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Cite as: [1835] CA 13_1066

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SCOTTISH_Shaw_Court_of_Session

Page: 1066

Simpson

v.

Duke of Buccleuch
No. 331.

Court of Session

2d Division T.

July 7 1835

Lord Jeffrey.

John Simpson,     Suspender.— Rutherfurd— A. Murray, jun. Duke of Buccleuch and Others (Heritors of Sprouston.)— A. Dunlop— Ferrier.

Subject_Parish—School—Jurisdiction.—

1. Circumstances in which a particular branch of learning held to have been legally fixed as one of those, on which a schoolmaster elect was bound to submit to be examined.—2. Question, whether a presbytery can call upon a schoolmaster elect to be examined on branches of learning not required by the heritors and minister.

The office of schoolmaster of the parish of Sprouston having become vacant by the death of the incumbent in spring, 1833, intimation thereof was made from the pulpit on the 3d March, by order of the moderator of the presbytery of Kelso (the ministerial charge of the parish being also vacant at the time), and a meeting of heritors was called to be held on the 14th March, “to arrange matters previous to the election,” and another for the 17th April, in terms of the statute, to elect a successor. Notice of both meetings was given to the several heritors by circular letters. At the meeting on the 14th March, there attended Messrs Darling, Walker, and Brodie, the ordinary factors respectively for the Duchess-Dowager of Roxburghe (liferentrix, by way of locality, of a considerable extent of land in the parish), and for Sir John Scott Douglas, and Sir William Eliott, heritors; these factors being in use to attend and act for their constituents at all parochial meetings. No objection was taken at the meeting to the right of any of these parties to be present, but no written mandates were produced. The following resolution was adopted:—“The meeting resolve, that the new schoolmaster of this parish should be qualified to teach English, writing, arithmetic, and Latin; and that it is necessary to require certificates of character and previous success in teaching, from the several candidates. The meeting farther resolve, that an advertisement, in the above terms, shall be weekly inserted in the Kelso Mail, and the Edinburgh and Leith Advertiser; and that, in said advertisement, the candidates shall be required to lodge the certificates before mentioned, with Robert Darling, Esq. Kelso, on or before Thursday the 11th day of April next. The meeting farther resolve, that an examination of the several candidates shall take place on the 17th of April, previous to the election, and that one or two of the members of the presbytery be requested to attend upon that occasion.”

Advertisements in terms of this resolution were accordingly published; and, at the meeting for election on the 17th April, twenty-seven applications were laid before it. Sir William Eliott having been chosen preses, the following procedure took place, as set forth in the minutes:—“At this stage of the proceedings, Sir William Eliott objected to the vote of Mr Walker on behalf of Sir John James Scott Douglas, Bart., in respect that his mandate or authority proceeded from Lady Douglas, and not from Sir John, as the statute requires, and therefore protests, that any vote or votes that he may give are null and void. It was answered by Mr Walker, that Lady Scott Douglas having a full authority from her husband to manage his affairs in his absence, an authority from her he considers perfectly sufficient, and therefore protests against the refusal of his vote. Sir William also protests against the vote of Mr Darling, for the trustees of her Grace the Duchess Dowager of Roxburghe, and the Honourable John Tollemache, her husband, in respect that her Grace is a liferentrix, and not an heritor, as the statute requires; and therefore protests that any vote or votes that he may give shall be null and void. To which it was answered by Mr Darling—the trustees of the Duchess of Roxburghe being infeft in her Grace's locality lands in this parish, they are entitled to exercise all the rights of proprietors; and therefore protests against the refusal of his vote. Mr Darling protests against the vote of Sir William Eliott, upon the ground that the trustees of the late Honourable William Elliot of Wells have not denuded themselves of the lands of Hadden and Nottylees in his favour. To which Sir William Eliott stated, he will not condescend to make any reply. After much discussion respecting the mode of election, and the qualifications of the various candidates, Mr Elliot at last proposed Mr James Brown, teacher at Crailinghall, parish of Jedburgh, as a fit person to fill the office of parochial schoolmaster for this parish, and who was approved of by Mr Darling and Mr Walker. Sir William Eliott moved, that Mr John Simpson, teacher at Kelso, should be appointed schoolmaster, and claimed two votes as the only heritor qualified, as the schoolmasters' act prescribes, and also the casting vote as preses, all which he gives in favour of Mr John Simpson; and he protests, for the reasons already given, against the votes of Messrs Darling and Walker, as being null and void, and of no effect whatever. Messrs Elliot, Darling, and Walker, object to the claim of Sir William having two votes, in terms of the schoolmasters' act, and consequently, that he has no casting vote on this occasion, and they protest accordingly. The meeting therefore declared Mr Brown schoolmaster for this parish, and to enter upon his office at Whitsunday 1833, and to be entitled to all its emoluments upon being found by the Presbytery of Kelso qualified to teach English, writing, arithmetic, and Latin, which the meeting considered necessary qualifications for this parish, and they direct the clerk to furnish him with a copy of this minute. Sir William Eliott protests against the decision just come to in respect of the illegality of the votes of Messrs Darling and Walker, and protests that Mr John Simpson is duly elected schoolmaster of the parish of Sprouston, by a majority of legal votes; and declares the said Mr John Simpson schoolmaster accordingly, and to enter upon his office at Whitsunday, 1833, and to be entitled to all its emoluments, upon being found qualified by the Presbytery of Kelso to teach English, writing, and arithmetic, and direct the clerk to furnish him with a copy of this minute.”

