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Cite as: [1834] CA 13_108b

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SCOTTISH_Shaw_Court_of_Session

Page: 108↓

Anderson

v.

Muir No. 39.

Court of Session

2d Division T

Nov. 29 1834

Ld. Moncreiff, Lord Justice-Clerk, Lord Glenlee, Lord Meadowbank, Lord Medwyn.

Alexander Anderson, Complainer.— Maitland. William Muir, Respondent.— More.

Subject_Poor—Public Officer.—

Circumstances in which a complaint against a session. clerk, for refusing to receive a petition for relief, addressed to the “ heritors and kirk.session” of a parish, was dismissed.

In the parish of Dysart, there is no assessment for the poor, and the heritors are not in use to attend meetings regarding the management of the poor, which is left entirely to the kirk-session, the session-clerk officiating as clerk in regard to all matters connected therewith. In the year 1831, the wife of an inhabitant of the parish who was at the time absent at the herring fishery, bore a child, and died immediately thereafter. The child was thereupon given in charge, by two elders of the parish, to the complainer, William Anderson, and his wife. At first some slight allowance was made for it by the parish, but this being discontinued, Anderson, on the 27th November, 1832, presented a petition to the kirk-session, praying for remuneration, and to be relieved of the child. The session declined to give any written deliverance on this petition, it being contrary to their practice to do so, but they intimated to Anderson personally, that his application was refused. With a view to obtain a written deliverance on a formal petition, which he might bring under review of the superior court, Anderson had a second petition prepared to the same effect as the former, but addressed to “ the heritors and kirk-session,” as being the proper body intrusted by law with the management of the poor. This petition was, on the 28th January, 1833, lodged with Muir, the session-clerk, accompanied by a letter from Anderson's agent, requesting Muir to call a meeting of heritors and kirk-session. Muir laid this petition before the session, who (according to Muir) directed it to be returned to Anderson, on the ground of its being addressed to the heritors jointly with the session, and not to the session alone; and it was accordingly returned to him, without any deliverance. Application was then made by Anderson's agent to the Rev. Mr Murray, the minister, who in his answer referred merely to the merits of the claim, which he considered unfounded; and he stated, inter alia, “I need not call a meeting either of the heritors or kirk-session, for I am sure that they will have nothing to do with the case.” Thereafter, agents in Edinburgh were applied to by Anderson, to have legal proceedings instituted for the purpose of obtaining redress, and they, before taking any legal steps, entered into a correspondence with the minister, which issued in a letter from his agent, in these terms:—“Gentlemen, I am desired by the Reverend Mr Murray, minister of Dysart, to inform you, that the petition for Alexander Anderson, at Boreland, to the kirk-session of Dysart, was returned to him, but that if he will now lodge it with the session-clerk, it will be laid before the members of the session for their consideration.”

On this, a petition, similar to that which had been returned, and addressed, like it, to the heritors and kirk session, was tendered to Muir, but he refused to receive it, on the ground that, being merely session-clerk, he could not receive a petition directed to the joint body of heritors and kirk-session, and that be had been instructed by the session not to receive any petition so addressed. Anderson thereupon presented to this Court a petition and complaint, containing the following prayer:—“May it therefore please your Lordships to appoint this petition and complaint to be intimated to the said William Muir, as session-clerk of Dysart, and him to lodge answers thereto within a short period; and thereafter, upon advising the petition and complaint, with or without answers, to find that it was the duty of the said William Muir, as session-clerk of the parish of Dysart, to receive the petition presented to him by the petitioner, and to lay it before the kirk-session and heritors of the parish of Dysart, in regular meeting assembled; and to ordain and appoint the said William Muir immediately to receive the said petition, and to lay it before the next meeting of the kirk-session and heritors, in order that the petitioner may obtain a deliverance thereon, to find the respondent liable in the expenses of this application; and to do farther or otherwise in the premises as to your Lordships shall seem just.”

