Adam Luke and Others - Dr. Lushingto - Wright v. The Magistrates of Edinburgh and Rev. John Hunter - Lord Advocate (Jeffrey - Simpson [1832] UKHL 6_WS_241

UKHL
Adam Luke and Others - Dr. Lushingto - Wright v. The Magistrates of Edinburgh and Rev. John Hunter - Lord Advocate (Jeffrey - Simpson
[1832] UKHL 6_WS_241 · 1832-08-15
Held (affirming the decree of the Court of Session) that the town council of Edinburgh, as patrons, were entitled to appoint an assistant and a successor to a minister who was disabled by age from performing the duties of the office, the minister giving his consent to the appointment.

Subject_ Process —

Although a party found on a fact in his summons, yet if he do not do so in his condescendence he cannot afterwards avail himself of it.

Subject_ Appeal. —

Opinion intimated, that, where the pleadings in the Court below entitle a party to insist on an objection, the House of Lords are not barred from deciding the appeal upon that objection, though it may not have been pressed in the Court below, and though it form no part of the consideration of that Court in pronouncing the interlocutor appealed from.The Rev. Dr. Simpson and Dr. Brunton were incumbents of the church and parish of Tron, in Edinburgh, which is a collegiate charge, but of which the Town Council are the patrons. In April 1829 Dr. Simpson, who was at this time eighty-five years of age, owing to decline of health, wrote, with the concurrence of Dr. Brunton, to the Lord Provost, requesting to have a minister associated with him as assistant and

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Mr. Hunter was presented, and his presentation was sustained by the presbytery and affirmed by the synod, and afterwards by the general assembly, to which it had been appealed.In the meanwhile the appellants, as dissenting members of the town council and elders of the kirk session, raised an action of reduction of the acts of the council, and presentation against the other members of the town council, Dr. Simpson and Mr. Hunter.During the discussion of the reduction Dr. Simpson died, and thereupon a separate action was raised of reduction of the presentation, and a declarator of the right to present to the incumbency, as having become vacant by Dr. Simpson's death. This action was conjoined with the first, and when the conjoined actions came before the Lord Ordinary, his Lordship sustained the defences, and assoilzied, with expenses, and issued the following note, in which the facts are fully detailed:—discharge the duties as minister of the Tron Church of Edinburgh, and that he was desirous, if the town council approved of it, of having an ordained minister of experience appointed assistant and successor to him. The proposal lay a week on the table of the council, and was then approved of. Dr. Brunton, the collegiate minister of the same church, expressly consented. On the 13th May 1829 the council resolved to present Mr. John Hunter, a person in all points qualified; and no step having been taken to prevent this, a presentation was given to him on the 10th June 1829. That presentation was regularly sustained by the presbytery, without any objection having been stated by any private party. Then a question on the ecclesiastical merits of the case arose among the members of the court themselves, and was terminated by a final judgment of the general assembly 1830, holding the presentation to be good, but, as an action of reduction had been raised on the eve of the sitting of the assembly, superseding the induction till the issue of that process, according to the uniform practice since the case of Lanark. explicit as to the effect of the judgment of the church courts, and no civil impediment having been previously attempted. But the Lord Ordinary does not rest his opinion on this, though he has yet heard no good answer to it. vagum, either practically or theoretically; no such thing as plurality of benefices; no such thing as a minister ordained without a cura animarum, to which he is appointed for his life. from the appointment of assistants and successors in any other case. And it must be kept firmly in remembrance, that it is attended with the most important securities against abuse. The consent of the existing minister, at least if he is capable of consent, is indispensible. The patron of course must consent; but when these two are agreed, the consent of the presbytery, and, if called for, of the synod and general assembly, must be obtained. The whole question of reasonable necessity, expedience, and propriety undoubtedly belongs to these courts; and if they think the measure improper, or an abuse of the patron's right, they certainly have power to put a negative on the proposal. And practically the statement of the pursuers, as to the small number of such appointments, compared with the number of livings and vacancies, while the legality of them has been recognized for a century, demonstrates that these checks have been effectual, that the practice has been kept under due control, and that there is no evil or abuse involved in it. of the town council of Edinburgh. In not one of all the cases was the legality of the appointment, as matter of civil right, disputed. The Lord Ordinary holds this alone to be decisive of the general question —an admitted and unchallenged practice over the whole church during ninety years. It might have been more extensive if any serious abuse had been practicable; but if the control is efficient, the extent of the practice is of course limited by the necessity. vested in the benefice, as decided in Shaw v. Heritors of Robertson , 29th January 1806. But his character was clearly recognised as a lawful status, otherwise no consent of the heritors would have warranted the proceeding. proper authority. That is not a presentation to an expectancy, but to an immediate cure, and at any rate it is a special case fully established by a long usage. not intended or expected that Dr. Flint, junior, should immediately, or at any given time while his father lived, enter on the duties of the office. And 6th, it was, in its circumstances, liable to other very serious objections. But while these considerations plainly place the decision, the particular grounds of which are nowhere reported, on a footing which entirely removes it from the principles of this case, it is to be remembered that it was only in the previous session of parliament (1808) that the statute 48th Geo. III. was passed, in which all grants of offices in reversion were prohibited, with the express exception of the appointments of assistants and successors to the parochial clergy of Scotland, while no such exception was made of similar appointments to professorships. occur, the council for the time is just as competent to present a fit person for the benefit of the public as any council which succeeds them can be presumed to be. If they do not take due pains, that is their fault, and in a question of law is not to be presumed. They are to exercise the power (as Dr. Simpson expressly asked them to do) precisely as they would if there was a vacancy by death.
“The Lord Ordinary has considered this case with care, because it has been treated as a case of importance. It is undoubtedly a case of great importance in some views of it; but he should not do justice if he did not state that it is a case in which he has never entertained the slightest doubt.
The material facts are simple: Dr. Simpson, at the age of eighty-five, intimated to the town council that he had no hope of being able to continue to

