No. 182. Powell v. slander, in which the Court (Vide supra, p. 534.) (SUPRA, Feb. 25, 1896, p. 534.) This was an action of damages for July 3, 1896. adjusted issues on 25th February 1896. On 26th June the defender moved the Court to ordain the pursuer to find caution for expenses as a condition of being allowed to pro1ST DIVISION. Ceed. He stated that the pursuer, after incurring debts of a substantial amount in Glasgow, had gone away from that city without leaving any address. No. 183. July 3, 1896. Lord Saltoun v. Magistrates of Edinburgh. No appearance was made for the pursuer. The Court ordered intimation of the motion to be made to the pursuer. Intimation was accordingly made by registered letters directed to the pursuer's last known address, but these were returned unopened. On 3d July the defender repeated his motion. LORD PRESIDENT.-The pursuer is an undischarged English bankrupt, and the question is whether he should be allowed to proceed in the action without finding caution. It is necessary for the determination of that question to consider the circumstances of the case and the nature of the action. On a recent occasion we had to give careful consideration to the quality of this action of damages for slander, and we were not favourably impressed with its bona fides as intended for the vindication of the pursuer's character from the charges which had been made against him. Taking advantage of his technical right to sue on certain isolated charges, he did not face up to the real attack made upon his character. I mention this in consequence of our obligation to consider the nature of the pursuer's claims in his action. We are also aware of the recent occasions when, on questions as to the time for trying this action, the pursuer has evinced no eagerness to meet the jury. We are now told that he has left Glasgow in debt, and without leaving an address. Accordingly, in the whole circumstances, I think this is a case in which we should ordain the pursuer to find caution within eight days. LORD ADAM, LORD M'LAREN, and LORD KINNEAR concurred. THE COURT ordained the pursuer to find caution within eight days. CUTHBERT & MARCHBANK, S.S.C., Agents. THE RIGHT HONOURABLE ALEXANDER W. F. FRASER LORD SALTOUN Process-Petition to Dean of Guild-Answers lodged for first time e appeal-Competency-Procedure.-In a petition to the Dean of Guild for warrant to alter a building the Burgh Engineer appeared on behalf of the Lord Provost and Magistrates, who were called as respondents, and objected verbally to the petition being granted. The Dean of Guild having refused the petition, the petitioners appealed, and thereafter answers were tendered for the Lord Provost and Magistrates, embodying the verbal objections previously stated on their behalf. The petitioners objected to the answers being received. The Court allowed the answers to be received, and remitted the case to the Dean of Guild to proceed. Lord Saltoun LORD SALTOUN AND OTHERS, trustees for the Supreme Council for No. 183. Scotland of the 33d and last Degree of the Ancient and Accepted Scottish Rite of Freemasonry, applied to the Dean of Guild of Edin- July 3, 1896. burgh for a warrant to construct a room over a portion of the flat roof v. Magistrates of a building at the back of No. 74 Queen Street, of which they were of Edinburgh. proprietors. 1ST DIVISION. In terms of the Edinburgh Municipal and Police (Amendment) Dean of Guild Act, 1891, section 49, the plans were remitted to the Burgh Engineer, Court, Edinwho returned them with this indorsation," The place is already burgh. sufficiently built on, having regard to the light and ventilation of existing buildings." In the course of the proceedings the Burgh Engineer, on behalf of the Magistrates and Council, objected verbally to the petition being granted, on the ground previously stated. On 11th June 1896 the Dean of Guild, after visiting the ground, refused the petition, on the ground that all the existing open space was required for the proper lighting and ventilation of the premises. The petitioners having appealed to the First Division, answers to the petition were tendered by the Lord Provost, Magistrates, and Council, in which they maintained that the appeal should be dismissed, on the grounds that the proposed addition would have the effect of seriously diminishing the light and ventilation of the street tenement, and that the question of what open space was required for lighting and ventilation was one for the discretion of the Dean of Guild. The petitioners objected to the answers being received, and argued ; -The answers should have been tendered in the Dean of Guild Court, and should not be received now. In any view, if the answers were allowed to be put in, the case should be remitted to the Dean of Guild Court, for if a record were made up in the Court of Session and the case tried there unnecessary expense would be laid upon the petitioners. Argued for the respondents;-The course which had been followed was convenient. It was not for the public interest to add to the formal procedure in the Dean of Guild Court, and in many cases it was unnecessary that a record should be made up there. The course here followed was according to practice.1 LORD PRESIDENT.-I should be sorry to do anything to impose upon the town expense and trouble to add to the formal procedure in Dean of Guild applications, and probably in the greater number of cases it is unnecessary. But we must consider the rights of proprietors, and according to the shewing of the town what has been done here is that the town having an answer to the application in the Dean of Guild Court withholds it, and the opposite party comes to this Court. If we order a record to be made up here two very undesirable things will happen,-first, we will not have the advantage of a judgment from the Dean of Guild on the question raised by the answers; and second, because the town has thought fit to withhold its answer, its opponent will have to pay the expense of a Court of Session litigation. I am against arriving at a conclusion which involves either of these results. I think the proper course is to allow the answers to be received, and to remit them, with the case, to the Dean of Guild. 