To the competency of this petition, Muir objected, and pleaded—

It has never been the practice in the parish of Dysart for the heritors to meet along with the session, in regard to the management of the poor. There is no assessment, and the poor are maintained exclusively out of voluntary contributions, under the sole administration of the session, whose clerk alone the respondent is, the heritors having a separate clerk of their own. The respondent, therefore, was not bound to receive a petition addressed to the joint body, with which he had no connexion; and, at any rate, if he had committed a wrong in refusing it, the corn-plainer should have applied to the minister and session, as the respondent's immediate superiors, and not have come at once to the Supreme Court.

To this, it was answered—

The only administrators of the poor acknowledged by law are the joint body or court of heritors and kirk-session, who alone can consider and determine on any legal claim for relief, whether that it is to come out of funds raised by assessment, or voluntary contribution; and although no heritors may choose to attend, all meetings for administering the poor's funds must of necessity be meetings of the joint body, who alone can exercise any jurisdiction therein. The petition here, therefore, addressed to the heritors and kirk-session, was the only competent form of petition; and the session-clerk, who had always acted in this parish as clerk in matters regarding the poor, and who, by the universal usage of Scotland, is the clerk of the joint body of legal administrators, unless another be specially appointed, and whose salary has in consequence been found a legal charge on the poor's funds, ¹ was bound to have received the petition, and to have laid it before the first meeting relating to the administration of the poor's funds, which must of necessity, in the eye of law, have been a meeting of the joint body, though no heritors might foe present. Then as to the plea that the complainer should hare complained

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¹ Hamilton, Nov. 28, 1752 (M. 10576).

to the minister and elders, he himself stated that he acted by their directions, so that the only source of redress open was this Court, to whom, besides, it is competent to apply, in the first instance, in regard to malversations or neglect of duty, on the part of clerks of inferior courts, as well as other public officers. ¹

The Lord Ordinary reported the cause, adding the subjoined note. ^* On first advising it, their Lordships were equally divided—Lords Justice-Clerk and Glenlee being for dismissing the complaint, and Lords Cringletie and Meadowbank for sustaining it. The cause accordingly stood over till this day for further consideration—Lord Medwyn having been, in the meanwhile, brought into the Inner House, in place of Lord Cringletie, who had resigned. ^†

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¹ Angus, Feb. 1751 (M. 14976); Campbell, July 10, 1824 (ante, III. 245); M‘Farlane, March 6, 1827 (ante, V. 537), affirmed in House of Lords, except as to the extent of penalty imposed, April 8, 1830 (4 W. and S. 128).

* “This seems to the Lord Ordinary to be a very groundless, if not an incompetent complaint. It is now admitted in the minute that the complainer had made his claim to the kirk-session, that they had it regularly before them at a meeting, and that he was personally called into their presence on the subject. If they did not duly consider it, or hear him on the grounds of it; or if they unduly refused to make a written deliverance, that surely was no fault of the session-clerk, and the complaint should have been against the kirk-session. He states, that in fact the complainer was fully heard, and allowed more than once to say all that he had to say; and that it is not the practice of kirk-sessions to make written deliverances on such applications, which is certainly true. But assuming all this to stand otherwise, no responsibility could lie with the clerk. Then it appears that the complainer and his agents were in direct communication with the minister, Mr Murray, on the subject, and were distinctly told, that if the petition for the complainer to the kirk-session, which had been given back to him, were ‘returned to him,’ it would be ‘laid before the members of the session for their consideration.’ This was on the 5th September. Instead of following this plain course, the complainer, on the 26th September, sends to the respondent, the clerk of the kirk-session, a petition, not addressed to that body, but to the heritors and kirk-session, to which joint body he never was clerk, and which he had no power to call together. The respondent says that he refused to receive it, because he had been instructed so to do by the minister and kirk-session, in consequence of another similar petition, which had been previously laid before them. But supposing that it were otherwise, why did not the complainer himself apply to the minister, if he thought such a petition competent, or that the respondent had done wrong in refusing to receive it? And now when the complainer, instead of applying to the respondent's superiors, comes to the Court of Session with this complaint, the question is, whether the respondent is liable to any complaint for not receiving a petition addressed to a body for whom he was under no obligation to act, and whom it did not belong to him to constitute or convene in the parish? The Lord Ordinary thinks that he clearly is not; and he must own that he finds it difficult to account for a complaint being presented in such circumstances.”