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Mr. Hunter's induction was prevented solely by the proceedings in the church courts, to which the pursuers were no parties; and if he had been inducted there must have been an end of the matter.The first reduction was not brought till after the presentation had been sustained by the presbytery, and their sentence had been affirmed by the synod. There seems, therefore, to be much ground for the plea, that the pursuers had no right afterwards to insist in any reduction, the act 1567, c. 7. being

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The main question is, had the town council, the undoubted patrons, power, on the application of Dr. Simpson, to grant the presentation to Mr. Hunter? There is no difficulty in form. The particular objections stated appear to be groundless, and were scarcely insisted on at the bar; and the presentation is in the usual form in such cases. The question is, have the patrons power to make the presentation to the effect of warranting the presbytery to ordain or admit Mr. Hunter as minister, assistant, and successor in the parish.The case has been argued to the Lord Ordinary on a denial of the legality of this in any parish. He is humbly of opinion that the plea is untenable as matter of law, and irrelevant and groundless in any other view.In order to take a right view of this question it is necessary to attend to the genius and constitution of the church of Scotland. It cannot justly be tried by any reference to the rules or the proprieties applicable to establishments of a different nature, or by analogies drawn from offices of a different character. The fundamental principle of the Scottish church is that every man admitted into ecclesiastical orders, every man ordained as a minister, must be ordained as actually the minister of some parish or of a chapel district precisely fixed. There is no such thing in the church of Scotland as ministerium

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From this principle, fixed at the reformation, difficulties have naturally arisen when ministers fall into great age or infirmity. These difficulties are lessened by the practice of allowing candidates for the ministry to preach after being licensed by the presbytery. But these are not and cannot be ordained ministers, enabled to administer the sacraments, and to discharge other duties dependent on ordination; and still, therefore, in many special cases a different remedy was required. That remedy was found, at an early period, in the plain, simple, and very sensible expedient of the presentation and induction of a fit person into the condition of a minister of the parish for his life as assistant and successor to the existing incumbent. The person so appointed becomes immediately an ordained minister of the church, subject to all the obligations implied in the character. He is received as a member of the presbytery and synod, entitled to vote whenever the principal is absent, and eligible as a member of the general assembly. These things are beyond all doubt, and are sanctioned by at least a century of undisputed practice.It is manifest, therefore, that the institution of assistants and successors in the church of Scotland, introduced from a necessity inherent in the very constitution of the church, and for the advantage of the people, has no resemblance or affinity to grants of offices in reversion, and is essentially different even

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It is admitted on the record that there is a series of examples to the number of forty-three, well authenticated, of assistants and successors so appointed, from 1742 to the present time. There is reason to think that the practice was introduced much earlier. See note in Connell on Parishes, p. 515. These examples run over the whole church and country. They comprehend royal boroughs as well as country parishes:—Glasgow, Dumfries, Montrose, Cupar, Ayr; and one of the last instances, though in a country parish, was by the presentation

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But there is much more in the case. In the first place, the legality of such appointment has been recognised by the church courts. The assistants and successors have not only been duly ordained and inducted, but they have been recognised as members of all the church courts, exercising the most important rights, both ecclesiastical and civil. They have been incorporated in the constitution of the church, and public acts to which they are parties have been recognised in all the civil courts. In the next place, they have been expressly acknowledged as holding a legal status, both by the Court of Session and by the Court of Teinds. See Connell on Parishes, pp.517–18. Case of Cadder; Muir v. Dunlop , 9th December 1791; and Campbell v. Stirling , 4th March 1813. And see the case of Melrose, Connell on Tithes, vol. i. p. 455, where a process of augmentation having been brought by the principal minister, and the augmentation having been refused to him, the Court, on a petition by the assistant and successor, and with the consent of the heritors, awarded an augmentation to him out of the teinds. He could not indeed have raised the process, because he is only conditionally

