BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Boswell v Duke of Portland [1834] CA 13_148 (9 December 1834) URL: http://www.bailii.org/scot/cases/ScotCS/1834/013SS0148.html Cite as: [1834] CA 13_148 |
||
[New search] [Help]
Page: 148↓
Subject_Church—Parish.—
Heritors of a parish are entitled, without the intervention of the Presbytery, to determine on repairing or rebuilding the parish church, and to assess for the expense thereof, and their judgment being within their powers, are, unless brought under review of the Court, binding on the whole heritors, whether absent or present, concurring or protesting. 2. It is no objection to a claim for a share of expense actually incurred in repairing a church, that no contracts had been entered into with the tradesmen prior to their executing the repairs. 3. Circumstances in the conduct of heritors which held not to amount to such gross negligence or culpa, as to relieve a non-concurring heritor from liability.
The parish church of Mauchline having fallen into a state of disrepair, a meeting of heritors was held on the 17th Augusts 1826, for the purpose of inspecting it. This they accordingly did, and appointed another meeting to be called, “for the particular purpose of considering the propriety of repairing and altering the present church.” This meeting was held on the 31st of the same month. The advocator, Sir James Boswell, one of the heritors, but then a minor, though nearly approaching majority, was present. It was proposed that estimates should be procured for repairing the church on the two following plans:—“First, to take away Lord Glenlee's gallery, and give accommodation to the persons deprived of scats in and under the east gallery; to renew Sir James Boswell's gallery, and bring it forward to the east side of the window east of it, raising the gallery higher; to lay the whole of the floor of the church with boards; to cut or draw round the walls in the inside, repairing and renewing such seats us are decayed, lining the walls round with wood, and repairing any decayed pavement in the church; or, second, to build an aisle in front of the pulpit, of proper dimensions, draw up a partition wall to cut off the present east gallery, and put up a gallery to correspond with Sir James Boswell's gallery, and do the other repairs pointed out in the first proposal.”
The meeting approved of this proposal, and directed the clerk to procure estimates of these repairs separately, to be laid before a meeting to be held upon Thursday the 14th day of September next; to which day the meeting was adjourned.
At the adjourned meeting on the 14th September, only two heritors attended. Plans and estimates were produced; the expense of the first plan of repair amounting to £423, and that of the second to £491. The two heritors present were of opinion that the second plan ought to be adopted, and strongly recommended it; but on account of the smallness of the attendance, declined to decide the matter, adjourning the meeting for fourteen days, and appointing copies of their minute to be sent to the principal of the absent heritors, and, in particular, to Sir James Boswell.
On the 28th September, being the day appointed, Mr Alexander of Ballochmyle, the principal heritor of the parish, was the only person who attended, but a letter had been received by the clerk from the factor of the Duke of Portland, agreeing on the part of his grace to the repairs recommended at the previous meeting. A minute was made, setting this forth, and, further, bearing as follows:—“The plans were again examined, and it was resolved that the repair of the church should proceed upon the plan of the aisle; and so soon as the signatures of Mr Campbell and Mr Douglas, (other two heritors,) and the agent of the Duke of Portland, were procured to this minute, advertisements for contractors should be inserted in the county papers. And for the purpose of carrying this and other matters connected with the repair into execution, name the whole heritors of the parish as a committee, with power to adjust the plans and specification—purchase wood for the building, if that is thought proper—and receive estimates and contracts for the work, and when necessary, call general meetings of the heritors; any two of the said committee to be a quorum—Mr Campbell convener.”
Thereafter, this minute was signed by Messrs Campbell and Douglas, and by the Duke of Portland's factor.
No further steps were taken till a meeting of the 12th February, 1827, which was attended by all the principal heritors personally, or by their agents, and, among others, by the agent for Sir James Boswell, and which directed the clerk to proceed, in terms of the minute of the 28th September. On this a protest was tendered for Sir James Boswell, in these terms:—“Mr Gibb, for Sir James Boswell, now protests against the proceeding of the heritors, because he maintains that he is entitled to repair his own gallery, as being private property, and that he is entitled to retain possession of his present gallery; and he takes instruments in the hands of the clerk.”
Of date the 19th February, Lady Boswell, as curator to her son, also addressed this letter to the convener of the heritors' committee for executing the repairs:—
“Sir,—As curator for my son, Sir James Boswell, I protest, on his part, against his gallery in Mauchline church being interfered with in any way whatever; and I request you will have the goodness to make this known to the committee of heritors, and have it inserted in their books.”
No steps, however, were taken to bring the judgment of the heritors under review of the Court, and the committee accordingly proceeded to take in offers, some of which they accepted at a meeting of date 1st May, 1827.