^† Lord Cringletie's opinion, delivered at the first advising, was as follows: “I hold the session-clerk to be the clerk of the joint body of heritors and kirk-session, as to matters regarding the poor. Now there was a petition to the session, which was considered by them, because if the heritors do not attend, the session may act without them, and Anderson was given to understand that it was refused—no written deliverance being in use to be given. He then presents a new petition, addressed to the heritors and kirk-session. That is certainly the proper address, and the complaint is, that the clerk would not receive it at all. Now, I cannot help considering that very extraordinary, as by the previous letter of the minister, it was directed to be given to the clerk, who, nevertheless, refuses to receive it. It may be, that on the merits, the application should have been to the Sheriff, to compel the heritors and kirk-session to relieve the complainer of the child, but that would only go to establish that the petition was incompetent. Is the clerk, however, entitled to judge of this, and to refuse to receive it on that ground? I think not. That is no province of his; and I am therefore of opinion that the clerk should have received the petition, and that the complaint should be sustained.”

Lord Justice-Clerk.—My view of this case is, that, admitting every thing maintained by the complainer as to the law, the question is, whether this is a complaint which ought to he sustained. Now, when I look at the petition, and see that it was accompanied with a letter requiring the clerk to call a meeting, and that the complaint prays to have him ordained to receive the petition, “and to lay it before the heritors and kirk-session of Dysart, in regular meeting assembled,” I am bound to ask if the session-clerk has any right to do what is asked? It is clear that he has no right to call a meeting of the heritors and kirk-session fur any purpose whatever. Mr Dunlop lays down the law correctly on this point, that it is the minister who convenes such meetings. There is no foundation for holding that the session-clerk, even if he be held clerk of the joint body, as to which it is unnecessary to decide, has power to convene. Then, can a complaint resting on such foundation be sustained? I think not.

Lord Glenlee.—I Concur. ^*

Lord Meadowbank,—I remain of the opinion I formerly entertained, which differs from that expressed; and thinking this a case of importance, I shall state the grounds of my opinion. I do not enter into the merits of the original claim, which has nothing to do with the competency of the complaint, but will only say, that it does appear to me from the authorities, that the only court this party had to apply to in the first instance, was a joint meeting of the heritors and kirk-session. In the next place, it appears to me undoubted, that whether the funds arc collected by voluntary contribution at the kirk door, or levied by assessment, they can only be legally distributed by a joint meeting of the heritors and elders legally convened. There is no compulsitor to compel attendance; and if certain members

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* At the first advising, Lord Glenlee gave his opinion thus: “There are a number of points discussed, which I thought it unnecessary to decide. The requisition to the clerk was, that he should himself call a meeting. I have no idea that he can do so of his own mere authority, and without that of the minister. I cannot therefore find that there was any neglect of duty. The complainer did not content himself with lodging the petition, but required the clerk to call a meeting himself. On other grounds, I do not think that this is a proceeding to procure justice to the man. It is admitted he was told that the petition was refused, which was quite enough, as on that narrative he might have gone to the Sheriff to get an order on the heritors and kirk-session to meet and consider his claim. On the whole, I am inclined to dismiss the complaint, as I rather think that the whole object of the proceedings was to bring Mr Muir into a scrape.”

