Scottish Court of Session Decisions

Craig raised an action, libelling, that a piece of ground in Airdrie was acquired by certain persons with the view of erecting a place of worship by subscription; that some time ago they named a committee, who erected a place of worship on the ground so acquired, and thereafter purchased a house immediately adjoining property belonging to the pursuer, in order to form a pathway to the said chapel; that in pulling down this house they caused injury and damage to the pursuer's property; that since the erection of the chapel, and in consequence of a recent Act of Assembly, a certain district in the vicinity thereof was constituted the west parish of Airdrie; that agreeably to the constitution of the church it became necessary that certain individuals should sign a bond rendering themselves liable to a certain extent for the minister's stipend, and that the business and property of the chapel, as well as other secular matters connected therewith, should be managed by a certain number of persons acting as managers thereof; that the business was accordingly managed and the secular interests of the chapel represented by a committee of management, of which committee the defenders Fleming and Wilkie were respectively preses and treasurer, and acted for and represented the committee and the body of subscribers to the chapel. The summons concluded against Fleming and Wilkie, “as acting and representing as aforesaid,” for £500 in name of damages sustained through the committee's operations.

It was pleaded, as a preliminary defence, that the action was incompetently directed against the defenders, convened as preses and treasurer of an unincorporated body, and that they were not liable to sustain action for the parties in behalf of whom they were alleged to act.

The Lord Ordinary, before answer, appointed the defenders to give in a list of the members of the committee, who, they alleged, ought to have been called. A list having been lodged, the pursuer offered to call these parties by a supplementary summons, contending that the process was not inept, but ought only to be sisted according to the rule recognised in Scott v. Napier, ¹ Feb. 23, 1827, and Geddes v. Hopkirk, ² June 2 1827. The defenders, however, still maintained that the existing action was totally incompetent.

_________________ Footnote _________________

¹ Ante, V. 414 (new ed. 393).

² Ante, V. 747 (new ed. 697).

His Lordship reported the matter to the Court, who held the action to be radically defective, and not capable of being cured by a supplementary summons; and accordingly directed the Lord Ordinary to dismiss the same.