1 Stewart v. Marshall, July 20, 1894, 21 R. 1117; Glasgow Coal Exchange Co. v. Glasgow City and District Railway Co., July 20, 1883, 10 R. 1283, at p. 1287. No. 183. July 3, 1896. LORD ADAM.-I am of the same opinion. The Dean of Guild has both administrative and judicial functions, and I Lord Saltoun can quite understand that in the vast majority of applications the town or v. Magistrates the opposite party is entitled to rely on the knowledge of the Dean of of Edinburgh. Guild, assisted if necessary by the advice of the Burgh Engineer, properly disposing of them, and that it is quite unnecessary for either party to interfere. But that is not the course which has been followed here, because we are informed by counsel for the town that the town did object to the application being granted at the first. If that is so, I agree that it is not fair that the town, having a case to submit, should in the first instance lie by and take the chance of the decision of the Dean of Guild being in their favour, and should not come forward to state their answer to the application until the other party has been obliged to come here. I agree that we should allow the answers, and I think further that in this class of case we are entitled to have the judgment of the Dean of Guild, and to review it, and that the parties should not come here in the first instance. I asked whether the questions raised could be tried in the Dean of Guild Court, or whether the case was such as would from its nature come back to us, and I was informed that it was not a case of the latter kind. On the whole matter, therefore, I agree with your Lordship. LORD M'LAREN.-I should have been content, having regard to the practice of the other Division, to hear this case on the petition and answers as stated, and if a practical question were found to exist, then to remit it for the decision of the Dean of Guild. But the question of making up a record is a matter for the discretion of the Court, and no doubt the course approved by your Lordships is a convenient one to adopt, and will not have the effect of preventing the parties from hereafter obtaining a judg ment of this Court on the construction of the statute. LORD KINNEAR.-I concur. The considerations that have weighed with me are, first, that the answers, as we have been informed by the counsel for the respondents, raise questions for the judicial determination of the Dean of Guild, and within his jurisdiction, so that after the decision in the Court of first instance the case, if it comes here at all, will come only for review; and secondly, that the counsel for the magistrates informs us that the objections taken in the answers were intended to be taken at the original proceedings, and that the respondents appeared and verbally opposed the petition on these very grounds. But I must observe that this verbal opposition does not appear to have been made known to the other party. Accordingly, the magistrates represent themselves as having obtained a judgment on questions which they have abstained from raising in any formal manner until they come to this Court. I agree that this is not a convenient course of procedure, nor altogether fair to the petitioners. The petitioners are entitled to have the Dean of Guild's judgment upon the questions that are raised on the answers, and we on the other hand ought to be informed with more certainty than we are at present whether the deliverance submitted to review was or was not a judgment pronounced after hearing parties. THE COURT allowed the answers to be received, remitted the cause No. 183. to the Dean of Guild to proceed as should be just, and found the respondents liable in expenses in the Court of Session. LINDSAY MACKERSY, W.S.-THOMAS HUNTER, W.S.-Agents. WILLIAM BANNERMAN AND OTHERS, Pursuers (Reclaimers).-Johnston -Sym. JOHN OTTO MACQUEEN (Miss Bannerman's Trustee), Defender REVEREND ANGUS M. MACKAY, Defender (Respondent).-Clyde. Trust-Charitable Bequest-Church-Conditional Bequest-Forfeiture.— A testatrix, who died in 1876, by a settlement, dated in 1875, directed her trustees to set apart the sum of £3000, and to pay the interest arising therefrom to the incumbent for the time being of St James's Episcopal Church, Aberdeen, "so long as the congregation worshipping in said church shall not be united to, or in connection with, the Scottish Episcopal Church." She further declared that in the event, inter alia, of the congregation at any time "uniting or being in connection with" the Scottish Episcopal Church, the trustees should be bound to pay over the £3000 among her residuary legatees. In an action raised by the residuary legatees in 1895 for declarator that the legacy had become payable to them, on the ground that St James's Church was in connection with the Scottish Episcopal Church, the following facts were proved : St James's Church was constituted in 1854. By the deed of constitution it was provided, "The cure of the said St James's Church shall be held as aforesaid by clergymen having the orders of the said United Church of England and Ireland, and by such only." The "English Episcopal" congregations in Scotland, of which St James's was one, kept themselves apart from the Scottish Episcopal Church and its bishops. As they had no bishop of their own, candidates for church