LEADING ECCLESIASTICAL CASES

DECIDED IN THE COURT OF SESSION,

1849-1874.

JULY 3, 1849.

PETER STURROCK, Pursuer.-Cowan―Millar.

THE REV. A. O. GREIG AND OTHERS, Defenders.-Inglis-J. A. Wood. SECOND DIVISION. Jury Clerk,

Reparation-Privilege-Church-Malice-Probable Cause—Process—Issue.

1. No action for damages will lie against a Church Court of the Established Church for any sentence or judgment pronounced by them in a proper case of discipline duly brought before them, regularly conducted, and within their competency and province as a Church Court, even although it be averred that the judgment was pronounced maliciously, and without probable cause.—But observed, that any sentence or judgment of these Courts, which is beyond their jurisdiction, or whereby they refuse to exercise powers conferred upon them by law, will be reduced and set aside, and damages awarded to any person injured thereby.

2. In a case where an Inferior Church Court did not act judicially, but merely presented a petition to the General Assembly, praying for advice, on a narrative which was averred to be false, malicious, and calumnious, and made without probable cause, the Court held that no action of damages would lie against the Court, in respect the petition was intimately connected with proper judicial proceedings before them, and was composed almost entirely of a statement of these proceedings.

3. A Kirk-Session pronounced a sentence against a member of the Church, which was reversed by the Presbytery and Synod on appeal; but the Session, notwithstanding, refused to obtemper the judgment of the higher Courts, and reiterated from the pulpit, by means of the minister, the charges contained in their original sentence. In an action of damages against them for so doing,-Held that it was unnecessary to libel malice or want of probable cause, but simply that what they did was done falsely and calumniously, and in violation of duty.

4. A Kirk-Session having the right to nominate certain scholars to a mortification, refused to do so, and intimated to parties interested therein that their reason for so doing was, that the teacher of the school was unfit for and

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neglected the duties incumbent on him as teacher. Held not necessary, in an action of damages, to libel malice, but merely that what the Session said was false and calumnious.

PETER STURROCK brought an action of damages against the minister and elders forming the Kirk-Session of Blairgowrie, concluding-1st, Against the Kirk-Session, for damages said to have been sustained from certain proceedings adopted by them in the character of a Church Court; and, 2d, Against the Rev. A. O. Greig, minister of the parish, for damage said to have been caused by calumnious statements made by him in an individual capacity.

Sturrock, in the summons, stated, that in November 1845 he was appointed assistant schoolmaster for the parish of Blairgowrie, in which capacity he gave great satisfaction, and in August 1846 was unanimously elected assistant and successor to the parochial schoolmaster : That the Kirk-Session, about the month of November 1846, conceived a groundless ill-will against him, and followed it up under the cloak of official duty, by the adoption of measures calculated to destroy his character and usefulness, and to mar his success in life: That they accordingly, to gratify private hostility, and in violation of their public duty, resolved, without cause or pretext, to arraign him as an offender at their bar; and, as a preliminary step, on the 17th November 1846, the defender, Mr. Greig, with their sanction and authority, called on the pursuer to meet him at a private interview relative to a charge they were to prefer against him: That the pursuer waited on Mr. Greig at the manse, who then accused him of irregular attendance at Church and at ordinances during the preceding six months, and in intemperate language asked him to explain the cause, which he did; but the explanation did not satisfy Mr. Greig: That on the 22d December 1846 he was cited to appear before the Session on 24th December, "to answer to the charges of irregular attendance and neglect of ordinances, and also to a certain fama existing against you:" That this citation, so far as regarded the existence of a fama, was false and calumnious, and was issued without pretext and probable cause: That on appearing before the Session, the pursuer made the same statement as he had formerly done to Mr. Greig; but instead of accepting the explanation, they, because it differed from a false and perverted account of the interview between him and Mr. Greig, drawn up by the latter, made it the foundation of a charge of falsehood and prevarication against him. With reference to the alleged fama, he denied its existence, and they refused to explain the charge which it involved. They stated, however, that the certificates he had brought with him to Blairgowrie, and on which the Session had acted in admitting him a member of the church, were not sufficient. On this, though not bound to do so, he offered to obtain additional testimonials.

On the 19th January 1847 he intimated to the Session-clerk that he was ready to produce the documents on two hours' notice, but no notice was taken of this communication.

