Scottish Court of Session Decisions

Subject_1 PART I.

JURISDICTION.

Sir Benjamin Dunbar and Others, Petitioners

Date: 29 June 1804
Case No. No. 11.

In building a church, the heritors have the right of superintending the operation; and when the presbytery act, they are held to act entirely for the heritors.

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The presbytery of Caithness having assessed the heritors in the sum of £1250. 15n. 11d. for rebuilding the church of Wick, the Reverend William Sutherland, the minister of the parish, became the undertaker of the building. For this purpose, he granted to the presbytery (7th May 1796) a bond along with cautioners, under a penalty of £250, for executing the work properly.

The price was payable by instalments, and accordingly was regularly paid by the heritors.

By the terms of the bond, the church was to be finished in the month of January 1798, according to a particular plan. When Mr. Sutherland applied to the presbytery (18th June 1799) to have the church inspected, the heritors contended, that besides not having finished the work in the time to which he had been restricted, he had not acquitted himself of the obligation, either in his observance of the plan, or in the execution of the work. This the heritors offered to verify, by the testimony of the tradesmen who had been employed.

The presbytery, however, declined to admit their testimony, but ordered an inspection by tradesmen selected by Mr. Sutherland, reserving to the heritors the power of objecting to their report.

After various proceedings, the presbytery discharged Mr. Sutherland (12th July 1799), and found the building sufficient, upon his performing some insignificant additional work, till which the bond was not to be delivered up.

In the mean time, Sir. Benjamin Dunbar, and the other heritors of the parish, brought an action against Mr. Sutherland and his cautioners, concluding, that they should be ordained to fulfil the contract they had undertaken, and deliver over the church finished, in a substantial manner, in terms of the plan, or to pay a certain sum in name of damages.

Against this action, Mr. Sutherland pleaded, That in the business of erecting the church, he was accountable only to the presbytery of Caithness: That at the hands of the presbytery he had already been in a great measure exonered of his engagements, and would be so completely, when the few repairs pointed out by them were finished.

The Lord Ordinary pronounced this interlocutor, (18th January 1804):

“In respect that the defender Mr. Sutherland was appointed by the presbytery of Wick to be undertaker for building the church in question, and that it was to the presbytery he and his cautioners granted bond for the due execution of the work; in respect farther, that by the said bond granted by him and his cautioners, it was expressly provided, that execution should pass at the instance of the presbytery and their moderator, and that it is not the heritors, but the presbytery, who can effectually discharge the said bond, and exoner the defenders of their obligation; and, lastly, in respect that the heritors, from time to time, while the work was going on, paid their several instalments for the expense of the building, without making any objections thereto as improperly or insufficiently executed; dismisses the present action, sustains the defences, assoilzies the defenders from the conclusions of the pursuers, libel, and decerns; finds expenses due, and allows an account thereof to be given in.”

The heritors reclaimed, and

Pleaded: In all cases where a burden is to be imposed upon the heritors of a parish for the execution of those works which are connected with the Ecclesiastical Establishment, the interference of the presbytery becomes necessary to legalize the assessment upon the heritors, and to make it exigible from those who have not given their consent to it. Thus far the presbytery is the guardian of the public interests, and their guardianship is exerted as well in the assessment as in seeing that the purpose for which it is made has been fulfilled. But if they should at any time neglect this, the Supreme Court has the power of controul, at the instance of the heritors who have the chief interest in it, as upon them the whole burden is imposed. When the contract is entered into with the presbytery, and the bond executed in their favour, they there are acting for all concerned,—for themselves as the guardians of the church, and for the heritors, by whose money the work is to be performed. If any thing has been done amiss in the execution of this trust, the heritors may then appear in their own persons, and vindicate their civil rights.

This was clearly the unanimous opinion of the Court: They therefore remitted the petition to the Lord Ordinary, to receiver a condescendence on the merits of case; and recommended to the heritors to bring an advocation of the proceedings of the presbytery, which, being conjoined with the other, the presbytery might become a party in the action against Mr. Sutherland.

Several of the Judges gave it as their opinion, that the presbytery, except from tolerance, have no jurisdiction whatever in the building of churches: The application in such a case should be made to the Judge-Ordinary. As to manses, they have the superintendence conferred upon them expressly by statute, subject, however, to review by the civil courts.

Lord Ordinary, Cullen. For petitioners, Thomson. Agent, Ken. Mackenzie, W. S. Clerk, Home. Fac. Coll. No. 170. p. 384