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United Kingdom House of Lords Decisions |
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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> John Cullen, and Others, ordained Elders and Heritors of the Parish of Cadder, and the Reverend James Young, Minister of Chryston v. Mark Sprot, Esq. of Garnkirk, and other Heritors and Elders of the Parish, and the Reverend John Park, assistant Minister and successor thereof [1842] UKHL 1_Bell_595 (5 August 1842) URL: http://www.bailii.org/uk/cases/UKHL/1842/1_Bell_595.html Cite as: [1842] UKHL 1_Bell_595 |
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Page: 595↓
(1842) 1 Bell 595
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND. 1842.
No. 26
[Heard,
Subject_Patronage. —
Held, that a deed by the patrons of a parish, the heritors and elders of which had paid to the patrons the 600 merks prescribed by the act 1690, without having received the renunciation prescribed by that act, executed subsequent to the 10th Anne, cap. 12, and conveying to the heritors and kirk-session the right of presenting a minister, conveyed the ordinary right of patronage as restored by the 10th of Anne, and did neither complete nor confer the right of popular election intended by the act 1690.
Subject_Ibid. —
Held, that a right of patronage vested in the heritors and kirk-session of a parish is to be exercised by deed of presentation, not by vote at public meeting.
Prior to the year 1690, the patronage of the parish of Cadder was vested in the College of Glasgow.
By the statute 1690, cap. 23, patronage was abolished, and it was enacted, “to the effect the calling and entering ministers in all time coming may be orderly and regularly performed, their Majesties, with consent of the Estates of Parliament, do statute and declare, That in case of the vacancy of any particular church, and for supplying the same with a minister, the heritors of the said paroch (being protestants,) and the elders, are to name and propose the person to the whole congregation, to be either approven or disapproven by them; and if they
Page: 596↓
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On the 17th May, 1696, the heritors and liferenters of the parish of Cadder paid to the University of Glasgow 600 merks for the purchase of the patronage of the parish, under the terms of the act. No vacancy, however, occurred in the benefice until the year 1731.
In 1712, the 10th of Anne, cap. 12, upon a recital of the inconveniences of the mode of presentation established by the act 1690, and that it had likewise “been a great hardship upon the patrons whose predecessors had founded and endowed those churches, and who have not received payment and satisfaction for their right of patronage from the aforesaid heritors or liferenters of the respective parishes, nor have granted renunciations of their said rights on that account,” repealed the act 1690, and declared that the right of patronage should be exercised as it had been prior to the passing of that act, “provided always, that in case any patron or patrons have accepted of and received any sum or sums of money from the heritors or liferenters of any parish, or from the magistrates and town-council of any burgh, in satisfaction of their right of presentation, and have discharged or renounced the same under their hand, that nothing herein shall be construed to restore such patron or patrons to their right of presentation, any thing in this present act to the contrary notwithstanding.”
On the 30th of December, 1725, the Principal and Professors of the University executed a deed, which, after reciting the provisions
Page: 598↓
“Lykeas the said university being patron of the paroche of Calder, the heritors and liferenters of the said paroche did some time ago, and before the British act of Parliament restoring patronages, make payment to the Principall and Professors of the said university for the time, of the foresaid soume of 600 merks money, as appears by the books and accompts of the university, for the years 1695 and 1696, for granting the right underwritten, which we are now willing to do : Therefore witt ye us, the said Principall and Professors of the said university, patron of the said paroch of Calder, with consent foresaid, to have renounced, transferred, disponed and overgiven, as we do hereby, with and under the reservation underwritten, renounce, transfer, dispone, and overgive, to and in favours of Robert Lord Blantyre,” [here followed a great variety of names,] “and other heritors of the said paroch of Calder, if any be, conform to their respective interests and heritadges y r in, and their successors whatsoever in the saids lands; and the kirk-session of the said paroch, now, and in all time coming, the foresaid right of presentation of a minister to the said paroch of Calder, with power to them, upon the first vacancy of the said paroch, and in all time y rafter, to present ministers thereto, and to do every other thing y ranent, as fully and amply in all respects, as the said university could have done, of before, or in time coming, if these presents had not been granted. Whereat wee oblidge us and our successors to abide firm and stable, but reclamation, and to warrand this right from the facts and deeds of us and our successors only, done, or to be done in prejudice hereof: Reserving alwise to us, notwithstanding hereof, all right and title that formerly belonged to us as patron, except the right of presentation of a minister to the said paroch allenarly.”