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In the third place, these assistants and successors have been recognised in various British statutes. They are so in the acts establishing the Widows Fund, 17th Geo. II. (1744) cap. 11. sec. 11., 22d Geo. II. cap. 21., and 19th Geo. 3. cap. 2. sec. 9. Their status as churchmen is, therefore, sanctioned by statutes in full force ever since 1744. They are to be deemed and taken to be ministers to all the purposes of the acts. But the later statute of 48th Geo. III. cap. 50., relative to grants of offices in reversion, is still more important, as containing an express exception from its provisions, which it is assumed might otherwise have been taken to apply to the case, “that nothing in this act shall extend, or be construed to extend, &c., to prohibit the appointment of assistants and successors to the parochial clergy of Scotland.”It seems to the Lord Ordinary to be quite impossible, in the face of these facts, and without a single authority or decision on the point, to maintain that such appointments, when duly proceeded in, are illegal. The passages in Erskine and other authors which are quoted, only announce the undoubted general truth, that no patron can present to the expectancy of a benefice. This plainly does not contemplate the special case of the immediate induction of an assistant and successor into the whole duties of the parish on a declared necessity by the

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Neither do the cases referred to by the pursuers appear to have any material application to the question. The only one to which it seems necessary to advert is that of Arnott, &c. v. Flints , &c., as decided by the House of Lords 26th May 1809. Though that case was much relied on by the pursuers it humbly appears to the Lord Ordinary that it can afford them no aid; for, 1st, it was the case of a professor in a university. That is altogether different from the case of a minister of the church; it has not in it the important quality, that without ordination the full duties of the place cannot be performed. Neither has it the same sanctions; and each university, being independent of all the rest, may be only affected by practice within itself. 2d, the very case of assistants and successors in the ministry is expressly acknowledged as beyond dispute lawful by both the parties in that cause. 3d, it was the case of a professorship, where the other professors were the patrons, and where consequently there could be no jurisdiction to control an abuse. 4th, the King being the visitor of all colleges, it might be competent to the King's Courts to control the exercise of the right of patronage in such a case, and more especially to determine whether it was warranted by the terms of the endowment, which was one of the points put in issue. 5th, it was plainly a case of the grant of an expectancy; for the very terms of the appointment showed that it was

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If the general plea of the pursuers against the legality of such presentations cannot be sustained, it seems to be clear that there is no specialty which can avail them. The town council of Edinburgh have the same powers as other patrons; and, the question being one which relates to the church at large, it can be of no consequence whether the practice has been followed or has been frequent in Edinburgh or not. What has been law for Glasgow, Ayr, &c., and generally over Scotland, must be law also with regard to the powers of the patrons of Edinburgh in this matter. They have power to present upon actual vacancies by death, &c., and they have power to present assistants and successors, when the cases which render this necessary or expedient arise. And the Lord Ordinary can see no evil or danger in this. For, the question of expediency being subject to the control of the presbytery, when the case does

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As to the statement of this being a collegiate church, Dr. Brunton being fully competent to the whole duties, &c., the Lord Ordinary thinks them altogether irrelevant in this Court. They were very fit to be stated to the presbytery, if the pursuers thought them of importance; and, though the pursuers did not state them, it has been stated by the defender that they were fully canvassed in all the church courts. As the church or parish has two ministers by law, it must be presumed that two in full orders are necessary, and this may very well be, from the nature of the population, though the parish be not large. Dr. Brunton is also a professor in the University; but though he had not been so, he had a right to an efficient colleague, and Dr. Simpson was eighty-five years of age.The church courts, therefore, having confirmed the appointment, and ordered the induction, the Lord Ordinary is of opinion that all questions of particular expediency are excluded, and that the case must stand on the same footing as if it had arisen on the last presentation of an assistant and successor given by the town council of Edinburgh, or on such a presentation by any other patron, which had been sustained by the presbytery.”

