Scottish Court of Session Decisions

Lords President, Balgray, Mackenzie, Medwyn, Fullerton, and Moncreiff.—“I. We think, that it appears certainly from the record, pleadings, and productions in this case, and is a matter on which it is not necessary to order proof or trial, that the church of Mauchline was, on the 17th of August, 1826, in a state of disrepair.

“2. We think, that such being the fact, it was the duty of the heritors to repair or rebuild it, in terms of the acts of Parliament 1563, c. 76, and 1572, c. 54, and act of Privy Council, 13th September, 1563, authorized and ratified by the first of these acts of Parliament, all as interpreted or modified by the practice and custom of Scotland. It has been long settled in practice, that the term ‘parishioners’ used in these acts must be interpreted to include not mere inhabitants, whose interest in the parish may cease at any time, but those only having immoveable property in the parish, i. e. heritors; and also, that the share of this burden originally allotted to the parson must now be added to that borne by the heritors. In this way, the provision of the act of Privy Council now comes to be read:—‘Therefore the said Lords ordain all parish-kirks within this realm, which are decayed and fallen down, to be repaired and upbigged, and where they are ruinous and faulty, to be mended; and after, that they be sufficiently mended in windows, thack, and other necessaries, to be maintained and upholden upon the expenses of the heritors.’

“3. We think that the heritors of Mauchline had the power of executing their duty of repairing the kirk of that parish, by means of meetings of their own body, called on the requisition of any one of the parties interested, and at those meetings acting as usual, by the vote of a majority of the members present in person, or by proxy, adopting such measures of repair as seemed fit, and imposing assessments for payment of the expense of such repairs, so as to bind all the heritors. It seems to us in general, that the heritors of parishes having the duty of repairing churches imposed upon them, it was the implied meaning of these act a of Parliament and Privy Council, that quoad hoc the heritors should be able to act as a corporation, by holding meetings, which should represent the whole body, and act for and bind them in this manner. For the act of Privy Council, with a view to the speedy execution of this duty, authorizes the issuing of letters to messengers, which we presume must have been obtainable at the instance of any person interested to charge the heritors to elect persons to tax them for the expense of such repairs; and it cannot be supposed that they were to be charged to do what was not understood to be within their competency. The messenger, it will be observed, is not authorized to call any meeting, or declare its powers or mode of acting, but simply to charge the heritors to do their duty in this respect. And the statute 1572, which expressly ratifies the previous provision, and censures the parishioners, i.e. the heritors, for not having done their duty in this respect, authorizes the interference of the bishops (now presbyteries) only where the parishioners, being required to elect and choose ‘persones for making of the taxation to the effect foresaid; refuses or delayis, or quhair thair is na kirk-maisters or deacons appoynted;' and it will also be observed, that what the bishops aro appointed to do, is not to authorize meetings of the heritors, but to appoint persons for making the taxation, or for receiving the same, i.e. to do themselves what the heritors should have done. Under these acts—of which it must be remembered that the last does not repeal, but ratifies the two first—it seems plain that the heritors might meet and act without waiting to be charged by a messenger, and we think, a fortiori, without any interference of the bishop or presbytery, if they were willing. If, however, they could act at all, it seems impossible to doubt that this must have been by means of meetings called on sufficient notice, upon the requisition of any one interested, and acting by the votes of those present, so as to bind the whole. No other way can well be imagined.

“Accordingly, in the case of Lauder, 24th November, 1630, reported by Spottiswoode, an heritor was found to be bound to pay an assessment laid on by a meeting of heritors for reparation of the kirk, though he himself had not agreed to it. It is true, that in that case it appears the presbytery had interfered. But still, the assessment was imposed, not by the presbytery, (or bishop,) as authorized by the statute, 1572, to be done, but by an act of a meeting of heritors, which the act gives no authority to the presbytery to call, or to authorize, if otherwise incompetent. And we believe, that in practice it has been understood that the heritors might act in this way without any warrant from the presbytery, and that this understanding has been acted upon.

“We observe, too, that an heretrix was, in the case of Inverkeithing, 15th February, 1642, Durie, found liable to pay her proportion of a stent imposed for a kirk-bell, which must have been viewed as a pertinent of the kirk, and that at the instance of the parishioners, and without any mention whatever of the presbytery having interfered.

“4. We think that the heritors being thus, quoad hoc, made into a corporation, every one heritor must equally be bound by their acts, whether he be sane or insane, major or minor, present at the meetings or absent, voting with the majority or with the minority, acquiescing in or protesting against what is done. There is, however, a remedy competent to every heritor, which indeed manifestly implies that every heritor is bound, viz. by an application to this Court, to control and direct the body of the heritors by its authority. This any heritor may use; but if he does not, he cannot exempt himself by any act of recusancy or dissent.