The deed of 1725 fell aside, and was not discovered until the
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The practice of the parish in regard to the exercise of the right of patronage vested in it by the deed of 1725, was not precisely admitted, but was said to have been to hold a meeting of the heritors and kirk-session, at which the votes were taken for the respective candidates, and afterwards to have a formal deed of presentation prepared and sent round for execution. This deed was then presented to the Presbytery, who thereupon moderated in the call. Whether the votes at the meeting, or the signatures to the deed, had been held to express the approval or disapproval of the congregation required by the act 1690—and whether the deed was in use to be taken round to the whole heritors and liferenters, or only to a limited number—and if so, to what number—did not appear.
In the year 1834, the General Assembly separated Chryston, a part of the parish of Cadder, from the rest of the parish, and erected it quoad sacra into a separate parish; the churches of the two parishes being seven miles distant from each other.
Early in the year 1836, Lockerby, the minister of Cadder, agreed to resign his charge, and that steps should be taken to appoint an assistant and successor to him. Various preparatory meetings of the heritors and kirk-session were held with this view. At a general meeting on the 17th March, 1836, it was resolved that all parties claiming to vote should be required by advertisement to lodge their claims and titles in the hands of the clerk to the heritors; this was accordingly done, and thirty-five persons complied with the advertisement. At another general meeting held on the 19th May, 1836, it was resolved, “that this meeting proceed to elect an assistant and successor to Mr Lockerby on the 4th of August next, being the first Thursday of that month, and that three weeks previous notice be given
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The meeting on the 4th of August was accordingly held. The title of the minutes of the meeting bore that it had been called “for the purpose of electing an assistant and successor to the Reverend Thomas Lockerby.” After enumerating the persons present, the minutes bore, that a motion was made for the appointment of a preses and clerk, and that “before the motion was put, William Brown protested for himself, his mandants, and all who should adhere to him, that the entry of names in the sederunt, and the reception of votes at this meeting, should not infer any recognition of the title of such parties to vote in the election.”
After the names of the persons present had been read, Mr Brown again protested in these terms:—
“I protest that feuars not subject to, and not paying any of the public or parish burdens, have no right to vote at the present meeting; that leaseholders and trustees for others have no right; that liferenters and fiars have no right to vote on the same subject; that persons claiming the character of elders are not entitled to be enrolled or to vote, unless those who have been duly admitted, and who continue to act as elders of the proper kirk-session of Cadder parish, and whose admission is recorded in the books
Page: 601↓
of the kirk-session, and of which record evidence is produced; that no elder is entitled to vote by proxy; and that no mandatary of such elder can vote legally,—and that any vote given by him is null and void ; that no heritor whose title is not feudally completed, or who holds merely a personal right to vote; and that no heritor is entitled to have more than one vote; and that all persons entered on the roll who do not possess the character of heritors or elders of the parish of Cadder, should be struck off the roll, and should not be allowed to vote at the present meeting; and that all votes given by any of these persons comprehended in any of the classes of objections above set down, should be void and null, and not counted; and farther, I protest for redress and for remedy at law, on all and sundry the premises.”
“Mr Campbell of Bedlay now moved, that the patrons of the parish should elect the Rev. Mr John Park, preacher of the gospel in Glasgow, assistant and successor to the Rev. Mr Lockerby, which motion was seconded by Mr John Carss.
The Rev. Mr Bogle now moved that the Rev. James Young, Master of Arts, minister of Chryston chapel, should be so elected assistant and successor, and the motion was seconded by the Rev. James Graham Campbell.”
The minutes then bore that the appellant, Young, and the respondent, Park, were severally proposed as candidates, no others appearing, and that the votes having been taken and counted, there were fifty-four for Young, and fifty for Park. The minutes continued in these terms:—
“Hereupon Mr Brown protested for his constituents, and those who might adhere to him, that on the vote being declared, after deduction of the false, fictitious, and incompetent votes given for Mr Young, he was in a great minority, and that Mr Park was duly elected by a majority of the true and qualified patrons of the parish, and protested for redress and
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Thereafter, Mr Macdonald, on behalf of his constituents, and all who should adhere to them, protested against all and sundry votes given for Mr Park, and for a scrutiny of the votes, and protested that Mr Young is duly elected by a legal majority of votes, and took instruments in the clerk's hands. The voters for Mr Young nominated and appointed the said Charles Alexander King, the Reverend John Bogle, the said James Drew, writer, Glasgow, and the said John Macdonald, junior, writer, Glasgow, as a committee to carry Mr Young's election into effect, with power to make and complete the presentation in his favour, and the requisite application to the Presbytery therewith, and for his induction; any two of the said committee to be a quorum.”
“On the other hand, the voters for Mr Park appoint Mr Campbell, Bedlay, Mr Sprot, Garnkirk, Mr Anderson for Mr Lamont of Robroystone, Mr Thoms for Mr Stirling of Cadder, Mr Campbell, session-clerk, and Mr Scott of Dry-field, elder, a committee, with power to carry Mr Park's election into effect; to procure the presentation in his favour completed and laid before the Presbytery, and to attend to Mr Park's induction, any three of the said committee a quorum, and Mr Campbell convener.”
