Scottish Court of Session Decisions

Subject_1 TITLE TO PURSUE.

Bryson, &c
v.
Wilson, &c

1752, June 30.
Case No. No. 1.

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The petitioners, and other seceders, having bought ground to build a meeting-house on it, chose the defenders trustees, in whose names the rights were taken, who granted back-bond to denude in favour of Mr Adam Gibb, their then Minister, and his successors in office, and the persons who had contributed to the purchase, or in favours of any person, whom Mr Gibb and his successors and other members of the session, and the said contributors, shall by plurality of voices nominate, in a meeting to be called for that purpose and intimated from the pulpit of said congregation at least ten days before the meeting. This congregation afterwards split on the subject of the burgess-oath, and those trustees differed from Gibb, who was against the oath, and therefore wanted to denude them of the trust, and for that end intimated a meeting of the session and contributors, and there, by a great majority, other trustees were chosen, who sued the other trustees, Wilson and Bayne, to denude. They objected to the pursuer's title, that the associate congregation or session was no body-corporate or politic that could sue or be sued, or chuse a trustee to sue for their behoof. Answered: That any number of persons may chuse a trustee to take a right in the name of that trustee for their behoof, and that person may be bound to denude to any other trustee to be chosen by them, and therefore though the associate congregation be not a name known in law, yet the persons contributors might sue either in their own name, or in name of any trustee to be chosen by them, as the inhabitants of a village might do, or the free masons, or the musical society, or a company and society of merchants, as the proprietors of the glass work; and that the pursuers were chosen in terms of the back-bond by a majority of contributors. I repelled the objection, and sustained the title. But on a reclaiming bill and answers, the Lords this day, (30th June 1752) found that the pursuers had no legal title to pursue, their constituents being no legal congregation. For the interlocutor were Minto, Drummore, Justice-Clerk, Shewalton, Leven, and President, Against it were Kames, Murkle, Woodhall, and I. 16th November, The Lords adhered, renitent. Milton, Kilkerran, Woodhall, et me; and 2d January 1753 refused a bill of suspension of the builders against Gibb to deliver up the key.