At a meeting held on the 16th July, which had been called by the convener of the committee, to receive the reports of tradesmen on the subject, the heritors resolved that certain farther alterations and repairs should be made, the payment for the extra work thus authorized to be fixed
On the 7th of August, in consequence of a citation of a meeting of heritors and kirk-session, for the purpose of considering the state of the poor, and also assessing for the repairs of the church, two heritors attended, alongst with two elders; and, on account of the smallness of the meeting, the heritors present delayed assessing themselves for the repairs of the church, and adjourned the meeting till the 14th, directing intimation to be made to the whole heritors. On the 14th, only the agent for the Duke of Portland, with an heritor to a small extent, who was also an elder, and another member of session attended; but the following resolution was adopted:—“The meeting in the mean time assess the heritors of the parish in the sum of 2s. in the pound for repairs on the church, and order the same to be immediately collected.” in the mean time, the tradesmen had been proceeding, under direction of the committee, with the repairs ordered; but they soon ascertained that the church was in a state of much greater insufficiency than had been supposed, and, in particular, that the roof was incapable of being repaired, and that the foundations of the walls were unsafe. In consequence of this, the heritors held a meeting, on the 25th October, at which the following procedure took place:—
“Mr Gibb, for Sir James Boswell, gave in the following protest:—‘Mauchline, 25th October, 1827. I hereby protest against any expense being assessed on the heritors generally. The church of Mauchline was in such a state as could not be condemned, and certain heritors took it upon them to cut and carve upon it as suited their own views and fancies, contrary to the remonstrances and numerous protests entered by me on the part of Sir James Boswell, and Lady Boswell, his curator. It is to these operations the demolition of the church is owing, and the heritors who carried them on are in all law and justice bound to make reparation to the parish, and restore the church into a state for public worship, which they have, without any legal authority or sufficient cause, rendered unfit for that purpose. (Signed) Andrew Gibb, for Sir James Boswell, and Lady Boswell his curator.’
“The other members of the meeting are unanimously of opinion, that it would be inexpedient to proceed any farther with the repairs on the present church, because, in consequence of the roof being declared insufficient, and the foundations of the walls unsafe, the expense of repairing the present church would so far exceed the sum that the heritors contemplated when they determined upon a repair, while the danger of its not
Application was thereafter made to the Presbytery, who approved of the plans and estimates laid before them by the heritors for a new church, and decerned for the sum required for the same. Considerable expense, however, amounting to £831, had been already incurred in executing the repairs which had now proved to be of no use; and Sir James Boswell having refused to pay his proportion, the heritors raised an action against him before the Sheriff of Ayrshire for payment of £61, 17s. 11d., being the share falling on him, according to the assessment at the rate of 2s. on each pound Scots of valuation, amounting in all to £532. The Sheriff having decerned against Sir James, he brought an advocation, in which he pleaded—
1. Heritors cannot, of their own authority, determine on the building or repairing a church, so as to bind absent or non-concurring, and still less protesting heritors, but must obtain the sanction and authority of a decree of the presbytery.
2. At all events, they cannot so bind absent or non-concurring heritors, unless they act with due discretion and prudence, which the heritors in the present case did not.
3. The meeting, and adjourned meeting, which imposed the assessment, were meetings of the kirk-session, which have no power to impose an assessment on the heritors; and the repairs were originally authorized by a single heritor, who could not himself constitute a meeting.
4. There having been no regular contract entered into with the tradesmen, no assessment could be levied, agreeably to the decision in the case of Porterfield. 1
5. The burden should be imposed on the parish according to the real, and not the valued rent; and,
6. Under this action, no more can be recovered than a share of the money actually expended in repairs, which only amounts to £331, while the sum assessed for, and of which a share has been decerned for, is £532.
To this it was answered—
1. By the act of council, 13th September, 1563, proceeding on the authority of the statute 1563, c. 76, full power is given to the heritors to build and keep in repair parish churches, and to assess for the expense; and the subsequent authority given by act 1572, c. 54, to bishops, and now exercised by presbyteries, was only to provide for the failure of the heritors, who are clearly entitled to determine, in the first instance, as to the rebuilding or repairing of parish churches, and to assess for the expense of the same, so as to bind all the heritors, whether major or
_________________ Footnote _________________
1 Dec. 19, 1829 (ante, VIII. 277).
minor, absent or present, concurring or protesting, unless their judgment shall be regularly brought under review of this Court. 1
2. The heritors, in the present case, proceeded bona fide in the exercise of their powers to the best of their judgment; and though, from the latent insufficiency of the church, the repairs proved of no use, that circumstance can afford no ground of exemption to an heritor who allowed the proceedings to go on without bringing their judgment under review.