After the meeting Young and Park respectively procured deeds of presentation to be prepared and carried round the parish for signature by the heritors and kirk-session. The deed in favour of Young was subscribed by fifty-three persons, by themselves or their agents, and that in favour of Park by sixty-seven persons in the same manner; seventeen of the latter persons had not been present at the meeting of 4th August. Neither deed
Page: 603↓
On the 7th of September, both of the deeds were lodged with the Presbytery of the district, together with an extract of the minutes of the meeting, which was produced by Young. The Presbytery delayed moderating in the call until the 5th of the following October, that the parties might have an opportunity of ascertaining the validity of the deeds in a court of law. No such proceeding having been adopted, the Presbytery, on the 5th of October, sustained the presentation in favour of Park, and moderated in a call to him, which was signed by many of the parishioners, without a dissent tendered, and ultimately the Presbytery ordained him minister of the parish. In the meanwhile Young appealed to the Synod in regard to the sustaining of Park's presentation, and ultimately to the General Assembly, which, on the 30th of May, 1837, affirmed the judgment of the Presbytery.
In the month of February, 1837, while the proceedings in the Church Courts were still in dependence, Cullen, the appellant, and other parties, styling themselves elders and heritors of the parish, brought an action against Sprot and others, which, after setting forth the proceedings which have been detailed, and specifying objections to the votes given for Park, subsumed, “Notwithstanding of all which the defenders are illegally and unwarrantably proceeding to carry through the ordination and induction of the said Reverend John Park as assistant and successor to the said Reverend Thomas Lockerby, the minister of the said parish of Cadder, in violation of the said election, so made by the majority of the said meeting of heritors
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The pleas in law by the pursuers in support of their action were:—
“1. The right of patronage or presentation in the parish of Cadder is to be held a right of patronage or presentation
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acquired by the heritors and elders under the act 1690, cap. 23, and is so to be regulated and dealt with in the present question. 2. According to law and usage the election of a minister under a right of presentation acquired by virtue of the statue 1690, is to be made by the majority of voices at a meeting of heritors and elders duly called, and in the present case, the election is to be determined according to the majority of voices at the meeting of 4th August 1836.
3. The pursuer Mr Young, having the majority of legal and valid votes at that meeting, is the duly presented assistant and successor to the parish of Cadder; and the defender Mr Park, having the minority of legal and valid votes at this meeting, has no legal title to the office.
4. The defender Mr Park is not entitled to found on the deed of presentation got up on his behalf subsequently to the meeting of 4th August, as varying or controlling the election at that meeting. At any rate, even that presentation itsel does not afford him sufficient grounds for claiming a majority of legal votes.
5. The proceedings in the church courts taken on behalf of the defender Mr Park, and in opposition to the distinctly intimated claim of the pursuer Mr Young, cannot affect the pursuer's rights, at all events, cannot affect his civil rights to the benefice.
6. There is no good ground for impugning the right of the pursuer Mr Young on the ground of any want of qualification to government on the part of those presenting or voting for him. In any event, this is a plea which it is jus tertii to the defenders to state, as, if well founded, it would not operate to confirm their own presentation, but to create a right in the Crown.
7. In any event whatever, the presentation to Mr Park could not be sustained, not being subscribed by an actual
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majority of the whole persons within the parish entitled to join in the presentation, and the pursuers would be entitled to have another meeting appointed for election, or other means taken for ascertaining the sense of the true majority; and at all events, in the meanwhile, are entitled to object to the presentation, as not being a presentation by a legal quorum of the patrons.”
On the other hand, the pleas in law for the defenders were:—
“1. Assuming that the right of the heritors and elders of the parish is to be held as acquired under, and to be regulated by, the act 1690, cap. 23, and that the election is to be determined according to the number of legal and qualified votes given at the meeting of 4th August, 1836, the defender, Mr Park, having been validly voted for by a great majority of those legally entitled and qualified to vote thereat, is the lawfully elected assistant and successor to the parish of Cadder, while Mr Young, not having been validly voted for by a majority of those entitled and qualified to vote, has no title to the office.
2. The right of the competing parties falls to be determined by the presentations lodged for them respectively with the Presbytery, and while that in favour of Mr Young is invalid and ineffectual, proceeding from parties not entitled nor qualified to grant the same, that in favour of Mr Park is valid and effectual.”