“5. But it may be asked, can a meeting, or the majority of a meeting of heritors, do any thing they please, without becoming responsible in their own persons exclusively for the burdens imposed by their acts? We should answer, that, provided they do not exceed their powers, they cannot incur such responsibility, except by acting fraudulently, or at least with that wilful negligence or wantonness that culpa lata quæ dolo equiparatur, We think that honest error in judgment, even although pretty palpable, will not subject them in this way. Considering that the heritors who attend fulfil a duty which those who are absent decline, and that those who attend and oppose have the remedy of appeal to this Court, which can fail them only because they do not choose to use it, we think it would be very hard and very inexpedient to hold that the heritors attending the meeting, or those voting in the majority, were to bear the whole burden of what was competently and honestly done in the general concern, merely because it was not done wisely. At that rate, prudent men would stay away from all such meetings, and reserve to themselves the hope of exemption from a burden, by objecting to what was done by others. We think the above rule is the strictest that can he laid down.

“6. We think, then, that the church of Mauchline requiring repairs, it appears from the record that the heritors of that parish were competently and fairly called to meetings, and that those meetings acted competently and fairly in ordering the repairs on the church to which this question relates. That they acted unfortunately is clear; and we could not say that they acted judiciously. But we see no reason to say there was any fraud or culpa lata quæ dolo equiparatur in their conduct. The heritors) present at the meetings were on all occasions acting in a matter wherein their own interest was concerned, exactly in the same way as that of all the heritors absent or dissenting was. There appears no trace of any separate or perverse interest whatever leading to any thing that was done. If, then, any thing was done wrong, we do not well see how it could arise from any other cause than honest error in judgment, for which we do not think they can be subjected in the penalty of personal and exclusive liability.

“7, In this case, the advocator pleads a nullity of the whole proceedings of the heritors, because they did not obtain precise and complete contracts for the repairs before resolving to adopt, or commencing them, or imposing the stent for the expense of them. We are not aware of any grounds for such nullity. The act of privy council not only does not mention, but it does not seem to contemplate any contract at all, previous to raising money. The concluding sentence is, ‘that the said parishioners make payment of the sums that they shall be taxed to the kirk-masters or deacons of the paroch, to be appointed by them for receiving thereof, to the reparation of the said kirks, sicklike within twelve days next after they are charged thereto, under the pain of rebellion, and failing thereof to be put to the horn.’ And it seems obvious, that although in cases of rebuilding it is always possible to have a previous contract (though, even in these cases, there is generally some extra matter left in a looser state), yet in cases of repair it is very often impossible. The estent, nature, and expense of the repair necessary, often cannot be known until it be actually made; and when it is attempted to make previous contracts for repairs of old buildings, modifications and changes of plan must sometimes unavoidably happen. We do not think, therefore, there is any good ground for this plea of nullity. The case of Porterfield, in which the Court restrained a presbytery from raiding money before they had obtained estimates, and entered into contracts for building a new church, bears no analogy to the present, which relates, not to the acte of the Presbytery, but of the heritors; and is not a question of what the Court will direct to be done when applied to before-hand,—but whether, after repairs have actually been executed or attempted by the heritors, without any application made to the Court to prevent it, the Court will throw the whole burden of those repairs on certain heritors only, and exempt another heritor, because the former executed or attempted the repairs without rigidly adhering to an estimate and contract, while the other stood by, and at most objected, but took no legal measure to have the errors of his brother heritors corrected in time. This last would require nothing less than some strict legal nullity in the proceedings. And we may repeat, that we see no warrant for holding that even the total want of a contract for repair of a church would constitute such nullity—still less, some looseness in and departure from the contract occurring in the course of executing or attempting to execute such repair.

“8. Another special objection has been stated, that at one of the meetings the body which imposed the assessment was not the heritors but the kirk-session. We think that objection too critical. We think it sufficiently appears that the meeting was in truth a meeting of the heritors, though first called, and then adjourned along with a meeting of kirk-session, which it was convenient to have assembled at the same time. We believe, in practice, this is common. And further, we think that the effect of this objection, even if well founded, would only be to make it necessary to call a new meeting of the heritors to impose the assessment, which would still remain due as before.

“On the whole, we are of opinion, that upon consideration of what is set forth in the record, pleadings, and productions, the advocator ought to be subjected to the assessment in question.

“There is only one other point on which we have not touched above; because we are not sure that it is involved in the question put to us, which seems to relate rather to the liability of the advocator to the assessment generally, than to the amount of his share of it, viz. Whether the stent ought to be proportioned as has been done, or in the manner appropriate to the parish, considered as partly a town parish, like that of Peterhead? If this plea is persisted in, we rather think that it must lead to an investigation of the facts of the case.”

Lord Corehouse.—“I concur in the above opinion, in so far as it relates to the construction of the acts of Parliament, and of the Privy Council, concerning the building and repairing of parish churches, and in general to the powers and duties of heritors under those acts. But from the facts of the case, I arrive at a different conclusion as to the merits of the question at issue. I think it is not enough that a meeting of heritors ordering a church to be built or repaired, and levying an assessment for the expense on all the heritors, absent as well as present, and dissenting as well as concurring, should act bona fide, or with honest intentions, and avoid that gross negligence which the law holds akin, if not equivalent, to fraud; but that they are further bound to use that degree of ordinary diligence which a prudent man does in the management of his own affairs. In the language of the civil law, et culpam latam et culpam levem præstare tenentur, a rule I conceive universally applicable, where a statutory trust is created for the purpose of imposing pecuniary burdens.

