Scottish Court of Session Decisions

The office of schoolmaster of the parish of Sprouston having become vacant by the death of the incumbent in spring, 1833, intimation thereof was made from the pulpit on the 3d March, by order of the moderator of the presbytery of Kelso (the ministerial charge of the parish being also vacant at the time), and a meeting of heritors was called to be held on the 14th March, “to arrange matters previous to the election,” and another for the 17th April, in terms of the statute, to elect a successor. Notice of both meetings was given to the several heritors by circular letters. At the meeting on the 14th March, there attended Messrs Darling, Walker, and Brodie, the ordinary factors respectively for the Duchess-Dowager of Roxburghe (liferentrix, by way of locality, of a considerable extent of land in the parish), and for Sir John Scott Douglas, and Sir William Eliott, heritors; these factors being in use to attend and act for their constituents at all parochial meetings. No objection was taken at the meeting to the right of any of these parties to be present, but no written mandates were produced. The following resolution was adopted:—“The meeting resolve, that the new schoolmaster of this parish should be qualified to teach English, writing, arithmetic, and Latin; and that it is necessary to require certificates of character and previous success in teaching, from the several candidates. The meeting farther resolve, that an advertisement, in the above terms, shall be weekly inserted in the Kelso Mail, and the Edinburgh and Leith Advertiser; and that, in said advertisement, the candidates shall be required to lodge the certificates before mentioned, with Robert Darling, Esq. Kelso, on or before Thursday the 11th day of April next. The meeting farther resolve, that an examination of the several candidates shall take place on the 17th of April, previous to the election, and that one or two of the members of the presbytery be requested to attend upon that occasion.”

Advertisements in terms of this resolution were accordingly published; and, at the meeting for election on the 17th April, twenty-seven applications were laid before it. Sir William Eliott having been chosen preses, the following procedure took place, as set forth in the minutes:—“At this stage of the proceedings, Sir William Eliott objected to the vote of Mr Walker on behalf of Sir John James Scott Douglas, Bart., in respect that his mandate or authority proceeded from Lady Douglas, and not from Sir John, as the statute requires, and therefore protests, that any vote or votes that he may give are null and void. It was answered by Mr Walker, that Lady Scott Douglas having a full authority from her husband to manage his affairs in his absence, an authority from her he considers perfectly sufficient, and therefore protests against the refusal of his vote. Sir William also protests against the vote of Mr Darling, for the trustees of her Grace the Duchess Dowager of Roxburghe, and the Honourable John Tollemache, her husband, in respect that her Grace is a liferentrix, and not an heritor, as the statute requires; and therefore protests that any vote or votes that he may give shall be null and void. To which it was answered by Mr Darling—the trustees of the Duchess of Roxburghe being infeft in her Grace's locality lands in this parish, they are entitled to exercise all the rights of proprietors; and therefore protests against the refusal of his vote. Mr Darling protests against the vote of Sir William Eliott, upon the ground that the trustees of the late Honourable William Elliot of Wells have not denuded themselves of the lands of Hadden and Nottylees in his favour. To which Sir William Eliott stated, he will not condescend to make any reply. After much discussion respecting the mode of election, and the qualifications of the various candidates, Mr Elliot at last proposed Mr James Brown, teacher at Crailinghall, parish of Jedburgh, as a fit person to fill the office of parochial schoolmaster for this parish, and who was approved of by Mr Darling and Mr Walker. Sir William Eliott moved, that Mr John Simpson, teacher at Kelso, should be appointed schoolmaster, and claimed two votes as the only heritor qualified, as the schoolmasters' act prescribes, and also the casting vote as preses, all which he gives in favour of Mr John Simpson; and he protests, for the reasons already given, against the votes of Messrs Darling and Walker, as being null and void, and of no effect whatever. Messrs Elliot, Darling, and Walker, object to the claim of Sir William having two votes, in terms of the schoolmasters' act, and consequently, that he has no casting vote on this occasion, and they protest accordingly. The meeting therefore declared Mr Brown schoolmaster for this parish, and to enter upon his office at Whitsunday 1833, and to be entitled to all its emoluments upon being found by the Presbytery of Kelso qualified to teach English, writing, arithmetic, and Latin, which the meeting considered necessary qualifications for this parish, and they direct the clerk to furnish him with a copy of this minute. Sir William Eliott protests against the decision just come to in respect of the illegality of the votes of Messrs Darling and Walker, and protests that Mr John Simpson is duly elected schoolmaster of the parish of Sprouston, by a majority of legal votes; and declares the said Mr John Simpson schoolmaster accordingly, and to enter upon his office at Whitsunday, 1833, and to be entitled to all its emoluments, upon being found qualified by the Presbytery of Kelso to teach English, writing, and arithmetic, and direct the clerk to furnish him with a copy of this minute.”