On the 11th of June, 1840, the Lord Ordinary ( Cockburn) pronounced an interlocutor containing specific findings, embracing the several objections which had been taken to the votes on either side, but which it is not necessary farther to notice, because of the course which was taken on the hearing of the appeal. That interlocutor, and a note which was subjoined to it, so far as regarded the points argued at the hearing of the appeal, was in these terms:—
“The Lord Ordinary having heard parties, and considered the process, Finds, 1 st, That the
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appointment to the office in dispute did not take place as an election under the act 1690, chap. 23, but as a presentation under the 10th of Queen Anne, chap. 12, and the relative deed by the College of Glasgow, of date the 30th December, 1726: Finds, 2 d, That therefore it is only the names in the two presentations that are to be taken into view in settling this competition. Reserves consideration of all other points in the cause, and of all questions of expenses, and appoints the cause to be enrolled, in order that the parties may state how they wish to proceed towards the application of these findings.”
“ Note.— First, The first thing to be settled is, whether the appointment is to be viewed as an election under the act 1690, c. 23, or as a presentation under the act of Queen Anne in 1711, restoring patronage ? The Lord Ordinary thinks it was a presentation. The facts are, that while the act 1690 was in force, the parishioners wished to buy, and the patron to sell, the patronage; and, accordingly, an agreement was concluded, and the price paid. The purchasers were only required by the statute to pay, “upon the said patron his granting a formal and sufficient renunciation of the said right of presentation;” but in this case they did, in point of fact, pay without obtaining any renunciation, though no doubt relying upon it. While matters stood in this state, the act of 1711, restoring patronage, passed. It declares that the way of calling ministers under the statute of 1690 had proved publicly inconvenient, and that there were cases where the price had neither been paid, nor renunciations been granted. It therefore, on public grounds, restores patronage to the patrons, with one single exception. This exception is, that the act is not to take effect in any case where the patrons have “accepted of, and received any sum or sums of money from the heritors, &c. in satisfaction of their right of patronage, and have discharged and renounced the same under their hands.” The patron here had not renounced, but having got the price, and being aware, therefore, that it was his duty to do what he could to make the corresponding return, he, (College of Glasgow,) in 1726,
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It appears to the Lord Ordinary, that in these circumstances the pursuers must be viewed as patrons. The arrangement by which they meant to acquire the right of naming and proposing the minister to the congregation, under the act 1690, had not been carried into full effect, when the act of 1711 restored patronage in favour of all patrons who had not excluded themselves by having formally renounced their rights. Their reception of the price is not made sufficient. On the contrary, as the act 1690 was abrogated on grounds of public expediency, its operation was made to reach the case of all patronages not actually renounced. And this implied no pecuniary injury to the incautious payers, because they had a right of repetition. They did not seek repetition here, but claimed fulfilment, in the only form then possible, of its contract from the College, which the College honestly acceded to. But it is very material to observe how this was done. It was not done by a mere renunciation by the patron of his right, which is what is required by 1690, and a consequent merging of that right in the people. Both parties seem to have felt that after 1711 this would not do; and accordingly the College grants, and the heritors take, a disposition of the patronage, and in so far as this conveyance is to the kirk-session, instead of the elders, it is not even in favour of the class that was entitled by 1690 to acquire.
Acting under this deed the parties are patrons, and must be dealt with as such.
Second, If this be their legal position, it is clear that it is only the names on the presentation that are to be looked to, and not the votes at any meeting. Brown, 9th June, 1830.”
The appellants reclaimed against this interlocutor, and on the 17th November, 1840, the Court ( First Division) altered it in these terms:—
“The Lords having advised this reclaiming note, and heard counsel for the parties; Recal, hoc statu, the findings
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of the interlocutor complained of: Find that every vacancy in the parish is to be supplied, not by election under the act 1690, cap. 23, but in exercise of the right of patronage conveyed to the heritors and kirk-session by the deed of 1725, reserving consideration of the effect of the proceedings referred to in the record; and farther, reserving all questions of expenses, and remit to the Lord Ordinary to hear parties farther, and do as he shall see just.”
On the 9th of December, 1840, the Lord Ordinary pronounced following interlocutor, adding the subjoined note :—
“The Lord Ordinary having heard parties under the remit from the Court, and considered the record—Sustains the defences, assoilzies the defenders, and decerns: Finds the defenders entitled to expenses, subject to modification; appoints an account thereof to be given in, and when lodged, remits to the auditor to tax, and to report.”
“ Note.—The interlocutor of the Court fixes that this is to be considered as a case of patronage, and not as an election under the act 1690, chap. 23. The pursuers having thus lost their principal point, maintain that it was at least agreed or understood that the person to be presented was to be determined by the votes at the meeting of 4th August, 1836, and that not only the minority at that meeting, but even those who were absent, if not to be held as concurring in, are at least barred from objecting to, the result there come to.
