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Ordinary, on the application of a Presbytery or other recognised
judicature of the Established Church of Scotland, to issue letters of
first and second diligence against witnesses neglecting or refusing to
attend, on the citation of the Church Court, to give evidence in any
competent proceeding before it.
Opinion (per Lord Ardmillan) that the aid of the Civil Court to
enforce the attendance of witnesses may be given, and ought to be
given, when craved and required, even in causes within churches
6. MMILLAN v. GENERAL ASSEMBLY, FREE CHURCH (1st Car-
dross Case), December 23, 1859, 22 D. 290
Church-Dissenters—Society-Jurisdiction—Title to Sue-Reduc-
tion-Satisfying the Production.—A minister belonging to the “Free
Church" having been suspended from office by the “General
Assembly" of that body (as alleged irregularly), applied to the Lord
Ordinary on the Bills for interdict, in consequence of which applica-
tion he was summarily deposed, as he averred, in absence, and with-
out being allowed to be heard. He brought actions of reduction of
both sentences, and of damages against the “General Assembly,"
and also against certain individual members of it, alleging, inter alia,
that the sentence of deposition was “a gross and flagrant violation
of the contract, or compact and rules of the association, under which
the pursuer held his office and emoluments as Free Church
minister ;” and that by, and in consequence of, the defenders' pro-
ceedings, he had been seriously injured in his character, feelings,
and patrimonial interests, and had been also deprived of his income,
and that they were actuated by malice and ill-will, and without
reasonable cause. The defenders pleaded that the pursuer had no
title to sue ; that the sentences complained of being pronounced in
a matter of Church discipline, by an association of Christians
tolerated by law, the Civil Court could not interfere; that, accord.
ing to the contract or constitution of the association, the pursuer
was bound to submit to the exclusive authority of their “General
Assembly," and that the defenders had acted strictly within the line
of their duty. Held (altering judgment of Lord Benholme), that a
voluntary association of Christians had no jurisdiction in the proper
legal sense of that term, and that it was necessary to examine the
contract in order to see whether by it the pursuer had precluded
himself from seeking redress, and that it was also necessary to ex-
amine the sentence in order to see whether it fell under the con.
tract :- therefore defences, as against satisfying the production,
7. M‘MILLAN v. GENERAL ASSEMBLY, FREE CHURCH (2d Car-
dross Case), July 19, 1861, 23 D. 1314 . . .
Church-Dissenting Establishment— Reduction -- Jurisdiction.-
Held (aff. judgment of Lord Jerviswoode) that sentences of suspen.
sion and deposition pronounced by a voluntary religious association
against one of its ministers were not such spiritual acts as could not
competently be taken cognisance of by the Civil Court; and that
an action of reduction and damages against the General Assembly of
the association, and certain individual members, on the allegation
that such sentences had been irregularly pronounced, in excess of
their powers, and in violation of the conditions which regulated the
proceedings of the association amongst themselves, and which were
alleged to form a contract amongst the members of the association,
was competent ;-and enquiry into the constitution and regulations
of the body directed.
8. M‘MILLAN v. GENERAL ASSEMBLY, FREE CHURCH (3d Car-
dross Case), July 9, 1862, 24 D. 1282 . . .
Reparation-Church Judicatory-Process—Title to Sue— Reduc-
tion - Issues-Malice. In two conjoined actions at the instance of a
deposed minister of the Free Church, the first against the General
Assembly of that body, and the moderator and clerks thereof as
representing the same, for reduction of a sentence of suspension and
for damages ; and the second against the same parties, and also
against three individual members of the Assembly as individuals,
for reduction of a subsequent sentence of deposition and for damages,
the grounds of both actions being an alleged excess of power and
violation of the contract or constitution of the association by the
General Assembly; and there being no allegation of malice, except-
ing one against the individual defenders, which was not insisted in,
the pursuer stated that, in the event of the first action being held
untenable, he could not insist in the second on the record as it
stood ;-Held (diss. Lord Deas) that the reductive conclusions were
only auxiliary to the demand for damages, and could not be main-
tained by themselves; that the claim of damages could not be main-
tained as laid ; and therefore issues disallowed and actions dismissed.
Opinions (per Lord President), that the General Assembly of the
Free Church was not a body which could, in its collective capacity,
or by its office-bearers, be convened in an action or subjected in
damages ; (per Lord Curriehill), that a claim of damages could not
be maintained against parties upon whom judicial functions were
lawfully conferred by private agreement, on account of an act done
in the exercise of such functions, without an allegation of malice;
(per Lord Deas), that a conclusion for reduction, with a statement of
intention to follow up the decree by an action of damages, and with-
out qualification of any other interest to pursue the reduction is
UNITED PRESBYTERIAN CHURCH.
9. CRAIGIE V. MARSHALL (Kirkintilloch Case), January 25, 1850,
12 D. 523 . . . . . . .
ChurchTrustContract.—The title to a dissenting meeting-
house was vested in trustees, "for behoof of the members of the
Associate Congregation in Kirkintilloch, commonly called Seceders,
and presently in connection with the United Secession Church."
The minister of the congregation declared his separation from the
Secession Church, and a majority of the congregation adhered to
him. Shortly thereafter a union took place between the Secession
and the Relief Churches, the two bodies taking the name of the
United Presbyterian Church. In an action by a minority of the
congregation, who adhered to the United Presbyterian Church,
against the minister and the majority,-Held, that the defenders
having separated from the Secession Church, was not a violation of
the conditions on which the property of the meeting-house was held
in trust, so as to lead to a forfeiture of their rights to it, they still
continuing to hold the doctrines and opinions originally maintained
by that body, and that they were entitled to refuse to concur in the
union with the Relief Church, and were not bound to submit them.
selves to the change in the Church government consequent upon it.