3. The meetings at which the assessment was imposed were truly meetings of heritors, though the session had also been summoned for other business; but, even although the act of assessment were void, the repairs being duly authorized, Sir James Boswell must be liable to have decree pronounced against him for his share of them. Then, as to the repairs having been originally authorized by one individual, there is nothing to prevent a single heritor proceeding to the business for which a meeting has been regularly convened, if no one else attend; but here the concurrence of another heritor was notified by letter at the time, and two more afterwards signed the minute, and the resolution was subsequently confirmed by a full meeting.
4. The case of Porterfield had reference to a decree by a Presbytery, prospectively for a sum to be expended, and the Court held that this could not be done merely on a vague estimate, but that there must be a contract to warrant such prospective decree. Here, however, the sum concluded for is for expense actually incurred, and the principle of that decision does not apply.
5. The parish is a landward parish, though containing a small village, and there are no sufficient grounds for adopting the real instead of the valued rent, as the rule for imposing the burden; and,
6. It is truly immaterial whether the whole sum concluded for be decerned for against Sir James Boswell, provided he gets credit for the difference between it and his share of the expense of the repairs actually executed in the assessment for the new church.
The Lord Ordinary pronounced this interlocutor: “Advocates the cause: finds the defender liable for the assessment, in so far as the same is applicable to defraying the expense of repairing the church of Mauchline as libelled, and in so far repels the defences; but in so far as the said assessment is not to be applied to such repairs, but is intended to be applied towards building a new church, or otherwise, finds that the defender cannot be found liable for the same in this action, and in so far sustains the defences; and appoints the cause to be enrolled, that these findings may be applied.”
The heritors acquiesced, in so far as the defences were sustained; but
_________________ Footnote _________________
1 Lauder, Nov. 24, 1630 (M. 7913); Dunlop's Parochial Law voce Churches, § 21.
Sir James Boswell having reclaimed, the Court ordered Cases, and afterwards required the opinion of the whole Judges. The following were returned:
“2. We think, that such being the fact, it was the duty of the heritors to repair or rebuild it, in terms of the acts of Parliament 1563, c. 76, and 1572, c. 54, and act of Privy Council, 13th September, 1563, authorized and ratified by the first of these acts of Parliament, all as interpreted or modified by the practice and custom of Scotland. It has been long settled in practice, that the term ‘parishioners’ used in these acts must be interpreted to include not mere inhabitants, whose interest in the parish may cease at any time, but those only having immoveable property in the parish, i. e. heritors; and also, that the share of this burden originally allotted to the parson must now be added to that borne by the heritors. In this way, the provision of the act of Privy Council now comes to be read:—‘Therefore the said Lords ordain all parish-kirks within this realm, which are decayed and fallen down, to be repaired and upbigged, and where they are ruinous and faulty, to be mended; and after, that they be sufficiently mended in windows, thack, and other necessaries, to be maintained and upholden upon the expenses of the heritors.’
“3. We think that the heritors of Mauchline had the power of executing their duty of repairing the kirk of that parish, by means of meetings of their own body, called on the requisition of any one of the parties interested, and at those meetings acting as usual, by the vote of a majority of the members present in person, or by proxy, adopting such measures of repair as seemed fit, and imposing assessments for payment of the expense of such repairs, so as to bind all the heritors. It seems to us in general, that the heritors of parishes having the duty of repairing churches imposed upon them, it was the implied meaning of these act a of Parliament and Privy Council, that quoad hoc the heritors should be able to act as a corporation, by holding meetings, which should represent the whole body, and act for and bind them in this manner. For the act of Privy Council, with a view to the speedy execution of this duty, authorizes the issuing of letters to messengers, which we presume must have been obtainable at the instance of any person interested to charge the heritors to elect persons to tax them for the expense of such repairs; and it cannot be supposed that they were to be charged to do what was not understood to be within their competency. The messenger, it will be observed, is not authorized to call any meeting, or declare its powers or mode of acting, but simply to charge the heritors to do their duty in this respect. And the statute 1572, which expressly ratifies the previous provision, and censures the parishioners, i.e. the heritors, for not having done their duty in this respect, authorizes the interference of the bishops (now presbyteries) only where the parishioners, being required to elect and choose ‘persones for making of the taxation to the effect foresaid; refuses or delayis, or quhair thair is na kirk-maisters or deacons appoynted;' and
“Accordingly, in the case of Lauder, 24th November, 1630, reported by Spottiswoode, an heritor was found to be bound to pay an assessment laid on by a meeting of heritors for reparation of the kirk, though he himself had not agreed to it. It is true, that in that case it appears the presbytery had interfered. But still, the assessment was imposed, not by the presbytery, (or bishop,) as authorized by the statute, 1572, to be done, but by an act of a meeting of heritors, which the act gives no authority to the presbytery to call, or to authorize, if otherwise incompetent. And we believe, that in practice it has been understood that the heritors might act in this way without any warrant from the presbytery, and that this understanding has been acted upon.