Now, 1 st, The Lord Ordinary thinks that this view does not arise out of the record. It implies that the parties knew that they were obliged to exercise a right of patronage, and that they resolved to do so, by first collecting the general sense of the patrons. But the averment of their condescendence (Art. 4.) is, that they held that they were not acting as patrons, but as popular electors, under the act 1690; and their whole pleas are constructed in reference to this fact. There is no part of the record that suits the view now taken. 2 d, The Lord Ordinary sees no evidence whatever of any such
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3 d, At any rate, this alleged understanding could only bind those who were present. It is said that the whole body of the electors, including even the absent, were bound by the usage of the parish. The fact as to the usage is denied. But at any rate, it is inconsistent with the pursuer's own part of the record, where the averment is, that all the vacancies have been filled up by elections: which excludes the idea that the parties held their rights as patrons to be controlled by the previous resolutions of the electors. The denial is almost warranted by the single and admitted fact, that the deed of 1726 was only discovered in 1793, since which there have only been one or two vacancies prior to the present one.
Besides, even though it were to be assumed that the matter lay solely between the two parties present at the meeting, and that both had understood that the vote there taken was to be final, the Lord Ordinary would not hold that, after it was discovered that they were wrong in their idea of their situation, but the means of correcting their error was open to each, either was prevented from doing so. Six heritors believe that they are popular electors under the act 1690, c. 23; they therefore meet and elect a minister by a vote. It is then ascertained that they were not electors under that act, but patrons under the act of 1711. On this, some of them choose to try the experiment of presenting under the statute, while some do not. Can it be held that the first proceeding forms a personal bar against the adoption of the second? The case of Rutherglen (Brown, 9th June, 1830) is the best answer to this question. That case was, in all its circumstances, fully stronger for the pursuer's plea than this one is. Yet the Court, disregarding all
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But really all this is superseded by what followed.
Because the pursuers (rather inconsistently with their statement in the record, that they were acting under 1690) were aware that a deed of presentation was necessary; and the minute bears that they appointed a committee “to make and complete the presentation in his (Mr Young's) favour.” Accordingly, a deed of this description was lodged with the Presbytery, and it is solely by giving effect to this ‘corroborative deed of presentation,’ (as it is termed in the summons,) that the pursuers can succeed in this action. But of the fifty-three or fifty-four persons who sign this deed, not one had previously qualified by taking the oath to government. They took the oath before one justice, whereas the statute requires two or more, and under the express penalty of nullity. However indulgent Courts may have been as to the time of taking the oath, it is idle to talk of liberality of construction in reference to the case of a total failure to take them. The presentation by the defenders is subscribed by about sixty-seven qualified persons.
Of these sixty-seven seventeen were not at the meeting of the 4th of August; and it is a possible case, that though taking a deep interest in this matter, they might reasonably stay away, because there had been seven candidates proposed and heard preach, and they may have been pleased with any of them. But Mr Young was started at that meeting for the first time; so that they, finding a new man proposed, might very naturally exercise their right of patronage, independently of that meeting altogether. The Lord Ordinary is quite clear that they at least are not bound by what the meeting did. Now, holding that those present are bound, and deducting the whole minority of fifty, there are still seventeen qualified names to the one presentation, and none to the other.
Besides, the question cannot be considered solely as between the two parties of patrons. The presentee was no member of the meeting, and can his rights under his unreduced presentation be taken away by such disputes among a class of the patrons? They may have broken their bargains with each other, but what is this
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It is also said, that he was a party to the arrangement that the meeting should decide who should be presentee. This fact is nowhere properly set forth in the record. But at any rate, there is no averment that, after what the meeting did proved abortive, he could never accept a presentation from the only seventeen free patrons.”
On the 17th February, 1841, the Court adhered in these terms,—“The Lords having advised the reclaiming note for John Cullen and others, pursuers, and heard counsel for the parties; Adhere to the interlocutor reclaimed against, and refuse the desire of the reclaiming note: Find additional expenses due, and remit to the auditor to tax the account when lodged, and to report.”
The appeal was taken against these several interlocutors of the Lord Ordinary and the Court.