That on the 2d February the Kirk-Session met, and, without giving

the pursuer any notice, pronounced a judgment, finding, "1st, That while Mr. Sturrock is guilty of the charges of irregular attendance on the preaching of the Word, and absenting himself from the Sacrament of the Lord's Supper, as aforesaid, yet the reasons which he assigns. appear to them to be evasive, futile, and unsatisfactory. 2d, That in refusing to produce the necessary certificates which the Session required at a former meeting, he evidently shows a disposition to treat the requisition of this court with contempt, and manifests a determination not to satisfy the members thereof in regard to the point upon which he was interrogated, namely, as to whether or not he underwent the discipline of the church for the sin of fornication, of which he was guilty when residing in the neighbourhood of Perth. 3d, That in denying the statements which he made to the moderator, when, at the request of the Session, he (the moderator) had a private interview with him, and, as set forth in the moderator's report, contained in the minute of 21st December last, he is guilty of deliberate falsehood; and especially as the Session have not only the testimony of their moderator, in whom they have every confidence for the truth and correctness of said statements, but also the declaration of an individual who was present when these statements were made by Mr. Sturrock, and who is ready to make oath that these statements were not only the substance, but the very words which Mr. Sturrock uttered. On these grounds, therefore, the Session, considering that Mr. Sturrock's conduct is highly unbecoming the character of a Christian and a communicant, unanimously find that they cannot do otherwise, consistently with a sense of the duty which they owe to God, to their own souls, and to the church of which they are office-bearers, than pass upon him the sentence of suspension. And they accordingly did, and hereby do, suspend the said Peter Sturrock, sine die, from the enjoyment of sealing ordinances, aye and until such time as he shall satisfy the Session upon all the points in question; and they instruct their clerk to give him intimation of said deliverance."

The pursuer averred that this judgment was pronounced in his absence at a meeting of Session which he had not been warned to attend, and was, moreover, unjust, illegal, calumnious, and oppressive, inasmuch as, without any proof whatever, and in the face of his denial, it found him guilty of grave offences against church discipline and morality, of which in point of fact he was innocent, and farther suspended him from the privileges of the church; and the KirkSession, in pronouncing it, acted in violation of the duties of their office, in order to gratify personal feelings of hostility and ill-will against him.

The summons farther set forth, that he, on these grounds, appealed to the Presbytery of Meigle, who, in the first place, appointed a committee of their number to meet with the parties, with a view to healing measures, but the Kirk-Session refused to meet with the committee; that thereafter the Presbytery reversed, in hoc statu, the judgment of the Kirk-Session, and remitted the case to them to proceed according to the rules of the Church.

That the pursuer was thereafter cited to appear before the Session on the 5th May, which he did; on which they, without further inquiry or proof, adopted the same resolutions, and passed the same sentence of suspension from Christian privileges.

On an appeal to the Presbytery, they, on the 22d June 1847, unanimously found, "That as the appellant, on coming to Blairgowrie, produced a certificate signed by an elder of St. Bernard's, Edinburgh, bearing that he was in full communion with that congregation, and was admitted a member of the church of Blairgowrie on producing the same; and that a certificate from the minister and two elders of St. Bernard's, also bearing that Mr. Sturrock was in full communion with the church, was produced to the Kirk-Session of Blairgowrie at their meeting on 5th May last, it is incompetent in said Kirk-Session to review the proceeding of St. Bernard's Session, or call in question anything in regard to the appellant prior to his admission as a member of that congregation; find also that no evidence has been laid before this Court in support of the charge of falsehood brought against Mr. Sturrock; find further, that with regard to his being absent from divine ordinances, satisfactory reasons had been stated, and which reasons have not been proved untrue by the Kirk-Session of Blairgowrie: Reverse the sentence of suspension from sealing ordinances passed against him by the said Kirk-Session."

The summons further narrated, that an appeal by the Session was dismissed by the Synod, on the ground of informality; and that Sturrock then applied to Mr. Greig to baptize his child, born pending the above proceedings. This application was laid before the Kirk-Session, who, on 2d November 1847, "unanimously agree that they are not justified, in present circumstances, in granting sealing ordinances to Mr. Sturrock, and resolve accordingly."

Sturrock appealed to the Presbytery, who, on the 22d December 1847, found, "That the judgment of the Presbytery, of date 22d June, not having been set aside by the sentence of the superior Court, which sentence has not been appealed against by the Kirk-Session of Blairgowrie has become final, and that thereby Mr. Sturrock is declared to be in full communion with the Church: Find that the Kirk-Session of Blairgowrie are not entitled to commence de novo a prosecution of the charges against Mr. Sturrock, thus finally disposed of; and that, as no new charges subsequent to the date of the deliverance of Presbytery have been brought by said Kirk-Session against Mr. Sturrock, and the members of said Kirk-Session present do not allege that any new charges exist against him, find that the Kirk-Session of Blairgowrie were not warranted in refusing Mr. Sturrock Church privileges, grant the prayer of the petition, and ordain the Reverend A. O. Greig to baptize the petitioner's child."

That this decision was confirmed by the Synod, but appealed by the Session to the General Assembly.

The pursuer further averred, that besides the appeal, the KirkSession presented a petition to the General Assembly, in which it was falsely, maliciously, and calumniously stated, that a fama had existed