“We observe, too, that an heretrix was, in the case of Inverkeithing, 15th February, 1642, Durie, found liable to pay her proportion of a stent imposed for a kirk-bell, which must have been viewed as a pertinent of the kirk, and that at the instance of the parishioners, and without any mention whatever of the presbytery having interfered.
“4. We think that the heritors being thus, quoad hoc, made into a corporation, every one heritor must equally be bound by their acts, whether he be sane or insane, major or minor, present at the meetings or absent, voting with the majority or with the minority, acquiescing in or protesting against what is done. There is, however, a remedy competent to every heritor, which indeed manifestly implies that every heritor is bound, viz. by an application to this Court, to control and direct the body of the heritors by its authority. This any heritor may use; but if he does not, he cannot exempt himself by any act of recusancy or dissent.
“5. But it may be asked, can a meeting, or the majority of a meeting of heritors, do any thing they please, without becoming responsible in their own persons exclusively for the burdens imposed by their acts? We should answer, that, provided they do not exceed their powers, they cannot incur such responsibility, except by acting fraudulently, or at least with that wilful negligence or wantonness that culpa lata quæ dolo equiparatur, We think that honest error in judgment, even although pretty palpable, will not subject them in this way. Considering that the heritors who attend fulfil a duty which those who are absent decline, and that those who attend and oppose have the remedy of appeal to this Court, which can fail them only because they do not choose to use it, we think it would be very hard and very inexpedient to hold that the heritors attending the meeting, or those voting in the majority, were to bear the whole burden of what was competently and honestly done in the general concern, merely because it was not done wisely. At that rate, prudent men would stay away from all such meetings, and reserve
“6. We think, then, that the church of Mauchline requiring repairs, it appears from the record that the heritors of that parish were competently and fairly called to meetings, and that those meetings acted competently and fairly in ordering the repairs on the church to which this question relates. That they acted unfortunately is clear; and we could not say that they acted judiciously. But we see no reason to say there was any fraud or culpa lata quæ dolo equiparatur in their conduct. The heritors) present at the meetings were on all occasions acting in a matter wherein their own interest was concerned, exactly in the same way as that of all the heritors absent or dissenting was. There appears no trace of any separate or perverse interest whatever leading to any thing that was done. If, then, any thing was done wrong, we do not well see how it could arise from any other cause than honest error in judgment, for which we do not think they can be subjected in the penalty of personal and exclusive liability.
“7, In this case, the advocator pleads a nullity of the whole proceedings of the heritors, because they did not obtain precise and complete contracts for the repairs before resolving to adopt, or commencing them, or imposing the stent for the expense of them. We are not aware of any grounds for such nullity. The act of privy council not only does not mention, but it does not seem to contemplate any contract at all, previous to raising money. The concluding sentence is, ‘that the said parishioners make payment of the sums that they shall be taxed to the kirk-masters or deacons of the paroch, to be appointed by them for receiving thereof, to the reparation of the said kirks, sicklike within twelve days next after they are charged thereto, under the pain of rebellion, and failing thereof to be put to the horn.’ And it seems obvious, that although in cases of rebuilding it is always possible to have a previous contract (though, even in these cases, there is generally some extra matter left in a looser state), yet in cases of repair it is very often impossible. The estent, nature, and expense of the repair necessary, often cannot be known until it be actually made; and when it is attempted to make previous contracts for repairs of old buildings, modifications and changes of plan must sometimes unavoidably happen. We do not think, therefore, there is any good ground for this plea of nullity. The case of Porterfield, in which the Court restrained a presbytery from raiding money before they had obtained estimates, and entered into contracts for building a new church, bears no analogy to the present, which relates, not to the acte of the Presbytery, but of the heritors; and is not a question of what the Court will direct to be done when applied to before-hand,—but whether, after repairs have actually been executed or attempted by the heritors, without any application made to the Court to prevent it, the Court will throw the whole burden of those repairs on certain heritors only, and exempt another heritor, because the former executed or attempted the repairs without rigidly adhering to an estimate and contract, while the other stood by, and at most objected, but took no legal measure to have the errors of his brother heritors corrected in time. This last would require nothing less than some strict legal nullity in the proceedings. And we may repeat, that we see no warrant for holding that even the total want of a contract for repair of a church would constitute such nullity—still less, some looseness in and departure from the contract occurring in the course of executing or attempting to execute such repair.
