal of the old principle, that charges made must be proved by the parties making them. It was quite conceivable that the supplement might have been agreed to in an easy off-hand way, which would account for its being forgot. Mr Wallace concluded a speech of two hours and a half, by arguing, that the great bulk of the charges might be attributed to the feelings and jealousies of those who were in the first instance the complainers, and subsequently the chief witnesses.

Mr GRANT of Ayr, who was then heard against the judgment of the Synod on the 5th count, commenced by saying, that invidious and irksome as was the position of appearing against a brother, and on the opposite side of the bar from the respected father of his Presbytery, he was nevertheless so deeply convinced that the interests of the great Head of the Church, the purity of the gospel ministry, and interests of a congregation under their charge were involved, that he had felt it his duty to prosecute the appeal. And, first, he had to beg that the Assembly would not imagine that any member of Presbytery would have been so foolish as to have rested his argument on such imaginary pleas as were put into their mouths by Mr Wallace, and then so valiantly knocked down. But as it was only the 5th count he had to deal with, he must abstain from that matter. The count referred to was found not proven to have taken place within the date specified, the line of argument being to open up a certain series of events in a certain period of time, during which the fact could not have taken place, and running them up till past January 1850, when the first complaint was laid on the table. But what was the history of this part of the case? The manse was built for Mr Chalmers while he was in America, by three or four individuals, with a view to his being settled in Dailly. He was, however, removed to London; and Mr Russell having entered it in August, without paying either interest or rent, the proprietors began to express a desire to be refunded, and, at Mr Russell's instance, a purchase of the manse was effected. A bill for the amount required to pay the price was procured from the bank, signed by Mr Russell and three other individuals, -Mr Russell promising to pay the interest. Now, Mr Russell was charged with applying the subscriptions he received for the purchase of the manse to his own use for the time, and failing to pay the interest. The bill, it would be seen, was drawn for £386, which showed that the differ

ence between this sum and the purchase-money, namely, £35, had already been paid. Now, when was the next payment made? With the exception of £150 received from the Manse Fund, there was no payment made till 13th June 1850, fully two years after the transaction. Meanwhile, however, the subscriptions were accumulating in his hands. Dissatisfaction naturally began to be expressed among the congregation at this circumstance; and in July 1849 he acknowledged to having up to that time £28 of subscriptions. The Deacons' Court was not satisfied with that balance, and accordingly they requested Mr Russell to state the names of the subscribers, and lay the subscription books before them. This was done in December, when he acknowledged £40; but still the Deacons' Court were not satisfied, and no wonder. The documents Mr Russell produced had no dates, and the books were only copies of the originals. Whether the deacons had good cause for their suspicions or not, he (Mr Grant) could not say; but the want of original documents was certainly unfortunate. Mr Grant was proceeding to animadvert on the appropriations of the money which Mr Russell had admitted, when

Mr DUNLOP requested him to confine himself to the special count on which he had appealed.

Mr GRANT proceeded to observe regarding the 5th count, charging the appellant with having stated that William Wilson had authorised him to obtain £4: 8: 8 as supplement, that the only point disputed was with regard to the date of the occurrence, which he maintained, by reference to the evidence, had been amply substantiated as contained in the libel.

Mr COWAN, one of the appellants, suggested that the case at that late hour (past 11 o'clock) should be adjourned; but on the motion of Dr Candlish, it was resolved to proceed with it.

Sir HENRY W. MONCREIFF was then heard on the part of the Synod. He said it was perfectly clear that, in reviewing the judgment of the Synod, the Assembly, disregarding the great amount of irrelevant matter which had been introduced in the course of the pleadings, must confine themselves strictly to what was contained in the record, and also utterly disregard everything connected with the questions in the evidence which had been refused by the Synod. If, of course, the House, in the exercise of its nobile officium, considered that these questions should have been put, they would arrest the case immediately; but otherwise they must throw the matter out of view altogether. The libel, he went on to observe, contained in all thirteen points of accusation. To these were six counts under the sixth charge, and there were five distinct charges, with three special aggravations. Of these the Presbytery found the whole proved, except part of the third count, the first charge of the sixth count, and part of the first special aggravation of that count. The Synod again differed from the Presbytery in three points only. First of all, the Synod found the fifth count not proven, and then they found the first charge of the sixth count proven. He might remark, on that point, that as Mr Russell by his appeal, brought the whole judgment of the Presbytery under review, they were bound, according to the proof, to reverse the decision of the inferior court, even when favourable to the accused. Then, thirdly, they differed from the Presbytery, inasmuch as they found the first special aggravation not proven. Now, it would be seen from the libel, that these charges, in one sense, all referred to one kind of sin,-they referred to a man's appropriating improperly to his own use that which did not belong to him, whether as respected money matters, or the sermons which were not his