membership, after being prepared by their own pastor, either went to England and were confirmed by a bishop there, or were admitted to the communion without confirmation. In 1871, when the incumbency was vacant, a majority of the St James's congregation passed a resolution requiring the future ministers to take a licence from the Bishop of the Scottish Episcopal Church in Aberdeen. The testatrix, and other members in the minority, lodged a notarial protest against this resolution being carried out, and it was abandoned. In the beginning of 1877 arrangements were made by St James's Church, along with the other English Episcopal congregations in Scotland, to obtain the services of Bishop Beckles, a retired colonial bishop, but, in April 1877, the Convocations of Canterbury and York censured Bishop Beckles for intruding into the dioceses of bishops of the Scottish Episcopal Church without the consent of the bishop of the diocese, that church being in full communion with the Church of England. In consequence of this censure, the incumbent of St James's refused to present candidates for confirmation to Bishop Beckles, and the congregation approved of his action. The incumbent then, on his own responsibility, applied for and obtained a licence from the Bishop of the Scottish Episcopal Church at Aberdeen, the incumbent at the same time signing the Canons of that Church. No objection was taken by the congregation, and each subsequent incumbent took a licence from the bishop. The incumbent at the date of the action held a licence "to perform all the duties competent to his order in the Church of St James and the district attached thereto in our diocese." During his incumbency intimations were made to the congregation of con July 3, 1896. Lord Saltoun v. Magistrates of Edinburgh. No. 184. July 4, 1896. No. 184. July 4, 1896. Bannerman v. Bannerman's Trustee. 1ST DIVISION. firmations to be held by the bishop, and candidates from St James's were confirmed by him, not in St James's Church itself, but in various Scottish Episcopal churches in Aberdeen. Collections for the mission and education funds of the Scottish Episcopal Church were intimated to and made by the congregation. No change was made in the constitution of St James's Church, and the congregation, as a congregation, entered into no agreement with the bishop. The Court (rev. judgment of Lord Kyllachy, diss. Lord M'Laren) granted decree, holding that no overt act on the part of the congregation as such was necessary to create a connection in the sense of the trust-deed, and that such a connection was instructed by the facts proved, and in particular by the fact that the incumbents openly and in the knowledge of the congregation accepted the licence of the Scottish Episcopal Bishop of Aberdeen, and presented to him candidates for confirmation, thereby obtaining for themselves and the congregation many of the benefits arising from a connection with the Scottish Episcopal Church. MISS GEORGINA BANNERMAN, Aberdeen, died in February 1876, Ld. Kyllachy, leaving a trust-disposition and settlement dated 12th November 1875, by which she conveyed her whole estates to trustees for certain pur poses. The third purpose was as follows:-" I direct my trustees, at the first term of Whitsunday or Martinmas after my death, to set apart the sum of three thousand pounds sterling, to be retained and invested by my said trustees in their own names as a capital sum, and the interest and annual profits arising therefrom shall be paid and made over by them, yearly or half-yearly, to the incumbent for the time being of St James's Episcopal Church, in Aberdeen, for the purpose of augmenting his stipend, but that only so long as he continues to discharge the duties of incumbent to the satisfaction of my trustees, and so long as the congregation worshipping in said church shall not be united to, or in connection with, the Scottish Episcopal Church, and so long as the services and mode of worship in St James's Church shall be conducted in a manner which, in the opinion of my trustees, shall be strictly evangelical, and devoid of all practices of a ritualistic description, such as are in use among the party in the Church of England known as the High Church party, declaring that in any of the following events, viz., first, the congregation worshipping in said church at any time uniting or being in connection with the Scottish Episcopal Church; or second, my said trustees being of opinion, and recording that opinion in writing, either that the incumbent has failed to discharge his said duties to their satisfaction, or that the service has been, or is being, conducted in a manner not strictly evangelical, and not devoid of such ritualistic practices-on all which questions my trustees shall be the sole judges, and their opinion final-then and in any of these events the said capital shall no longer be held by them for any purpose connected with the said church; and my trustees shall be bound, and they are hereby directed, forthwith to pay over and divide the same among those of my residuary legatees hereinafter specified, or such of them as shall be alive at the time of any of the events hereinbefore provided for, occurring to forfeit the interest of the said incumbent in said provision of three thousand pounds.” In 1895 General William Bannerman, C.B., and others, the residuary legatees of the testatrix, raised an action against (1) John Otto Macqueen, the sole acting trustee; (2) Rev. Angus M. Mackay, the incumbent for the time of St James's Church; and (3) W. K. Glover and others, the managers of the congregation worshipping in St James's, concluding for declarator that the bequest of £3000 had lapsed and fallen into residue, and that Mr Macqueen was bound forthwith to divide it |