“8. Another special objection has been stated, that at one of the meetings the
“On the whole, we are of opinion, that upon consideration of what is set forth in the record, pleadings, and productions, the advocator ought to be subjected to the assessment in question.
“There is only one other point on which we have not touched above; because we are not sure that it is involved in the question put to us, which seems to relate rather to the liability of the advocator to the assessment generally, than to the amount of his share of it, viz. Whether the stent ought to be proportioned as has been done, or in the manner appropriate to the parish, considered as partly a town parish, like that of Peterhead? If this plea is persisted in, we rather think that it must lead to an investigation of the facts of the case.”
“In the present case, it appears that on the 13th December, 1827, the presbytery appointed two tradesmen of skill, approved of by the heritors, to inspect the state of the church of Mauchline, which they did, and reported upon oath that they found the foundation of the walls insufficient, and the walls generally in an insufficient state, and the roof very much decayed, and the whole in such a state as to be incapable of being repaired. Six weeks before this, one of them had informed the heritors that the whole roof was perfectly rotten and useless. Considering how simple the structure of a country church in Scotland is, all this might have been discovered with equal ease in September, 1826, before a shilling of expense had been incurred, as in October, or December, 1827, after more than £500 had been spent in an abortive, because an impracticable attempt.
“There is no evidence from the minutes, that a general examination of the church, with reference to the fact whether it could be safely and effectively repaired, took place, before a plan of repair was adopted and commenced. The west gallery was indeed inspected, and on that inspection a resolution to repair, agreeably to a certain plan, was passed, and a contract actually executed. That plan was soon
“To give effect to this assessment would be, in my opinion, a bad precedent. A meeting of heritors is too often disposed to prefer the alternative of repairing to that of rebuilding, either from shortsighted economy, or from the desire of transferring a burden from their own shoulders to those of their successors; and by patching up an old and ruinous church, the congregation in the mean time is ill accommodated, and themselves, and those whom they are empowered to assess, are in the end saddled with twice the expense which would be required to erect a new one. It is for the benefit of all parties, that the heritors should not be encouraged to wink at the real state of the building placed under their charge.
“It seems to be thought hard, that the loss in this case should be laid on the individuals who attended the meeting, while those who staid away are exempted; and if it were done, that a motive would be held out to heritors to absent themselves on such occasions, and to neglect the duty imposed upon them by law. But truly there is little danger of that result, for if the heritors do not choose to act, the presbytery will not fail to act for them. I am of opinion, therefore, that the advocator is not liable for the assessment in question.”
“There is a third question of less consequence—Whether, holding the proceedings of the heritors in this case as unauthorized and informal, the advocator, Sir James Boswell, has nevertheless, by taciturnity and acquiescence, debarred himself from making any objection to them?
“The two quesions first mentioned must be governed by the act of the Secret or Privy Council in Scotland in 1563, referred to and confirmed by act 1563,
“It is not said, in the act of the Secret Council, by whom the letters of horning there mentioned are to be obtained, for compelling the parishioners to choose fit persons, styled kirk-masters and deacons, to make the requisite assessments, two-thirds being laid on the parishioners, and the remaining third being laid upon the parson, that is, the parish-minister himself, if in the full right of the benefice, or the individual standing in the general right of the titularity of the teinds. It may be supposed that any of the parishioners or members of the ecclesiastical establishment in Scotland at the time were entitled to interpose. The assessment, however, is to be completed in twelve days, and within twelve days more payment
_________________ Footnote _________________
* Act of the Privy Council of Scotland anent Repairing of Paroche Kirkis, 13th September, 1563.