At a subsequent meeting held on the 19th September following, and at which the minister, now inducted, and whole heritors, or parties formally authorized by them, were present, the following resolution was adopted, Sir William Eliott alone dissenting and protesting against its competency:—“That the resolution of the meeting of the 14th of March last, requiring a knowledge of the Latin language as one of the qualifications of candidates for the vacant parish school of Sprouston, being still a standing and valid resolution, to the effect of forming the rule by which the presbytery must conduct themselves in their examination of the schoolmaster elect; and never having been specially altered by any competent meeting, the presbytery shall be respectfully craved, in their examination and trial of the candidate elect, to give effect to the said resolution, and to make a knowledge of the Latin tongue an essential requisite before confirming any person in the office of schoolmaster of this parish; and as Mr Simpson does not possess this requisite, and, besides, was not duly elected by a majority of the heritors present, that the said venerable body shall take upon trial Mr James Brown, and upon his being found duly qualified, in terms of the resolution of 14th March last, confirm him in his said office.”

In the mean while both Simpson and Brown had presented to the presbytery extracts of the minute of election, each craving to be taken on trials as the schoolmaster elect. The presbytery, feeling some difficulty as to the course they should adopt, referred the matter for advice to the General Assembly, who, in May 1834, recommended them to be guided by the opinion of the procurator. The presbytery accordingly, on the 16th July thereafter, in conformity to an opinion given by the procurator, found that Simpson was the party duly elected, but that the branches on which he was required to be examined were “ Latin, English, writing, and arithmetic.” Brown entered no protest against this judgment, so far as regarded the question of election, but Simpson, on being called upon to be examined, “declined to be examined by the court on his knowledge of Latin.” The presbytery pronounced this deliverance:—“The presbytery thereupon unanimously found that Mr Simpson, having declined to be examined as to his knowledge of Latin, is not duly qualified for the office of parochial schoolmaster of Sprouston; and they appointed Mr Sym to make the legal intimations, with a view to the filling up of the vacancy.”

Simpson on this brought a suspension, on the ground that the presbytery had exceeded their powers in calling on him to stand an examination in Latin, that not being one of the branches required by the heritors in the minute of election. This suspension was resisted by the Duke of Buccleuch and the other heritors, who pleaded—

1. The suspender has no title to insist in this suspension, not having been elected schoolmaster. At the meeting for election Sir William Eliott alone voted for him. The other three parties present voted for Brown. The vote of the Duke of Buccleuch's factor is not disputed to have been valid, and if either of the other two were sustained, it would be sufficient to exclude Simpson. The objection to that of Sir John Scott Douglas's factor is that he had not a written mandate; but although the statute requires, that when an heritor votes by letter, it shall be under his own hand, it is not enacted that a factor, or other representative, shall have a written mandate, if he be truly authorized, as was the case here, Sir John having fully confirmed the acting of his factor. Then as to the Duchess of Roxburghe's factor, his vote is objected to simply on the ground that her grace is a liferentrix. But in the case of Toshach v. Smart, ¹ it was decided that it is the liferenter, and not the fiar, who is entitled to vote in the election of a schoolmaster. The election, therefore, truly fell on Brown, and no reduction is necessary, because this appears ex facie of the minutes, and because the deliverance of the presbytery, finding Simpson duly elected, is of no civil effect as to this matter, which is not within their province.

2. Latin was required by the minister and heritors as one of the branches to be taught. If the legal majority of the election meeting were, as above contended for, this is indisputable. But, besides, the

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¹ July 18, 1771 (M. 13134).