John Cairncross and Others v. James Lorimer and Others [1860] UKHL 1
Subject_ Church — Dissenting Congregation — Right to Chapel — Personal Bar — Acquiescence — Mora.another with which the congregation had formed a union, inasmuch as there had been acquiescence and consent of such minority another with which the congregation had formed a union, inasmuch as there had been acquiescence and consent of such minority . 1A congregation of dissenters, by their trustees, held the property of their church under a trust to adhere to A congregation of dissenters, by their trustees, held the property of their church under a trust to adhere to “ the original principles of the Secession the original principles of the Secession .”Held (affirming judgment), That members of the congregation, forming a small minority thereof were barred from claiming restitution of the church That members of the congregation, forming a small minority thereof were barred from claiming restitution of the church , which, by a resolution of the congregation, had been separated from the religious body to which it originally belonged, and annexed to which, by a resolution of the congregation, had been separated from the religious body to which it originally belonged, and annexed toPage: 985 ↓
Certain persons as trustees, (including the pursuers Cairncross and others,) in 1829 took a disposition of a meeting house and other subjects to be held in trust for the Associate Congregation of Original Seceders in Carnoustie, in connexion with the Associate Synod of Original Seceders, and adhering to the original principles of the Secession as set forth in a book specified. One purpose of the trust was, that the houses should belong solely to those who continued “in adherence to the foresaid original principles of the Secession.”In 1842 the Associate Synod of Original Seceders, on uniting with other dissenters, took the name of “The Synod of United Original Seceders.” The latter Synod in 1852 joined the Free Church of Scotland, and so did the defenders Lorimer and others. The Carnoustie congregation resolved to join the Free Church, and the defenders, as the majority, kept possession of the meeting house. Other members of the congregation, including the pursuers, raised this action to recover possession, on the ground that they alone represented the original principles of the Secession, for whose benefit the property was disponed in 1829, and that the defenders had forfeited all right to the property. The defenders pleaded, that in 1852 the congregation agreed without any dissenting voice to the junction with the Free Church, and it was too late now for the pursuers to claim the property.The Court of Session held, that the pursuers were barred by acquiescence, and assoilzied the defenders.The pursuers appealed, maintaining, in their case, that—1. The appellants, as members of the congregation of United Original Seceders at Carnoustie, and as the persons for whose use and benefit the chapel and other property was provided, were entitled to insist, that the property should be applied to its destined uses, and not diverted therefrom. 2. The appellants, John Cairncross and William Kidd, being two of the trustees in whom the property of the chapel is vested, it is not only their right, but their absolute duty, to maintain the purposes of the trust, and prevent them from being violated or defeated. 3. The appellants, whether as members of the congregation or as trustees for its behoof, could not bind themselves, either expressly or by implication, to consent to the purposes of the trust being altered or subverted. 4. The facts and circumstances founded on by the respondents did not support the plea of personal bar, on which the respondents relied, even supposing such plea to be relevant in the circumstances. 5. Even supposing, that the appellants had, without due consideration, assented to the union with the Free Church, or acted in such a way as to imply such assent, still, on being better advised, they would be entitled to retrace their steps, recur to the written terms of the trust, and insist on these terms being strictly carried out.The judgment of the Court of Session was supported on the ground that—1. The appellants acquiesced in—at all events did not tempestivè tempestivè dissent from—the union with the Free Church, and were by their conduct barred from insisting in the action. 2. The respondents, being ready to comply with the test of adherence prescribed by the title, could not, on the ground of nonadherence, be deprived of their right to, and enjoyment of, the property in question.R. Palmer R. Palmer Q.C., and Neish Neish , for the appellants.—The judgment of the Court below was wrong. The trust was plainly declared to be, that the property was to be held for the use of the United Original Seceders, and those who adhered to those principles, and it was competent for any of the beneficiaries to enforce the trust, or take steps to prevent its breach. It was not competent for any number of the trustees, however numerous, to alienate the property to a different purpose, against the consent of any one of the beneficiaries—the Kirkintilloch case case , Craigie v. Marshall , 12 D. 523. In such a case it is immaterial whether the majority of the beneficiaries agreed in the breach of trust, or whether a long time has elapsed. This is like a suit by the Attorney General in England for the misapplication of charity funds— Attorney General v. Munro , 2 De G. & Sm. 122. Here the appellants were justified in raising this action, and even if some delay and misunderstanding have been established against them, they are not estopped from maintaining the action. The plea of personal bar, even if it were proved, would be inapplicable in such a case as the present— Thompson v. Candlemakers , 17 D. 765. But even admitting that a personal bar is to be admitted to proof, there was nothing in the conduct of the appellants which amounted to anything like acquiescence or waiver of their clear rights at law— Rochdale Canal Co. v. King , 2 Sim. N.S. 89; Clarke v. Hart , 6 H. L. Cas. 633.The Lord Advocate Lord Advocate (Moncreiff), and Anderson Anderson Q.C., for the respondents, contended, that the appellants were barred by their conduct from insisting in the action— Craigdallie v. Aikman , 6 Paton's Rep. 635; Picard v. Sears , 6 A. & E. 469.Cur. adv. vult Cur. adv. vult .Lord Chancellor Campbell .—My Lords, in this case I am of opinion, that the unanimous judgment of the Inner House in favour of the defenders ought to be affirmed. The counsel forFootnote
1 1 See previous reports 20 D: 30 Sc. Jur. 611. S. C. 3 Macq. Ap. 827: 32 Sc. Jur. 711.Page: 986 ↓
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Lord Kingsdown .—My Lords, having had an opportunity of hearing and considering the opinion which has just been expressed by my noble and learned friend on the woolsack, it is I unnecessary for me to say more than that I concur both in the conclusion at which he has arrived, and in the principles upon which that conclusion is founded. The question is not what I would be the result, if the information had been filed in this country by the Attorney General, or if a similar proceeding had been taken by the Lord Advocate in Scotland, if he had such a power (I do not know whether he has or not). I regard this as simply a suit instituted by these parties in respect of their own individual interests; and, in respect of those interests, I think that they are precluded by their own conduct from maintaining this action.Interlocutors affirmed, and appeal dismissed with costs Interlocutors affirmed, and appeal dismissed with costs .Solicitors: For Appellants For Appellants , Deans and Rogers, Solicitors, London; James Finlay, S.S.C., Edinburgh.— For Respondents For Respondents , Dodds and Greig, Solicitors, London; Auld & Chalmers, W.S., Edinburgh.