10. CAIRNCROSS V. MEEK (Carnoustie Case), May 28, 1858, 20 D. 995
Trust Church—Property-Acquiescence --Mora— Personal objec-
tion.—Property consisting of a piece of ground, with a church and
dwelling-house built thereon, was held by certain persons "as
trustees and managers appointed by and in trust for behoof of" a
congregation of Seceders "adhering to the original principles of the
Secession." The trust-deed provided that the subjects should
belong to the congregation for which they were so held, and to
those who in time coming should accede thereto, and that “any
trustee permanently removing from the bounds of the said congrega-
tion, or leaving the foresaid principles, or otherwise becoming dis-
connected with the said congregation, shall forfeit his right as
trustee, and that ipso facto and without any formal vote.” In an
action at the instance of certain persons designing themselves the
only surviving and continuing trustees, and also of parties designing
themselves members of the congregation, against a majority of the
trustees, who with the congregation, had united with the Free
Church, to obtain restitution and possession of the property, on the
ground that the defenders had, by their union, ceased to be members
of, or trustees for, the congregation, and had illegally kept posses-
sion of the property ;-Held that the pursuers, not having taken
any steps debito tempore to oppose or prevent the union, were
excluded from insisting in the action.
11. COUPER v. BURN (Thurso Case), December 2, 1859, 22 D. 120
Church-Dissenters, Trust.—A congregation of Seceders pos-
sessed a chapel which was vested in trustees for behoof of a con.
gregation in connection with the body that afterwards became the
“United Associate Synod of Original Seceders.” A majority of the
Synod joined the Free Church; the minority met and constituted
themselves the Synod, adhering to their former principles. The
congregation was divided, but a majority was in favour of the union.
In an action of declarator by the minority to vindicate their right
to the chapel ;-Held (alt. judgment of Lord Ardmillan), that,
having regard to the trust-title under which the property was held,
the chapel belonged to the part of the congregation which adhered
to the principles maintained by the church for whose behoof it was
vested in trustees; that a majority of such a body were not entitled
to compel the minority to unite with any other body, or divert the
chapel from the purpose for which it was held in trust; that the
principles of the Free Church and of the United Associate Synod
of Original Seceders were different in essential particulars; and there.
fore, that the pursuers were entitled to decree, as concluded for,
12. DUNBAR V. SKINNER, March 3, 1849, 11 D. 945
Church-Bishop.—The office of “Bishops of the Protestant Episcopal Church in Scotland," is not recognised by the law of Scotland.
Church-Jurisdiction. — The authority of the judicatories, courts, synods, or similar assemblies of dissenting sects, over the ministers or members of these sects, depends entirely upon contract between the judicatories and the parties submitting themselves to their anthority; and, on the violation of these contracts by the judi. catories, the other parties may withdraw themselves from their authority, and an ecclesiastical censure pronounced by them is not a privileged act.
3. A clergyman of the Church of England subscribed, under certain conditions, the canons of the Scottish Episcopal Church, and submitted himself to the authority of one of the Bishops of that Church. He afterwards withdrew his subscription, alleging, as his reason, that the conditions on which he had subscribed had been violated by the Bishop. An ecclesiastical sentence against him was subsequently issued by the Bishop. In an action of damages at the instance of the clergyman against the Bishop, on the ground that the sentence pronounced was libellous, -Held, 1. That the Bishop had no authority at law to pronounce such sentence. 2. That his authority, if he ever had such, depended on the contract of submission by the clergyman, who was entitled to withdraw from it if its conditions were violated. 3. That the Court has jurisdiction to try whether the contract was violated. 4. Defence that the act of the Bishop was privileged, repelled; the clergyman having offered to prove a violation of the contract.
13. EDWARDS v. BEGBIE, June 28, 1850, 12 D. 1134 . .
Reparation - Slander — Church — Dissenters — Privilege. — An action of damages against the vestry of an Episcopal chapel for slanderous words used in resolutions come to by them in their character of vestrymen, will lie at the instance of a member of vestry, provided the injury is charged as having been done maliciously, and without probable cause, or in violation of duty ;-Terms of issues settled as applicable to such a case; and also in reference to the publication of the resolutions from the pulpit by the clergyman.
14. FORBES v. EDEN, December 8, 1865, 4 M. 143
Church-Reparation—Title to Sue, Reduction.—A clergyman of the Scotch Episcopal Church brought an action against the members of a General Synod of that Church, concluding—(1) for reduction of certain canons enacted by the Synod, which altered the canons in force when the pursuer was ordained ; (2) for declarator that it was ultra vires of the Synod to enact these, and that he was entitled to celebrate divine service according to the former canons; and (3) for damages for injury done to him through his bishop refusing to license a curate, engaged by the pursuer, who would not subscribe the new canons. Averments which Held not relevant or sufficient in law to support the conclusions of the libel,
Observed, per Lord Lord Justice-Clerk (1), That if a society, whether for secular or religious purposes, is bound together by articles of constitution, the general rule of law is, that the majority may be restrained, on the application of the minority, from carrying into effect any fundamental alteration of such articles. (2) That there may be cases of breach of contract where the party complaining has no such interest to enforce the contract as can be recognised by court of law. (3) That there may be a distinction, arising from difference of interest, between the title of a lay and of a clerical member of a dissenting communion, to complain of a violation of the fundamental articles of the association.
Observed, per Lord Cowan, that to entitle a party to call upon the Court to adjudicate upon the acts of a voluntary church court in matters ecclesiastical, he must set forth some civil wrong, justifying a demand for redress, or patrimonial injury, entitling him to claim damages.