At a subsequent meeting held on the 19th September following, and at which the minister, now inducted, and whole heritors, or parties formally authorized by them, were present, the following resolution was adopted, Sir William Eliott alone dissenting and protesting against its competency:—“That the resolution of the meeting of the 14th of March last, requiring a knowledge of the Latin language as one of the qualifications of candidates for the vacant parish school of Sprouston, being still a standing and valid resolution, to the effect of forming the rule by which the presbytery must conduct themselves in their examination of the schoolmaster elect; and never having been specially altered by any competent meeting, the presbytery shall be respectfully craved, in their examination and trial of the candidate elect, to give effect to the said resolution, and to make a knowledge of the Latin tongue an essential requisite before confirming any person in the office of schoolmaster of this parish; and as Mr Simpson does not possess this requisite, and, besides, was not duly elected by a majority of the heritors present, that the said venerable body shall take upon trial Mr James Brown, and upon his being found duly qualified, in terms of the resolution of 14th March last, confirm him in his said office.”

In the mean while both Simpson and Brown had presented to the presbytery extracts of the minute of election, each craving to be taken on trials as the schoolmaster elect. The presbytery, feeling some difficulty as to the course they should adopt, referred the matter for advice to the General Assembly, who, in May 1834, recommended them to be guided by the opinion of the procurator. The presbytery accordingly, on the 16th July thereafter, in conformity to an opinion given by the procurator, found that Simpson was the party duly elected, but that the branches on which he was required to be examined were “ Latin, English, writing, and arithmetic.” Brown entered no protest against this judgment, so far as regarded the question of election, but Simpson, on being called upon to be examined, “declined to be examined by the court on his knowledge of Latin.” The presbytery pronounced this deliverance:—“The presbytery thereupon unanimously found that Mr Simpson, having declined to be examined as to his knowledge of Latin, is not duly qualified for the office of parochial schoolmaster of Sprouston; and they appointed Mr Sym to make the legal intimations, with a view to the filling up of the vacancy.”

Simpson on this brought a suspension, on the ground that the presbytery had exceeded their powers in calling on him to stand an examination in Latin, that not being one of the branches required by the heritors in the minute of election. This suspension was resisted by the Duke of Buccleuch and the other heritors, who pleaded—

1. The suspender has no title to insist in this suspension, not having been elected schoolmaster. At the meeting for election Sir William Eliott alone voted for him. The other three parties present voted for Brown. The vote of the Duke of Buccleuch's factor is not disputed to have been valid, and if either of the other two were sustained, it would be sufficient to exclude Simpson. The objection to that of Sir John Scott Douglas's factor is that he had not a written mandate; but although the statute requires, that when an heritor votes by letter, it shall be under his own hand, it is not enacted that a factor, or other representative, shall have a written mandate, if he be truly authorized, as was the case here, Sir John having fully confirmed the acting of his factor. Then as to the Duchess of Roxburghe's factor, his vote is objected to simply on the ground that her grace is a liferentrix. But in the case of Toshach v. Smart, 1 it was decided that it is the liferenter, and not the fiar, who is entitled to vote in the election of a schoolmaster. The election, therefore, truly fell on Brown, and no reduction is necessary, because this appears ex facie of the minutes, and because the deliverance of the presbytery, finding Simpson duly elected, is of no civil effect as to this matter, which is not within their province.

2. Latin was required by the minister and heritors as one of the branches to be taught. If the legal majority of the election meeting were, as above contended for, this is indisputable. But, besides, the

_________________ Footnote _________________

1 July 18, 1771 (M. 13134).

statute does not require the determination as to this matter to be made at that or any special meeting, and it was competently fixed at the meeting of the 14th March; and it was again adhered to at the subsequent meeting of September,—to the authority of the parties attending which there is no objection. This of itself is conclusive, because the minister and heritors are entitled, any time before the examination of the schoolmaster elect, to point out the branches of learning to be required, if no injustice be done by requiring qualifications not held out to candidates as among those of which they must be possessed. Here, however, Latin was specially set forth in the advertisements as necessary to be taught, and all applicants must have understood that they would be examined therein.