Apud Stirling, xiij Septembris, Anno lxiii.; The quhilk day, the saidis Lordis of Secreit Counsalle, understanding that the paroche kirkis of this realme, partlie be sleuth and negligence of the parochineris, and partile be oursycht of the personis, dailie decayis and becummis ruynous, and part of thame ar alreddy fallin doun, the parochinaris nawyis causand the samyn be mendit nor yit the persone doant that appertenis to him for uphald thairof, quhairthrow the preching of the word of God, ministratioun of the sacramentis, and reding of the commone prayers, ceissis. And the people thairthrow becummis altogidder without knawlege and fear of God. Thairfoir the saidis Lordis ordains all paroche kirkis within this realme quhiikis ar decayit and fallin doun to be reparit and upbigget. And quhair thai ar ruynous and faltie, to be mendit. And efter that thai be aufficientlie mendit in windowis, thak, and uther necessaris, mantenit and uphalden upoun the expenssis of the parochinaris & persone in manner following. That is to say, the tua part of the expenssis thairof to be maid be the parochinaris and third part be the persone. And that the samyn may tak effect with expeditioun, ordanis letteris to be direct to officiarla of the Quenis shireffis in that part to pas and charge the parochinaris of the paroche kirkis within this realme to elect & cheise certane of the maist honest qualifeit men within thair parochynis to taxt every ane of thame efferand to thair substance for furnessing of the twa part of the expenssis to be maid in bigging and repairing of the saidis paroche kirkis. And that the saidis taxaria to be chosen mak the said taxatioun to the effect foirsaid within xij dayis nixt efter thai be chargit thairto. And efter the said taxatioun be maid, that the saidis parochinaris mak payment of the sowmes that thai sal be taxt to the kirk-maisteris or deaconis of the parochin to be appointit be thame for ressavìng thairof to the reparation of the saidis paroche kirkis sicklike within xij dayis next efter thai be chargit thairto, under the pane of rebellioun, and failzeing thairof to put thame to the horne. And also, that the saidis messingeris pas and sequestrat the frutis teindis and proffittis of the saidis parochynis, sa fer as may extend to the personis part of the same: To remane in the parochinnaris handle quhill the said persone depone and put in the handis of the said kirk-maister and deaconis his part of the expensis to be maid upoun bigging and repairing of the said kirk, extending to the third part thairof: And the saidis sowmes being put in the said kirk-maister or deaconis handis, that thai incontinent thaireftir cause the saidis kirkis ilk ane within thair awin parochynis be reparit, biggit, and mendit sufficientlie, efferand to the sowmes that sal be consignit and put in thair handis to that effect, under the said pane of rebellious, and fallzeing thairof to put thame to the horn, &c.”
is to be made to the kirk-masters or deacons; and it is also to be enforced against the parishioners by a charge of horning—what is to be kid upon the parson or titular, so far as unpaid, being to be recovered by sequestration of his lands and teinds, and to be paid over to the deacons and kirk-masters.
“These measures may be considered as rather summary, but they might be thought expedient and just, in order to accelerate the buildings required, and for equalizing the burden among the parties liable, the expenses not being made a real lien upon the lands, but to fall upon the proprietors and titulars at the time.
“From the enactment in 1572, it appears that the parishioners had been tardy in imposing the necessary assessments, and did not name kirk-masters and deacons. It enacts, ‘that quhair the parochiners being required to elect and chase persones for making of the taxation to the effect foresaid, refusis or delayis, or quhair there is na kirk-masters or deacons appoynted, That then the archbischop, bischop, superintendent, or commissioner of the kirkes in the time of their visitation, quhilk sall be betwixt and the first day of Junii nixt to-cum, sall at their descretioun nominate and appoint persones in every parochin, for making and settling of the taxation, as alswa for receiving of the samin; and decernis and declaris the said nomination and appoyntment to be sufficient, and sicklike execution sall passe for compelling of them, as micht have been given and granted, be vertew of the said act of Secret Council, in case they had bene elected be the parochiners.’
“There is no longer any doubt that the Presbyteries and other Ecclesiastical Courts, as established at the Reformation, and now existing, have all the powers given by these statutes, although at first they were exercised jointly with those dignitaries of the Episcopal Church, who then held appointments in Scotland. Indeed, by enactments in the same year, chap. 46 and 48, the same functionaries are authorized to perform all the necessary offices of the church, the superintendents and commissioners there mentioned being members of the presbyterian persuasion having charge of ecclesiastical matters at the time.
“It thus appears—
“1. That the heritors or landed proprietors of Scotland (for such must be held to hare been the parishioners mentioned in these enactments) had no authority, of themselves and directly, to order what was to be done as to rebuilding or repairing of churches, or as to the subsequent proceedings; their duty was to name kirk-masters and deacons, with the powers assigned to the persons so described. Upon the heritors failing to do so, the members of the Reformed Church within whose bounds the parish lay were to appoint persons duly qualified, and to enforce what was required.
“3. Although nothing is said as to the question, Whether the church was to be rebuilt or repaired, it seems necessarily to follow, that the persons so appointed were, in the first place, to decide either as to the one or the other. They could not otherwise determine what assessments were to be imposed, and which, it will be remembered, were to be equal to the expenditure in repairing or rebuilding, and no more; nor could they enter into effectual contracts for that purpose, as was well explained and enforced in the late case of Kirkmacolm. On this point, there could be no difference between repairing or rebuilding.