Mr Solicitor General, and Mr Hope, for the appellants.—Immediately on payment of the 600 merks by the heritors and elders, to the university of Glasgow, under the terms of the act 1690, the right of election vested in the heritors and elders by the statute; all that was then necessary to complete their title was the formal conveyance; accordingly the deed of 1725, executed by the University, completed the title of the heritors and elders under the act 1690. That act gave the right whether a renunciation had been executed or not. No doubt, the act of the 10th of Anne restored the right to the patrons, except where the money specified by the act 1690 had been paid in satisfaction of the right, and had been discharged under hand, and thus in terms omitted to provide for the case of the money
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But at all events, the act of Anne offered no impediment to parties, who had received the price, completing the purchase by executing the necessary discharge and renunciation, if minded so to do, although it perhaps gave them the power of refusing. Accordingly the University did execute the deed of 1725, and whatever might have been the rights of the parties prior to its execution, subsequent to it, they were brought within the exception in the act of Anne. That act does not require to be read, as applicable only to the circumstances as they existed at the date of its passing, but may be read as applicable to the circumstances which now exist, or were brought about by the execution of the deed of 1725. According to these the 600 merks had been paid, and the right renounced and discharged within the literal terms of the exception in the act of Queen Anne. There was no consideration for the deed of 1725 but the payment of the 600 merks; it was no evidence of a new contract for the sale of the patronage, but a fulfilment of the previous contract.
[
In either view, then, the right of presentation was vested in the heritors and elders under the act 1690, by the payment of the 600 merks, and actual purchase, without the evidence of a formal renunciation, or by that, coupled with the subsequent execution of the deed of 1725, and fell to be exercised by them under the terms of that statute.
This view is confirmed by the practice in the parish, which
Page: 615↓
[
We submit that the deed was to give effect to the act 1690, and that the case, by its circumstances, was excepted out of the act of Anne. The intention of that statute was, that after the purchase money paid, and deed executed, the party should be deprived of the right of patronage, but it was not necessary that the deed should have been executed, it was sufficient if executed after the date of the statute.
[
We submit it is in exactly the same terms. It is not a disposition, as supposed by the Lord Ordinary; it “renounces, transfers, and dispones.”
[
Mere reference to its existence.
[
Page: 616↓
Perhaps not, if nothing had been done previously, but the deed here was a completion of what had been commenced previously to the act of Anne.
[
The practice in the parish has been to call a public meeting of the heritors and elders. The person chosen by this meeting was presented to the congregation, who thereafter either gave him a call, or stated objections to the presbytery, to whom the minutes of the meeting had previously been reported, sometimes accompanied by a pro forma deed of presentation referring to the minutes, and sometimes without any deed at all. The presbytery then appointed a day for moderating in the call, and on that day the approval or disapproval of the congregation was taken.
[
There is no distinct evidence of the practice on former occasions.
[
But if the act 1690 does not regulate, still after the arrangement between the parties, which they were competent to make, that the election should be at a meeting, it could never be competent for the respondents, having ascertained the sense of the meeting, to go behind the backs of the appellants, round the parish, and obtain signatures to a deed to supersede the vote of
Page: 617↓
Even as to the deed, supposing the case to be one of proper patronage, the respondents are in no better situation; it is true there are more signatures to their deed than to that of the appellants, but there is no dispute that these signatures are not of a majority of the voters. If the election is to be by meeting, duly published, it matters not what number are present, the whole voters might be present if they would. But if the election is to be by deed, neither of the parties can select what number of the voters he may choose to exercise the right, by omitting to apply to the others. The deed, therefore, to be effectual, must have the signature of a majority of the entire voters. There is no evidence that the voters, whose signatures are not attached to the deed, were ever applied to, or had any knowledge of the existence of the deed, nor of how they would have exercised their right had they been aware of its existence. Accordingly the deed of presentation by the respondents acknowledges the necessity of a majority, by professing (though falsely) to be made by a majority. To dispense with the signatures of a majority, and at the same time to hold the deed as what alone can be looked at, would be to sanction a course fraught with opportunities for fraud.
Mr Pemberton, and Mr Anderson, for the respondents.—There cannot be any right under the act 1690 unless by that act itself; it cannot be both by the statute and the deed, for the deed never once refers to the statute. The act gives the right to the heritors and elders, while the deed gives it to the heritors and kirk-session. The statute gives to the heritors and elders power to select a person, who should be presented to the heads of families, (strictly
Page: 618↓
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Exactly. Whatever they might do equitably to regulate their private rights, they could not restore that which the act 1711 had abolished. Taking the case not to be within the exception of the act 1711, the right of patronage was restored as it had existed previously to the act 1690, and it was no part of the object of the exception to the act 1711 to restore the mode of elections created by the act 1690. The parties who had paid the 600 merks, and obtained the renunciation directed by the act 1690, became, under the terms of the act 1711, the patrons entitled to exercise the right of patronage, not according to the mode prescribed by the act 1690, but as ordinary patrons; Ersk. I. 5, 19, so lays down the law.
No doubt it was the intention of the parties, by the deed of
Page: 619↓
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Exactly. And if this be correct, then the case of Brown v. Johnstone, 8 S. and D. 899, has fixed that where the right of presentation is in the parish, the deed of presentation is all that can be looked at, however many public meetings there may have been. The meetings are only, that the persons entitled to present being a numerous and scattered body, may come to some general understanding as to what it might be proper to do, but the execution of the formal deed is the only mode by which the right of presentation can be exercised.