“In the present case, it appears that on the 13th December, 1827, the presbytery appointed two tradesmen of skill, approved of by the heritors, to inspect the state of the church of Mauchline, which they did, and reported upon oath that they found the foundation of the walls insufficient, and the walls generally in an insufficient state, and the roof very much decayed, and the whole in such a state as to be incapable of being repaired. Six weeks before this, one of them had informed the heritors that the whole roof was perfectly rotten and useless. Considering how simple the structure of a country church in Scotland is, all this might have been discovered with equal ease in September, 1826, before a shilling of expense had been incurred, as in October, or December, 1827, after more than £500 had been spent in an abortive, because an impracticable attempt.

“There is no evidence from the minutes, that a general examination of the church, with reference to the fact whether it could be safely and effectively repaired, took place, before a plan of repair was adopted and commenced. The west gallery was indeed inspected, and on that inspection a resolution to repair, agreeably to a certain plan, was passed, and a contract actually executed. That plan was soon found to be impracticable, the south wall was declared insufficient, and appointed to be rebuilt, in so far as it appears, without any inspection of the other walls. It is true, that on this occasion three men inspected the roof; but they were all contractors or offerers for the job. Davidson was contractor for the wright and slate work, Tait for the walls, and Lees had been conditionally preferred. It appears that Nimmo, the only person who had no interest in the matter, was called upon to report only as to the insufficiency of the south wall, which the other contractors had an interest to rebuild, and not as to the roof, which they had undertaken to repair, and which he himself pronounced irreparable three months afterwards. To proceed with so hazardous an operation, as a general repair of an old building, on a mere partial and superficial inspection, and that by persons evidently interested, appears to me an act of great imprudence. Before any such attempt, a thorough and minute examination of the whole fabric ought to have been made by disinterested persons; the plans, specifications, and estimates of every part of the work ought to have been deliberately settled; and if a doubt was entertained of the practicability of the repair, the contractors ought to have been taken bound, not only to execute, but to uphold it. To omit these precautions was certainly a want of ordinary circumspection, and the heritors were the more to blame, that they were put on their guard by Sir James Boswell's reiterated protests, rested, it is true, at first on an untenable ground, but afterwards directed in general terms against the whole proceeding.

“To give effect to this assessment would be, in my opinion, a bad precedent. A meeting of heritors is too often disposed to prefer the alternative of repairing to that of rebuilding, either from shortsighted economy, or from the desire of transferring a burden from their own shoulders to those of their successors; and by patching up an old and ruinous church, the congregation in the mean time is ill accommodated, and themselves, and those whom they are empowered to assess, are in the end saddled with twice the expense which would be required to erect a new one. It is for the benefit of all parties, that the heritors should not be encouraged to wink at the real state of the building placed under their charge.

“It seems to be thought hard, that the loss in this case should be laid on the individuals who attended the meeting, while those who staid away are exempted; and if it were done, that a motive would be held out to heritors to absent themselves on such occasions, and to neglect the duty imposed upon them by law. But truly there is little danger of that result, for if the heritors do not choose to act, the presbytery will not fail to act for them. I am of opinion, therefore, that the advocator is not liable for the assessment in question.”

Lords Craigie and Gillies.—“The pleadings and proceedings in this case, on which the opinions of the Court have been required, involve two questions of general importance—1st, The authority of the heritors or landed proprietors in Scotland, in regard to the rebuilding or repairing of parish churches; and, 2d, The proper form of procedure to be followed by those who may exercise such authority.

“There is a third question of less consequence—Whether, holding the proceedings of the heritors in this case as unauthorized and informal, the advocator, Sir James Boswell, has nevertheless, by taciturnity and acquiescence, debarred himself from making any objection to them?

“The two quesions first mentioned must be governed by the act of the Secret or Privy Council in Scotland in 1563, referred to and confirmed by act 1563, chap. 56, joined with the subsequent act 1572, chap. 54. Of the first of these, au authentic transcript has been obtained, and a copy will be found annexed. ^*

“It is not said, in the act of the Secret Council, by whom the letters of horning there mentioned are to be obtained, for compelling the parishioners to choose fit persons, styled kirk-masters and deacons, to make the requisite assessments, two-thirds being laid on the parishioners, and the remaining third being laid upon the parson, that is, the parish-minister himself, if in the full right of the benefice, or the individual standing in the general right of the titularity of the teinds. It may be supposed that any of the parishioners or members of the ecclesiastical establishment in Scotland at the time were entitled to interpose. The assessment, however, is to be completed in twelve days, and within twelve days more payment