“It may be admitted, at the same time, that the heritors might, by a mutual contract, agree to build or repair a church, so as to render it fit for the accommodation of the parish; and after such contract, whether it had received the formal
“It has seen said, that, after the work was performed, (the expense amounting to £522, of which £61 has been assessed upon the advocator,) the sanction of the presbytery might be obtained; but, in this respect, the authority of the church courts is purely statutory, and can only be exercised in the form and manner prescribed by the statute. Although the work had been properly ordered and beneficial, as they have proved the contrary, the presbytery could not afterwards give any confirmation to them; and, accordingly, the demand has been made in the ordinary course of law, as in the case of a consensual obligation. But it is manifest, and clearly established by the judgment in the case already referred to, that the presbytery could only have acted as the respondents ought to have done. If they had followed the course pointed out by law, they would have previously enquired, whether an effectual repair might be made, or if a new church was necessary. They would have then advertised for specifications and estimates, and entered into a regular contract, with proper security for the performance; and, upon payment of the sums so ascertained, the heritors would have been free from any farther expense for many years to come. What has been done has been wholly useless, and so much money thrown away; and if the respondents cannot support the proceedings on the footing of an obligation, created, and necessarily to be inferred from the advocator's conduct, they have no case.
“On looking, however, into the proceedings as stated in the record and writings produced, the judgment of the Sheriff appears to be unauthorized. Before any repairs were begun, as it would seem, a protest was taken against the proceedings; and although the reason there stated was rested upon the taking away of the advocator's gallery, it virtually and necessarily included an objection to the whole. These protests were from time to time renewed. It also appears that, instead of the repair attempted, the walls of the church might have been underbuilt, whereby the building of a new church would have been rendered unnecessary. No regular contract was made—the one which is referred to as such being without a date; it is not attested by witnesses, nor subscribed by the cautioners, nor by a single heritor; and yet the advocator's name is mentioned among the rest, as entering into the contract. By such a writing, the cautioners could not be bound, nor any of the heritors, unless in consequence of their approbatory acts. Besides the specified repairs as to which an estimate had been given in, it was left to the contractors to do what farther might be thought necessary, the work to be valued by an individual named; and with regard to the advocator, so far from justifying the plea arising from implied consent or approbation, his conduct throughout expressed dissent, and nothing else. In this respect, the decision in the case of Arnott, which has been referred to, is quite adverse to the respondents' argument, it being held, that where an obligation could only be raised on an implied consent, it might be put an end to at any time by dissent.
“It is almost unnecessary to add, that, from such circumstances as have here occurred, great misunderstandings have arisen between the clergy of Scotland and the heritors, as well as among the heritors themselves, and much unnecessary expense
The cause having been put out for advising, Lord Glenlee, as a party, having declined, and the three remaining Judges of the Second Division concurring with the minority, there was thus an equality in the whole Court, and the cause accordingly stood over. Lord Craigie, however, having died, and Lord Cringletie having retired, and Lords Jeffrey and Cockburn having been appointed, their opinions were now required, and were obtained in these terras:
I cannot enter into the view which seems to have been adopted by Lords Gillies and Craigie, that the whole proceedings of the heritors were without legal sanction, and could only be enforced as a consensual contract among private individuals, because the injunctions of the acts of Parliament and Privy Council were not literally observed; and, in particular, “that they had no authority of themselves” to order repairs or assessments, but only “to elect persons” to perform those offices.
If this be a just view of the existing law, the consequence would be, that no repairs have been ordered, or any assessment levied, by meetings of heritors, on legal authority for the last 200 years; since it is believed to he at least so long since “taxtars” and “kirk-maisters,” in terms of the act of Privy Council, have been appointed to impose the assessments, and execute the repairs. Nay, if it be necessary to find an express sanction in the words of the acts for all that is now to be done, it might well be doubted whether the heritors alone were entitled to interfere, to the exclusion of the other parishioners; and it seems clear that no election of taxtars could be valid, unless it was made at a meeting called on letters of charge by the Sheriff, and unless the taxation was made within twelve days after their nomination. In the same way, as to the interference of the church, the act 1572 allows it, in express terms, to “archbishops, bishops, superintendents, or commissioners” only; and could never justify either any order or contract, or any actual assessment by the authority of those, or any other ecclesiastical persons directly; since it gives no such powers, but only authorizes them in certain cases “to nominate and appoint persons for making and settling the taxation,” in default of the previous nomination of such persons by the heritors; while it is at least doubtful whether the words of the statute would warrant even this exercise of power, subsequent to the 1st of June, 1573.
It is needless, however, to say that inveterate practice and repeated decisions have settled that this is not the true construction of these enactments; or rather, that the law upon this, as upon many other subjects, has been incontrovertibly settled by practice and decisions, upon principles originally introduced by particular statutes, but modified and extended in their practical application, as the progress of society, and the changes of our institutions might require.