3. Even supposing the heritors had not required Latin to be taught, the presbytery were themselves entitled to require a knowledge of it. The 43 Geo. III. leaves untouched the whole pre-existing jurisdiction of presbyteries, in so far as not expressly regulated or altered thereby. 1 Previous to the act, presbyteries had the sole and absolute power of determining what qualifications should be required, and what should he held unnecessary, and the only change effected by the act is to oblige them to take trial of the qualifications of the candidate in all the branches which the minister and heritors may think necessary, even though the presbytery might deem these superfluous. There is nothing in the act to preclude the presbytery from requiring other qualifications than the heritors prescribe, and consequently, in calling on the suspender to be examined in Latin (even assuming that not to have been required by the minister and heritors), they have not violated the statute, and, therefore, their judgment is not subject to review by any court, civil or ecclesiastical.

On the other hand, it was pleaded for Simpson—

1. The election was truly in his favour, Sir William Eliott being entitled to a casting vote as preses, and only one of the other votes being valid, inasmuch as Sir John Scott Douglas's factor had no mandate authorizing him to attend and act for Sir John, while the Duchess of Roxburghe was merely a liferentrix, and as such, in accordance with the principles adopted in the recent cases of Lady Anstruther, 2 as to the burden of maintaining the school, and of Rutherglen, 3 as to the analogous right of electing a minister, was not entitled to vote. At all events, the election having been sustained by the presbytery, it is incompetent to question it in this process, and without a reduction.

2. The parties attending the meeting of the 14th March had no mandates, and were not entitled to fix the branches to be taught. This,

_________________ Footnote _________________

1 Murray, Dec. 5, 1834 (ante, 128).

2 May 14, 1823 (ante, II. 306).

3 Brown v. Johnston, June 9, 1830 (ante, VIII. 899).

however, was validly done at the election meeting, excluding Latin, and it was incompetent for the subsequent meeting of September to rescind that resolution, and add Latin to the branches in which the schoolmaster elect should be examined.

3. The statute (§ 16) intrusts the minister and heritors alone with the power of fixing the branches necessary to be taught in their parish, and the presbytery cannot, without exceeding their powers, require the schoolmaster to be examined on any other. If, therefore, it be held, in the present case, that the heritors did not require Latin, then the presbytery have committed an excess of power, which it is competent for this Court to check.

The Lord Ordinary pronounced this interlocutor, adding the subjoined note: *—“Finds, lmo, That the power of judging of the qualifications of parochial schoolmasters belonged exclusively to the church courts, prior to the act 43 of Geo. III. c. 54, and that this power not being expressly taken away by the said act, does still remain with those courts, under the qualifications and modifications by the said act provided. Finds, 2do, That the true meaning and effect of the provisions as to this matter in the 16th clause of the said act, is merely to make it imperative on the presbytery to examine the presentee on all the branches of literature deemed necessary by the majority of the heritors and minister, even though the presbytery would not of themselves have gone into such examination; but not to restrain them from examining upon such other branches as they may think necessary for the due performance of the duties of the office. Finds, 3tio, That it is not required by the said act that the majority of the heritors and ministers shall fix on the branches of literature on which they require examination, at the meeting at which the schoolmaster is elected, or at any other particular meeting, but that their resolution to this effect may be taken at any meeting regularly called and intimated for the purpose, subsequent to the vacancy, and previous to the meeting of the presbytery, at which the examination is to proceed; and finds that the resolution to require an examination on the presentee's knowledge of Latin, which was adopted on the 14th of March, 1833, and announced in the advertisements subsequently issued for the information of intending candidates, and again adopted at another meeting held on the 19th September thereafter, was entitled to greater

_________________ Footnote _________________

* “The two first findings rest on the principle to which effect was given in the recent case of Murray, 5th December, 1834 (13 Shaw, 128), and are alone sufficient to support the judgment. The third finding is also separatim conclusive. The chargers maintained, as an additional plea, that the suspender was not dulyelected on the 17th April, and the Lord Ordinary is inclined to think that he was not; but, conceiving it to be very doubtful whether this could now be established, except by a process of reduction, he has not rested any thing on the questionable nature of that election.”

weight as evidence of the wish and opinion of the heritors, than the resolution to require no examination in Latin, adopted at the intermediate meeting of the 17th of April. Finds, 4to, That the presbytery, in requiring the presentee to submit to an examination as to his knowledge of Latin, and in finding that he was not qualified, in respect that he refused to submit to such examination, did not exceed their powers, or violate or disobey any of the provisions of the said act; and that this being the case, their determination is final, and not liable to be reviewed by this Court; and, therefore, repels the reasons of suspension, recalls the interdict, finds the letters and charge orderly proceeded, and decerns; finds the suspender liable in expenses,” &c.

Simpson reclaimed.

The Court, holding that Latin had been validly required by the heritors as one of the branches to be taught in the school, and, therefore, that it was not necessary specially to decide the general question of the power of the presbytery to try a schoolmaster elect on branches not required by the heritors generally—in respect that the presbytery have not exceeded their powers, adhered to the interlocutor of the Lord Ordinary, in so far as it repelled the reasons of suspension, recalled the interdict, and found the letters orderly proceeded, with expenses.

Solicitors: J. S. Darling, W.S.— Fercusson and Thomson, S.S.C.—Agents.

SS 13 SS 1066 1835


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