Scottish Court of Session Decisions

The late John M'Nab bequeathed funds which amounted, with certain interest, to £92,345, and which were directed by him to be applied “for the benefit of a charity, or school for the poor of the parish of Dollar and shire of Clackmannan.” The minister and elders of the parish of Dollar for the time being, were declared trustees and managers of the fund, which was declared to be appropriated “for ever” to the trust. Nothing was prescribed as to their powers of appointing or dismissing teachers. Under their management a large academy for the purposes of education was established at Dollar, for which extensive buildings, containing class-rooms, &c., were erected. Teachers were appointed not only for English, writing, and arithmetic, but also for the ancient and modern languages, and for mathematics. The minister of the parish, the Rev. Andrew Mylne, D.D., also was appointed by the trustees to the office of Principal of the institution with a salary. The salary of each teacher was fixed at £120 per annum, with an allowance of £35 for rent, where a free house was not given; and, although bound to teach part of the scholars gratuitously, as the founder had so destined his bequest, the teachers had a right to fees from the rest of the scholars. The appointments of teachers were chiefly made in 1818, 1819, and in 1821. The minutes of the trustees prior to 1821, containing the appointment of the several teachers, bore that they were respectively appointed during pleasure. In that year, Andrew Bell was appointed teacher of mathematics, and the minute of appointment bore that he was so appointed “upon the same terms and limitations as the other teachers.” In April, 1828, the trustees, being dissatisfied with the conduct of Bell, intimated to him that his services as a teacher should not be required after the ensuing Whitsunday, but directed his salary to be paid up to 1st October ensuing, and a half-year's house-rent also to be paid as from Whitsunday to Martinmas. They then proceeded to elect a new teacher of mathematics who entered on the duties of his office.

In 1836 Bell raised an action of damages against the Rev. Andrew Mylne and the other trustees of the Dollar Institution, alleging that they had unlawfully dismissed him from an employment which he held ad vitam aut culpam. The defenders pleaded that they had sufficient grounds for dismissing the pursuer, if they were obliged to go into the merits of the case; but they maintained separately that as they had only made the appointment during pleasure, they were entitled to recal it at pleasure, and were not bound to state any specific grounds for the recal.

Several special pleas were raised on both sides, but the question on which the cause ultimately turned, was, whether the appointment of a teacher such as the pursuer was contra bonos mores, as being qualified with the condition of being revocable at pleasure, and was to be held as resolving into an appointment ad vitam aut culpam.

The pursuer pleaded, that the Dollar Academy, considering its ample endowment, its permanency, and the scale on which it was established, was of the nature of a public institution. The education of youth was a matter of the highest public concern; it was of essential importance that the teacher should be in a position of independence, so as to have nothing to consult but the discharge of his duty; and this was necessary also in order to his having due authority and influence over his scholars. Accordingly, it had been held, that the appointment of a parochial schoolmaster, necessarily was an appointment ad vitam aut culpam, and that even if an individual schoolmaster attempted to make a stipulation contrary to this, and rendering him removable at pleasure, such stipulation would receive no effect in a court of law, because the condition which rendered the office precarious was held to be illegal and of no effect, ¹ being contrary to the public interest, and at common law, illegal. The same princple had been recognised in the analogous case of the appointment of a town-clerk. ² But as the Dollar academy was truly a public and permanent institution for education, and of a very important description, the same principle of the common law ought to govern all appointments of teachers there. This should be held the more readily as the trustees and managers were the minister and elders of the parish, the natural superintendents of public or parochial education. And, farther, as it was to be presumed that the founder of the institution had the common case of Scotland in view, in establishing the academy, it was only acting according to his presumed intention to hold that the power of appointing teachers, to be enjoyed by his trustees, was only the power of appointment ad vitam aut culpam.

The defenders answered that the Dollar academy was a private institution only, in which the trustees and managers derived their powers from the will of the founder. In that will, nothing existed to abridge their power of appointing teachers on such terms as they considered to be most expedient. They had thought it best to make the appointment only during pleasure, and the pursuer had accepted the appointment under that express condition. There was nothing in the contract of locatio operarum, as applied to the employment of a teacher of any branch of education, at least in a private institution, which made it illegal, or contra bonos mores, to appoint, or hire him, either for one season, or for a given number of seasons, or for life, or during pleasure. ³ In any previous cases where the question had been touched on, it had either occurred respecting public parochial schools, or it was affected with specialties, such as the existence of an express limitation on the power of dismissal without cause shown, or otherwise. But there were no decisions, or opinions, which countenanced the plea maintained by the pursuer. In particular, the case of a

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¹ Kempt (13136)—Magistrates of Montrose, Jan. 18, 1710 (13118)—Dunlop on Paroch. Law, 478—Adam, July 7, 1815 (F.C.)

² Simpson, June 17, 1824 (ante, II. 150; or 102, new ed.)

³ Mason, January 23, 1836 (ante, XIV., 343), and December 22, 1837 (ante, XV., 341)—Gibson, March 11, 1836 (ante, XIV., 714).

town-clerk was altogether different from an appointment of a teacher at a private institution.

The Lord Ordinary ordered cases, and made avizandum to the Court.