As to the effect of any alleged agreement between the parties, to exercise the right of presentation by election at public meeting, and not by deed of presentation, that question cannot be raised upon the record. The summons proceeds entirely on the assumption, that the right was to be exercised by popular election, under the act 1690, and the condescendence is framed on the same view, but this is manifestly inconsistent with the notion of the agreement alleged, which would imply the existence, not of a right of popular election, but of ordinary patronage, and an arrangement merely as to the mode of its exercise.
But there is no evidence of any such agreement. The meeting was held according to the ordinary usage of the parish, merely for the purpose of ascertaining the general feeling, but not for the
Page: 620↓
Mr Solicitor General in reply.—In whatever way the right may be vested, and whatever appellation it may receive, that of presentation or of election, there must be a form for ascertaining the sense of the body entitled. The question, taking it upon the deed, is not between two competing deeds, whether the one has more signatures than the other, but whether the deed in favour of the respondent Park expresses the sense of a majority of those entitled; any number of signatures that he might choose to obtain, provided only it exceeds the number obtained by the appellant Young, could never conclude the other parties entitled, who might never have been applied to by either. The same course should be taken as to this parish as has been held in England in regard to parishes having the same right to exercise, where the vote of the majority at a public meeting has been held to express the sense of the majority of those entitled to elect. If so it is immaterial whether the right is to be exercised under the act 1690 or not.
The ordinary rights incident to patronage never were transferred by the act 1690, these remained with the original patron; all that was given by that act was the solitary right to present. In the cases, therefore, excepted from the repeal of that statute, the parishioners were not patrons entitled to exercise the right of patronage in the ordinary form, but were merely electors, as they had been previous to the repeal. And the only way in which the right of election, in such a case, can be exercised, is by the majority at a public meeting. In England the cases are without end in which this has been recognized, Attorney v. Parker, 3 Atk: 576; Attorney v. Forster, 10 Ves. 339;
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I am not inclined to admit that, for I think a meeting was the proper mode to ascertain the sense, King v. Davie, 6 Ad. and Ellis, 374. It is not inconsistent that a deed may be necessary, and that there should be a previous meeting, especially if the deed is consistent with the vote; but if the deed is inconsistent with the vote, can you look at the deed without regard to the vote? In Brown v. Johnstone there was a regular disposition of the patronage, and the question raised was, whether the right was in the heritors and elders alone, or jointly with the feuars.
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But if that case did lay down such a rule, it can never receive the sanction of this House, and at all events, it does not appear, in that case, whether the signatures to the deeds were not of the majority, while here we have averred that they are not of the majority.
Mr Anderson, in reply to the cases cited in the reply of the Solicitor General, called the attention of the House to Grant v. Gordon, Mor. 9945, as shewing that where the right was in several patrons, if one only exercised the right, that had been held sufficient.
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I am not aware of any but Brown v. Johnstone.
Page: 622↓
The act of 1690, destroyed patronage, and established a new and totally different scheme for the appointment of ministers. The heritors and elders were to propose a person to the whole congregation, to be approved or disapproved by them. If they disapproved, they were to give the reasons, to the effect that the affair might be cognosced by the presbytery, by whose judgment and determination the calling and entry of a particular minister was to be ordered and concluded. Six hundred merks was to be paid by the parish to the patron, in consideration of the patronage so taken away, upon his granting a sufficient and formal resignation of his right of presentation in favour of the parish. But, when the patronage was in the crown, the crown was denuded of the right by the mere payment of the six hundred merks.
It appears, that the six hundred merks were duly paid to the University of Glasgow, the original patrons, but no renunciation of patronage was executed by them.
In this state of things, the act of 10 Anne chap. 12. passed, which repealed and made void the act 1690; and restored the right of patronage to every patron who had not made and subscribed a formal renunciation, provided always, that the patronage should not be restored where the patron had received the money, and discharged or renounced the right of presentation.
The provisions of this act are very positive, and very distinct. The University of Glasgow, although they had received the 600 merks, had not, as required by the act, “made and subscribed a formal renunciation of their right of patronage;” and, therefore, by the express enactments of that act, the right of presentation to this parish was restored to them. The University, however,
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It is evident from the terms of this deed, that the parties were well aware of the state of the law at the time. If they had considered this parish as coming under the exception of the act of Anne, and the mode of appointing ministers as regulated by the act of 1690, there would have been no patronage to be transferred to the heritors, and there could not have been any right of presentation in the heritors and kirk session, all patronage being by that act abolished, and a mode of appointing ministers substituted inconsistent with any right of presentation. But inasmuch as the University had not before the act of 10th Anne, made and subscribed a formal renunciation of their patronage, all parties seem to have been aware, that that act restored to the University the patronage, and they executed a deed which assumed that it was vested in them, and which transferred to the heritors and kirk session their right of presentation to be thereafter exercised by them.