Upon the second ground of defence, as to which the opinion of Lord Corehouse
The remark of Lord Corehouse, that all actings under a statutory power are null, unless the terras of the statute are complied with, is unquestionably true as to recent statutes, containing a precise definition of the powers granted, and a minute directory as to the way in which such powers are to be exercised, but has a very limited application to such ancient acts as aro here in question, which contain no directions whatever, either as to surveys, contracts, or estimates, and have already been explained, or extended, by an authorized usage of near two centuries.
The real difficulty is, that it is always somewhat of a loose (or jury) question what should be held to amount to culpa lata? And it is a little complicated in this case by the principle established in that of Kilmalcolm. Generally speaking, I do not consider that case as having any direct or authoritative application to the present, for the reasons stated in the opinion of the majority. But still, if the opposition of the advocator had been rested from the beginning on the precise grounds which were sustained (rebus integris) in that case, and if the expense had been unprofitably incurred, in the face of a requisition upon his part to delay any outlay or assessment till it was ascertained whether repair or rebuilding was most eligible, and till the amount was liquidated by a special contract, I should have been inclined to hold that the other heritors were guilty of a culpa lata in proceeding after such an admonition; and on this ground I would have subjected them, without relief, in the whole amount which was afterwards fruitlessly expended; but it is abundantly obvious that this, at all events, was not the character of the proceeding. The advocator seems at first to have acquiesced in the resolution to repair, and never proposed any enquiry with a rview to the other alternative of rebuilding. He afterwards objected, indeed, to any interference with his gallery, and applied to the Sheriff for an interdict on that special ground; in the refusal of which he seems, however, to have acquiesced. After this he merely protested generally, and certainly did nothing to lead the heritors into the right course, or to put them in mala fide in pursuing that on which they had entered.
The case of Kilmalcolm was a case de damno infecto et probabili, where a premature proceeding was stayed rebus integris, and most properly. But here it is de damno facto et certo; for the proceeding, right or wrong, was completed without legal impediment or specific challenge; and the question is, not whether it would have been better to have made previous enquiry, and whether any one requiring it tempestive might not have enforced his request, but how the expenso actually incurred shall now be defrayed?
Suppose that the repairs, instead of being found impracticable, had been happily completed, and a tolerable church been obtained by means of them, would the case of Kilmalcolm bave entitled the advocator to have refused his share of the assessment, merely because the repairs had been gone about, and the assessment laid on, without sufficient enquiry or a formal contract, and after protests by him about his gallery, or otherwise, as they now appear on the record? If he could not have refused in such a case, I think it clear that he cannot be allowed to refuse in the present, on the mere authority of the decision in Kilmalcolm; for
In truth, though the case of Kilmalcolm is referred to, I do not understand that it is on the principle of that case that the advocator truly relies; The grounds on which he substantially rests his defence are, 1. That the expense was entirely useless, and the money thrown away; and, 2. That this was owing to gross and culpable negligence in those who incurred it. The first of these grounds, taken by itself, I hold to be irrelevant; and the other, with great submission, I think not grounded on fact.
Assuming that the procedure was honest, and that the heritors took as much care of the advocator's interest as they did of their own (which seems indisputable) the case, though more startling perhaps in its circumstances, really comes to the ordinary one of some extra expense being incurred in a building, in consequence, of obstacles which, in point of fact, were not foreseen when the work was begun, though by very careful enquiry they might have been discovered. Suppose that in rebuilding a church some unexpected defect in the foundation requires additional building or piling, or even a change of the line of some of the walls, and a demolition of part of what is erected, to avoid such expense, would this be a ground on which an absent heritor, or even one who had protested about his gallery, or generally against having a new church at all, could get rid of his share of this additional expense? and yet, by a very careful examination of the ground, the necessity of it might have been avoided. In principle, the case is parallel here, and plainly depends, not on the consideration that the expense has been actually unprofitable, but on the question whether it was occasioned by plain, culpable neglect? In the present instance, I cannot bring myself to hold that it was.
The amount is immaterial to the law or the justice of the case. But if I read the record right, the Lord Ordinary's interlocutor reclaimed against does not find the advocator liable for £61, 17s., as his share of £532, 10s., but merely for his share of £331, 11s., which will be less than £38.
There being thus now a majority of eight to four in favour of the Lord Ordinary's interlocutor—
The Court adhered, and remitted to his Lordship to proceed accordingly.
Solicitors: Horre and Rose, W.S.— J. W. M'Kenzie, W.S.—Agents.