own. The libel therefore consisted of a series of homogeneous charges as they were called, that is to say, in looking at it as a whole, it was not necessary they should have two distinct witnesses for each particular charge, provided that they had a great number of good witnesses, all proving a tendency to the commission of the same species of sin. Now, with respect to the first count, the Assembly would observe, that all they had to consider under it was simply a question of fact. The major proposition charged the accused with breach of trust, and the wrongful use of what was not his own. Now it was not competent for the other party at the bar to question whether the facts in evidence amounted really to breach of trust, because the connection between the major and minor propositions must be considered as already established; and there was no appeal on the relevancy. The charge in the minor proposition was that regarding the truth of which they had to inquire. Now, what was charged was this, that Mr Russell having had entrusted to him certain moneys, did apply the same to his own use. It would not do to say, "Oh, yes, I did apply some money to my own profit and use, but it was refunded, and is not breach of trust." That point was settled when the relevancy of the libel was sustained. In the evidence they found admissions by the accused, that he had used the money, with the only qualification, "for a time;" and the question came to be considered, whether these words, "for a time," affected the proof of the charge. Sir Henry then entered with considerable minuteness into the evidence relative to the bill transaction, showing that the apologetic explanation of the appellant, "for a time," in reality embraced a considerable period. He further remarked, in regard to this point, that it was no doubt true that they might find a minister, as well as any other person, keeping the money intrusted to him in certain circumstances, and under certain conditions, in his own hands" for a time." But then they must suppose him to be only acting as a banker for the parties to whom it belongs; and undoubtedly it would be considered a very irregular proceeding to assume such an office without the parties' consent. They must also be satisfied with the person's solvency, and have, besides, accurate accounts and carefully-kept documents. Therefore it was stated in the libel as an aggravation, that he had no reasonable prospect of being able to refund the sums he had appropriated. The question, therefore, came to be, had Mr Russell any such reasonable prospect? It would not do for them to be now told, that because Mr Russell, since this case had been instituted, had managed in some way to pay up the whole money, that that was a proof he had a reasonable prospect of being able to replace the money when he took it. The onus probandi of this plainly lay, in such a case as this, on the party who helped himself to the money. But the Synod did not rest the case on that ground. They maintained that Mr Russell had not any reasonable prospect of being able to pay back the money. And was it reasonable to suppose that Mr Russell could easily have paid up this money, when he did not, even after being challenged, do so? The fact that Mr Russell had no reasonable prospect of repaying the money alluded to was proved by his plea in the Synod, that it was urgent need that led him to appropriate the money. As to the second count, it was denied that Mr Russell came under any deliberate engagement to the congregation or office-bearers; but Mr Russell himself had distinctly admitted his having promised to pay the interest on the debt of the manse, though he failed to do so, or even to explain that he could not, but privately got it added to the bill. The aggravation alleged in the conclusion of the third count was important, in

H

respect that the only way in which Mr Russell could clear himself of the charge of appropriating the money alluded to in the first count was to show that he kept accounts showing the sums he had received and held himself accountable for. As to the fourth count, the minute granting the supplement was signed, like others in the book, merely by Mr Russell, and only two parties were stated to have been present, one of whom, James Glenn, declared "that he never sanctioned such a grant since breath was in his body;" and the other, James M'Connell, spoke to the same effect. The minute-book, though attested by the Presbytery, contained many blank leaves, into which anything might have been inserted even after attestation. The fifth count the Synod had not held proven, from their desire to mix up with their decision nothing in the slightest degree doubtful. As to the sixth

count

Mr DUNLOP asked whether the Synod held that they were entitled, on the appellant's own appeal, to decide a point against him which the Presbytery had decided in his favour?

Sir H. W. MONCREIFF said, The Synod had considered that the whole case came before it, and that they were entitled to consider it as a whole. Mr Russell's appeal was unqualified against the whole judgment of the Presbytery. It was quite clear that Mr Russell did not intend to appeal against the decision in his favour; but he did it, and the Synod were entitled to occupy the ground thus opened. Sir H. W. Moncreiff proceeded to show that the first charge of count sixth, referring to the undue use of sermons as Mr Russell's own, which were not his own, and which charge had been found not proven by the Presbytery, but found proven by the Synod implied sin, as did also the other charges in this count, which were of a similar character. In the case of the fourth charge, in part of the proof being the notes of a witness, there was a discrepancy, 2d Peter, 9th chapter, being written, instead of 1st Peter, 2d chapter and 9th verse; but Sir Henry held that this only confirmed the evidence, being an incidental mistake, and maintained that the charges in the libel were substantially proved.

Mr M'GOWAN spoke in reply.

The Assembly then adjourned at a quarter past 4 a.m. on Tuesday.

TUESDAY, MAY 25. 1852.

Address to Her Majesty-Classification of Overtures-Dailly Case: Speeches of Mr Dunlop, Sheriff Craufurd, Dr Candlish, Mr Mackay, Mr Gibson, Mr Reid, and Dr Cunningham-Report on Sabbath Observance-Report on Sustentation Fund: Speeches of Dr R. Buchanan, Lord Panmure, Dr Begg, Sir H. W. Moncreiff Dr Duff, Dr Cunningham, and Professor Miller.

The Assembly met to-day at eleven o'clock, the Moderator in the chair.

ADDRESS TO HER MAJESTY.

Dr DUFF, as convener of the Committee for preparing an address of congratulation to the Queen on the return of her birthday, read a draft of the address, which was carried by acclamation.

The Committee for arranging the business of the Assembly, made a report.

CLASSIFICATION OF OVERTURES.

Mr GRAY of Perth gave in an interim report from the Committee appointed to classify returns to overtures. Thirteen overtures had been sent

See Appendix.