Scottish Court of Session Decisions

In the year 1809, a number of gentlemen connected with the north of Scotland formed themselves into an association for the purpose of establishing and endowing an academy at Tain. They obtained a charter from the Crown, constituting certain parties ex-officiis, and a certain number of subscribers, to be chosen in a particular way, into a body corporate with the usual privileges, under the title of “Managers and Directors of the Tain Academy,” seven to be a quorum. Power was given to subscribers to the amount of ten guineas and upwards, at the annual general meeting on 30th April, to make such bye-laws as the majority should think requisite for the better government of the academy, “provided always that when any new bye-law, or any alteration of the existing bye-laws, should be intended to be made at any such annual meeting, notice of this intention should be inserted in one or more of the London evening newspapers, and in one or more of the Edinburgh newspapers, one month at least previous to the day of the meeting.” The charter then proceeded to direct that “all bye-laws so made should, until altered, be duly observed and kept, provided they were not contrary to the laws of the realm, and the general purport and meaning of the charter.”

The building and other arrangements of the academy were completed in 1812, and an advertisement for teachers, viz., a rector with a salary of £90, and two other masters with salaries of £80, was inserted in the newspapers. At a meeting of directors on 13th October of that year, a draft of certain bye-laws was approved of; but before finally deciding therein, one of the directors was instructed to correspond with persons versed in such regulations as to the adoption of additions or alterations, and the regulations so altered, on being laid before another meeting of directors, were then to be acted upon as interim laws, until the general meeting in April. One of these proposed bye-laws was as follows:—“That if any of the teachers shall be found, after due enquiry by the directors, to be unsuccessful, or in other respects unworthy of the trust reposed in him, it shall be always competent to the directors to deprive such teacher of his office, and of all the emoluments connected with it.” In December, the suspender Gibson, then head-master of the grammar school of Forfar, was chosen second or classical master of the Tain academy. On 15th February, 1813, the academy was opened, on which occasion the directors publicly stated to the teachers the different bye-laws which it had been thought necessary to make in the mean-time for their regulation.

On 30th April, the day appointed by the charter for the election of directors, advertisement thereof having been made in the Inverness newspaper, the meeting of subscribers unanimously adopted certain bye-laws, which the secretary intimated had undergone the revision of the teachers, and appointed them to be the standing regulations of the academy. Of these regulations, the 6th was as follows:—“In case it shall be found necessary to discontinue any of the teachers, which can only be done by a special meeting of the directors regularly called for the purpose by their preses for the time being, it is understood and declared that such teacher shall receive three months' previous notice of such intention, before his services are declared at an end; and in the event of any of the teachers wishing to leave the institution of his own accord, such teacher shall be obliged to give three months' previous notice to the prases of the directors for the time being, before the close of a session, of his intention of giving up his charge.” The regulations above-mentioned were subsequently acted upon and recognised by all parties concerned.

For many years after his appointment, Gibson taught Latin and Greek, and also French, with general approbation and to the satisfaction, often publicly expressed, of the subscribers and directors of the academy. In 1818, however, the then rector and Gibson came to be openly on bad terms, the latter being alleged to have failed in due subordination. The matter was remitted by the directors to a committee, who reported that the rector “had made out the case of insubordination being encouraged and prompted by the conduct of Mr Gibson in his own class.” At a meeting of directors and subscribers, Gibson, as stated in the minutes, “declared his great regret for the trouble the directors and subscribers had had in these matters, and should it be passed over, his determined resolution, in time to come, to observe a strict personal subordination to the orders of the rector and directors, and to inculcate the same on his pupils.” Some conversation took place at this meeting, and the opinion of counsel was directed to be taken as to the powers of the directors and subscribers to dismiss one of their teachers. No farther public notice was taken of the matter, nor did any thing occur in the conduct of Gibson calling for the interference of the directors till the year 1832, with the exception of one circumstance on the occasion of a convivial meeting in 1819, which was overlooked on his promise of amendment. In 1832, a proposal being made for lowering the school-fees, Gibson stated to the directors “that he would never consent to teach the children at an iota less than he had hitherto received and bargained for.”

In 1834, certain parties in Tain, including most of the resident subscribers, being dissatisfied with Gibson, procured a private teacher to settle in Tain and teach the branches of education belonging to his department in the academy. The number of scholars attending the classes taught by Gibson falling off to a great extent, and the dissatisfaction caused by him continuing undiminished, a meeting of directors was held in August, 1835, after advertisement in the newspapers, at which a unanimous resolution was passed dismissing him from the institution. Against this resolution Gibson complained by a bill of suspension, which was refused by the Lord Ordinary on the Bills (Balgray). He then presented a second bill, which was likewise refused by the Lord Ordinary (Cockburn), but, on coming before the Inner House, was remitted to be passed on the ground of certain technical objections to the regularity of the proceedings. ¹

Thereafter, proceedings for that purpose being adopted of new, a meeting took place on 1st August, 1837, at which the directors, being a quorum of seven, including the Sheriff-substitute of Ross, an ex officio director, unanimously “discontinued Gibson as a teacher in the academy, dismissed him from the said office, and declared his services at an end.” Of this sentence Gibson again brought a suspension, stating the previous proceedings, and alleging the directors to have been influenced by personal motives of hostility, and particularly by his refusal to accede to their proposal for lowering the fees, and contending in point of law that the proceedings were still liable to objection on the score of irregularity in so far as one of the quorum of directors was the Sheriff-substitute of Ross, a director ex officio, and as such not entitled under the charter to vote in any question connected with the patronage of the academy; that the directors were not entitled at common law to remove the complainer at pleasure, ² and were not empowered by their charter to make a bye-law having such effect; at all events that the bye-law in reference to this matter was not made in terms of the charter; and that under the circumstances

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¹“Ante, XIV. 710.