It was contended, that this deed ought to be considered as giving to the parish just such rights as they would have been entitled to, if the act of Anne had not passed. But, in the first place, that is not the purpose of the deed, and for a very good reason, namely, that in the then state of the law, such an arrangement could not have been effected. The act of 1690 had been repealed, as to all parishes at least not within the exception of the act of Anne; and even if the parties could have established a scheme similar to that provided by the act of 1690, so far as they were themselves concerned, they could not have given the power to the
Page: 624↓
It seems, indeed, to have been assumed, that even in those parishes in which a renunciation had been executed before the act of Anne, the parishes now enjoy the right as patronage, and not under the act of 1690. But in the present case, it appears to me clear, that the right of presentation is vested in the heritors and kirk session under the deed of 1726, as patronage, and not to be exercised according to the scheme of the act of 1690.
If this be so, there is very little more to be considered in this case. The question of agreement, which is not raised by the summons, but which was inquired into in the Court below, is no longer open to discussion. The pursuer does not insist that, looking to the two presentations, more electors have signed that in favour of Mr Young, than have signed that in favour of Mr Park. A scrutiny was declined below, and, therefore, could not be, as in fact it was not, asked of this house. The pursuer, however, says, that those who had signed the presentation in favour of Mr Park, do not constitute a majority of the whole of the electors. That cannot be material. Those who do not chuse to interfere cannot prevent the exercise of the right by those who come forward to exercise it.
The pursuer then says, that the right can only be exercised at a public meeting, and that the decision of the public meeting was in favour of Mr Young; and the English cases, and particularly the Attorney General v. Parker, in 3d Atkyns, 576, and the Attorney General v. Forster, in 10th Vesey, 339, were referred to. In these cases, the public meeting was not for the purpose of presenting or appointing, but for the purpose of instructing the trustees, in whom the right was vested for the benefit of the parish. Those who met, could not be parties to the presentation or appointment. Whereas, in the present case, none ought to
Page: 625↓
Independently of that authority, it would lead to strange consequences if it were to be laid down as a rule, that where a presentation is vested in many, there must be a public meeting. To what number is the rule to apply, and what knowledge can the authority to whom the presentation is made, have of what took place at the meeting?
If, indeed, fraud and improper dealing had been alleged and proved, what passed at the meeting might have formed a material ingredient in the case. But there is no such question upon this record. The summons impeaches the qualification of some of the parties who signed the presentation in favour of Mr Park, but it does not seek to reduce the deed upon any ground of fraud or breach of agreement. It prays, that it may be declared void, merely upon the ground that it was not in conformity with the decision of the majority of the meeting, which, it insists, was conclusive, because the right was to be exercised under the scheme of the act of 1690.
I am of opinion, therefore, that the pursuer has failed in all the grounds upon which he rested his case; and therefore move your Lordships that the appeal be dismissed with costs.
Page: 626↓
That being so, I am very much rejoiced to think that Mr Park, who has for a considerable time been in possession of the living, will still continue to enjoy it. But I own, my Lord, that I did entertain considerable doubt upon some of the questions which were argued; first, as to whether, supposing that the transaction had been completed by renunciation as well as the payment of the 600 merks, whether in that case, the election ought not to be under the act of 1690. That seemed to me by no means clear, and I should, though not having a strong opinion, have been inclined to think that the act of 1711 did not apply to cases where the transaction had been completed before that act passed.
Then, as to the second point, whether this deed of 1726, did not place the transaction upon the same footing as if that deed had been executed before 1711, it seems to me, that there are reasons entitled to some weight for considering that that deed is to be referred to the time when the 600 merks were paid, so as to place things on the same footing as if the renunciation had taken place before the act of 1711.
Again, supposing the right of election to be in the body, there seems to me to be great difficulty in knowing how it is to be exercised, except at a public meeting; because, it is not a case where there are several patrons, however large the number may be, who of their own right exercise the patronage, but where they exercise it as members of a public body, as heritors of the parish, or as elders of the kirk session. In such a case, it seems to me that there is great difficulty in saying that the mode of proceeding in England ought not to be adopted; and that would be done in the most satisfactory manner, by, according to usage, giving notice of the meeting, and when the meeting takes place ascertaining
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Ordered and Adjudged, That the petition and appeal be dismissed this House, and that the interlocutor, in so far as therein complained of, be affirmed with costs.
Solicitors: Thomas Deans— W. L. Donaldson, Agents.