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Luke and others reclaimed, but the Court unanimously adhered * ; and the present appeal was brought.Appellants .—1. The appointment was not validly made, because there was no legally constituted meeting of the council, the deacons not having been duly summoned to attend. 2. Supposing there was a legal meeting, still the town council, as patrons of the parishes of the city of Edinburgh, are only authorized to present upon an office or benefice becoming vacant, because until that event happens any step taken by an existing town council to appoint a successor becomes an assumption of power not vested in them, but remaining with the community to be brought into operation through the medium of the council existing when the vacancy arises; besides, an appointment to a benefice by anticipation is illegal, inexpedient, and prejudicial to the interests of the church and of the community. †Respondents .—1. There are no facts stated in the record relevant to raise the objection to the validity of the meeting of the council, and it was not pleaded in the Court below. It is therefore incompetent, and besides is not well founded. 2. By the law and practice of Scotland an assistant and successor may be named by the patron when the circumstances of the parish require it, although the benefice be not vacant; and in this matter there is no distinction in principle, and none has

Footnote

* 10 Sh. & D. 307.† Appellant's Authorities .—Amott, 26 May 1809 (Appeal Papers, Adv. Lib.); 1 Ersk. 5, 11; Stuart, 24 Jan. 1677 (9899); Connell (Parishes), 514; L. Garbet, 15th Dec. 1693 (13115).

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Lord Chancellor .—My Lords, in this case of Luke and Hunter two questions were raised at your Lordships bar, one of which only appears to have undergone full discussion in the Court below. The first question, and that which was not discussed in the Court below, relates to the legality of the meeting of the town council of Edinburgh, at which the appointment in question took place. To the legality of that meeting objections have been taken at your Lordships bar upon two grounds; in the first place, that the proper members of the council were not present, namely, the deacons; but chiefly upon the ground that the proper summons was not given to all those deacons to the council; for it appears to me, if that summons had been regularly and legally given, which it is denied had been given, their absence would not have rendered the meeting illegal, and that consequently that objection would fail. But it was said, that inasmuch as there was a deficient summons of these deacons the meeting of the town council was not legally called and constituted. I was inclined to think there was a great deal which deserved consideration in this objection, which certainly had not been taken, or if taken, was almost immediately abandoned in the Court below. There appears upon the face of the Lord Ordinary's most elaborate and learned interlocutor enough to

Footnote

* Respondent's Authorities .—17 G. II. c. 11. § 11; 22 G. II. c. 21; 19 G. III. c. 2. § 9; 19 G. III. c. 20; 48 G. III. c. 50. Connell (Parishes), 514; Dunlop, 9 Dec. 1791 (7470); Campbell, 4th March 1813. (F. C.)

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intimation that there is to be no meeting in any particular week or weeks;””

“The Lord Provost appoints the magistrates and council, and extraordinary deacons, to meet every Wednesday at twelve o'clock, without any warning, for the despatch of business, unless they get

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and then the respondents add, “an intimation or warning to the above effect is always given after the election of magistrates, and is entered in the annual record, and no other warning is ever given to these parties to attend.” Here, therefore, is a distinct averment, in point of fact, on the part of the respondents, that the usage is perfectly conformable to what is admitted to be the fact in the present case; and it is so distinctly averred, that if it had been admitted on the other side there would have been no mistake as to that important fact. But, unfortunately, that is not admitted, but denied; for the pursuers in their answer admit, “that after the annual election the council and deacons are directed to meet every Wednesday, but it is denied that this is the only notice that is given, or that the practice is as here set forth;” and they say “in whatever form it may be done, due intimation is always made when any extraordinary business is expected to be brought forward.” Therefore, in the first place, there is no admission of the usage, and in the next place, there is an issue taken upon the fact of the usage; and there being no admission, and that issue not being tried, your Lordships are left in this case, as you are in too many of a similar kind that come from Scotland, extremely short of facts, where facts are necessary to dispose of the question. Now, my Lords, that being so, we are to exclude the usage from our consideration, as if it were not to be found within the four corners of this statement, and we are therefore to go upon the decreet arbitral of King James, and the decreet arbitral of Lord Islay, and upon those we are to satisfy ourselves in the

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This brings me to the other branch of the case; and as I agree in the judgment to which the Court below came it will not be necessary for me to trouble your Lordships at any great length. The question is one of very great importance, but, as it appears to me, one of much less difficulty. That question is, can a patron validly appoint an assistant and successor to a clergyman whom he has already placed in the Scotch kirk while that clergyman continues in that church and has not rendered it vacant by his resignation? I regard with the greatest possible respect the authority of that most learned and excellent Judge from whose interlocutor in the Court below this appeal has been brought,—I mean Lord Moncreiff,—one of the most learned individuals who adorn that bench, or who ever adorned that bar, and peculiarly qualified to decide this question, from the whole habits of his life; and I entirely agree with the Learned Chief Judge of the Court

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The House of Lords ordered and adjudged, That the said petition and appeal be and is hereby dismissed this House, and that the said interlocutors therein complained of be and the same are hereby affimed: And it is further ordered, That the appellants do pay or cause to be paid to the said respondents the sum of 200 l . for their costs in respect of the said appeal.Solicitors: Spottiswoode and Robertson— Richardson and Connell, Solicitors.