² Magistrates of Montrose, January 18, 1710 (M. 13118); Adam v. Directors of Inverness Academy, July 7, 1815; Ante, XIV. 714 note.

of the case there was no implied contract between the directors and the complainer at the time of his appointment, by which he could be held to have recognised and homologated this bye-law so as to be bound by its terms.

By the directors it was contended in answer, that Gibson had been regularly dismissed, and by a competent quorum of directors; that there being no restriction in the charter as to the power of dismissing a teacher, the directors as a private incorporation, and as the parties appointing the teacher, necessarily bad such power, and consequently could legally declare in the bye-law in question their intention of exercising it if necessary; that the bye-law was a sufficient expression of their right, and was regularly enacted and with all proper advertisement; but at all events that Gibson had been aware from the first of this right in the directors to dismiss, and had himself been shown and subsequently revised the original regulations in which it was expressly referred to, and had after his appointment to the office recognised the bye-law in question as one of the standing rules of the academy.

The Lord Ordinary (Jeffrey) reported the bill and answers to the Court, adding to his interlocutor the subjoined note. ^*

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^* “As this case has been matured in various previous discussions, and is fully argued in the bill and answers, the Lord Ordinary thinks it for the interest of both parties that the merits should now be disposed of, if possible, by a judgment of the Inner-House; by which, though issued only from the Bill-Chamber, the whole matter in dispute may probably be practically settled.

“If he had been to give his own judgment in this stage of the proceeding, it would have been for passing the bill: not, however, because he had made up his mind judicially that the letters ought to be suspended simpliciter, but because be was not so satisfied of the reverse as to justify him in precluding the complainer from taking the opinion of the Court on the question by refusing the bill.

“If a single judge sitting in the Bill-Chamber entertains any serious doubt as to a question which must eventually go to the Inner-House, it is conceived to be his duty, generally, to pass the bill. And even where, from the fulness of the argument, or such other circumstances as occur in the present case, there is reason to expect that an authoritative opinion on the merits may be more speedily obtained by reporting the bill and answers, it is apprehended that he may be equally justified in following such a course by the existence of such a doubt, and equally excused from individually forming any positive opinion on the merits.

“There are several points in the complainer's argument which he conceives to be untenable; and some which appear to be pressed with no great discretion. But others raise questions of difficulty. On the whole, the Lord Ordinary is of opinion, that the complainer was bound by the bye-law relied on by the respondents, if that bye-law was duly enacted in terms of the charter. But he has doubts whether it was so enacted. The charter distinctly requires, not only that all bye-laws shall be adopted only at the annual meetings on 30th April, but that previous notice of the intention then to propose them shall be given ‘by public advertisement in the London and Edinburgh newspapers, one month at least previous to such annual meeting,' and it is understood to be admitted that no such notice was given as to the bye-laws now in question: and whether the effect of this omission can be held obviated, either by the alleged compact with the teachers, or the substantial iteration and homologation of the law, by its publication and recital without objection at various advertised meetings for 25 years ensuing, is a question deserving perhaps of more serious attention than the respondents have been pleased to bestow on it.

“The main grounds, however, on which he would have been induced to pass the bill, are, 1st, That the bye-law itself only empowers the directors to remove a teacher, ‘in case it shall be found necessary’ so to do: which does seem to be something different from a power to remove whenever they may think proper, or, in short, at their pleasure; while, if a necessity (moral necessity of course) is required to justify the measure, it is difficult to suppose that its existence should be held proved by their mere allegation, and without allowing the party most interested to disprove its reality: and 2d, That the opinions given in the case of Montrose, in 1815, do give so much countenance to the argument maintained by the complainer, as to make it lilting that it should not be rejected in a case so nearly analogous, without the gravest consideration. The Lord Ordinary is also a good deal moved in this question of the construction, or legal application of the bye-law, by the variance of the terms in which it, is expressed in the original draft, enacted ad interim on 14th October, 1812, and those in which it is finally adopted on 30th April thereafter. In the former, it, is provided that a teacher may be removed, not only if found ‘on enquiry by the Directors’ to be unworthy of trust, but also if he be unsuccessful: whereas in the latter be is only to be so dealt with ‘in case it shall be found necessary,' which really appears to be quite as strong an expression as that in the Inverness case, where the power was generally ‘to dismiss any of the teachers on proper grounds.’ It is difficult to conceive that it can ever be necessary to dismiss a teacher, unless there are proper grounds for his dismissal.”