of the joint body do not attend, the act of the individuals who do attend is the act of the heritors and kirk-session. And I state it with deference, that no, advocation would be competent from the determination of the kirk-session alone as such, and we could only entertain it as complaining of the decision of the heritors and elders. Then, further, it appears to me of importance to the decision to consider what is the proper character of Mr Muir designated as session-clerk. Now the session, as a session, have no funds under their control, except some fees inadequate to his support; but his salary is paid out of the poor's funds, and the person so appointed is clerk of the joint meeting, who alone can give authority to pay his salary. In meetings of session alone, the clergyman is vi legis moderator, hut at those of heritors and kirk-session, he is not chairman. It is in vain to say that because there was never a joint meeting for the distribution of poor's funds at Dysart, he is only clerk of the session. The meetings for administering the poor's funds must have been meetings of the joint body, and be must have been clerk to the heritors and kirk-session; and his own conduct officiating as clerk at such meeting prevents his maintaining that he is not. In deciding this case, we have only to consider, not the preliminary steps, but the proceedings now complained of. Now, it appeals that the minister is the proper convener of meetings of the heritors and kirk-session. Then he directs the agent of the complainer to lodge the petition with the clerk, stating that it would be laid before the first meeting. That was the proper course for the convener to adopt, and the clerk has no discretionary power, but was bound to have transmitted it to the proper organ, whose duty it is to take steps to have a meeting called. The clerk, however, refuses to receive it, not because he is not convener, but because he is of opinion that it will not be entertained. Nothing can be more monstrous than this; and there being no relief but through the heritors and kirk-session, where, when the clerk refuses to transmit a petition to them, is the complainer to obtain redress, if he cannot complain to this Court, in order to have his claim heard before the proper Court? It is a question of small amount, but it is equally important and necessary to give redress; and, viewing it in every light, it does appear to me that the step taken by the complainer was the proper step, that the clerk was not entitled to refuse to receive the petition, and that the complaint should be sustained, the prayer of which, I think, is exactly what it ought to be, and what we ought to grant; for it does not pray to have him ordained to call a meeting, but simply to receive the petition, and lay it before the next meeting of the heritors and kirk session. If no such meeting takes place, the clergyman will be in the fault, and there may then be an application to the Sheriff to ordain a meeting to be held; but the only question at present before us is, whether it is the duty of the clerk to receive the petition, and lay it before the meeting when held, and on that I can have no doubt, I have only one word to say as to one thing stated here—that it is not the custom in this parish to give written deliverances on petitions for relief. Now, as every applicant is entitled to advocate, and must, in order to do so, have a written deliverance, if the heritors and kirk-session do not give it, they fail in their-duty.

Lord Medwyn.—I agree that we have nothing to do with the merits of the claim, but only whether the clerk ought to have received the petition, and if a complaint to this Court is the proper means of redress. The facts are not disputed. This man is designed session-clerk, and I never understood, and do not understand, that he was appointed by the heritors and kirk-session; and as the heritors have never met with the session, the joint body never could have appointed a clerk in this parish. It is certainly the minister alone who can call meetings, and not the session-clerk, or clerk to the joint-body. After the petition to the session, there was a second presented, addressed to the heritors and kirk-session. I think that address correct. This petition, however, was accompanied with a letter, which is of importance, as showing what was intended by requesting him to call a meeting. It is clear he had no authority to call such meeting. Then comes the further proceedings. The minister writes a letter which I also think of importance, for it refers to the petition to the session, not to the heritors and kirk-session. This was not received, because it was addressed to the heritors and kirk-session. What should then have been done by the complainer? Should he not have complained to the minister? Is that not the competent mode of procedure, instead of coming with a clamorous complaint to this Court? Would he not have got all the redress he required? I think he would, and that he just supposed he would get the kirk-session into a scrape, and would come at once to Court. Now, I don't think this a competent procedure. There is no authority but one warranting us to entertain a complaint against a clerk of an inferior Court, without going first to the Court itself, and in that case Lord Kilkerran accompanies it with a very significant note. It was only if he failed to get redress by going to the minister that he was entitled to come here. There was one other case, Ritchie v. Syme, where a complaint was entertained against the clerk of the Commissary Court, for violation of the Act of Sederunt; but that was a totally different case. Therefore, on the whole, I would not encourage, particularly in such small matters, the time of the Court being occupied, unless redress was refused in the proper quarter, and I cannot find it was the duty of the clerk to have received this petition, and lay it before the meeting of heritors and kirk-session.

The Court accordingly dismissed the complaint.

Solicitors: M'Kenzie and M'Farlane, W. S.— Wm. Pollock, S. S. C.—Agents.

SS 13 SS 108 1834