Scottish Court of Session Decisions

Lord Corehouse.—The only question now is, what is the true import of the interlocutor pronounced by me in March, 1831. That is a final interlocutor. It must receive effect according to its genuine import, as it stands; and it is immaterial to refer to the views by which I was influenced in pronouncing it, excepting to the limited effect of thence deriving such aid as they may be legitimately fitted to give, towards a correct construction of its terms. It is only to that limited effect that I shall now make use of them. The case was that of an action by a builder for the balance remaining due, of the price of a chapel erected by him. It was fully pleaded before me in the Outer House. There were various classes of defenders, in various situations. First, there were the committee of management who had contracted for the building, and it appeared to me that their only relevant defence was an allegation that the contract had not been duly fulfilled, and that the Chapel had not been made a sufficient building. That defence of course involved a proof. But, in the second place, there was another class of defenders, not members of the committee, but their constituents. These were the individuals who had collected together with a view to form a Congregation, and have a Chapel; who voted in the nomination of the committee of management, and homologated the proceedings of the committee. These individuals appeared to roe to be just as liable as the members of the committee themselves. The pursuer, however, carried his claim much farther than these two classes of persons. He maintained that there were many others of the defenders who had sat at the Communion table within the Chapel, and who had got the benefit of stated religious ordinances there; and that all the hearers, or communicants, were liable. I thought that this was going too far. In the Church of Scotland it is well known that when a sacrament is dispensed within a parish, individuals often assemble from various quarters, and if they bring testimonials with them, or are personally known, they will obtain tokens, and be admitted to the Communion table. It appeared to me that the mere participation in religious ordinances, or being admitted as communicants within the Chapel in question, afforded no ground for subjecting parties civilly in the cost of its erection. There was still a fourth class of defenders, who took a seat in the Chapel for a month, or for six months perhaps, such, for instance, as an inhabitant of Portobello who might find himself not strong enough to go to his parish church at Duddingston, and who took a seat in the Chapel that he might there hear the gospel preached. I thought that neither the circumstance of his taking a seat, or attending the Chapel, was any sufficient ground for subjecting him in the cost of its erection.

In regard to the description of the defenders as given on the record, it will be observed that the pursuer, in the first article of his condescendence states that, “about the beginning of the year 1824, it was resolved by a number of the inhabitants of the village of Portobello and its vicinity, to take measures for forming a society or congregation, in connexion with the United Associate or Burgher Secession, and also for procuring a clergyman, and erecting a Chapel or meeting-house for the use and accommodation of said proposed congregation.” As to the members of that “society or congregation,” which was formed for the purposes there specified, I thought that they were liable, including the committee of management and their constituents. The fact whether an individual was, or was not, one of the constituency of the committee, was a fact which evidently might be ascertained and proved in various ways. I did not, at the time, inquire whether persons were admitted ecclesiastically as members of the congregation, but only as members, or constituents of the “society or congregation” above referred to. The interlocutor accordingly does not express any thing about ecclesiastical members. If a man who was an Episcopalian, for example, was either a member of the committee of management, or was one of the constituents of that committee, I should undoubtedly have held him liable, though he was no ecclesiastical member of the congregation. Who, then, were the constituents of the Committee ? Those who, as set forth in the article which I have quoted, “took measures for forming a society or congregation,” one of the objects of which was to have the Chapel erected. In regard to the latter part of my interlocutor, my object was to exclude from liability those who were mere hearers or communicants. I never thought of going through the form of inquiry whether individuals were admitted members of the congregation, according to all the ecclesiastical forms of the Secession Church, as if these should affect this question of civil liability. In using the phrase “members of the said United Associate Congregation,” I merely adopted the title which they had taken for themselves. If any one was a member of the civil association, or “society” formed for the purpose of building the Chapel, then he was liable; but he was not so, by merely being a hearer or communicant. And that was what my interlocutor, in the latter branch of it, was intended to express. In the condescendence the terms society and congregation, with reference to the purpose of erecting the Chapel, were used as synonymous, or convertible with each other. There was nothing pleaded before me, as to the distinction between them, or as to the distinction between members who were admitted according to the ecclesiastical rules of the body, to be members of the congregation in a strict ecclesiastical sense, and persons who might, to all civil effects, be members of the society for building the Chapel, and yet not regularly admitted members of the congregation, according to their own ecclesiastical rules. Had any such distinction been pointed at, I should at once have said that there was nothing but a civil interest before the Court, and that strict ecclesiastical membership was not the question.

But it remains to be inquired whether the interlocutor, framed in reference to the record and pleadings to which I have adverted, has been so expressed as to be incompatible with the views which I have now stated. In the first branch of it, that interlocutor finds that “all the members of the committee of management of the Portobello United Associate Secession Congregation, from the period when the pursuer was employed to lit up the temporary meeting-house, or who became members of the committee between that period, and the time when the new chapel was taken possession of by the congregation” were liable. Nothing is said there, whether the members of committee were regular ecclesiastical members of the congregation or not. The second branch of the interlocutor finds, “that all persons who were not merely hearers, or communicants in the meeting-house or the chapel, but were members of the said United Associate Secession Congregation during the said period,” were liable. How far then does this go in support of the charge excepted against ? It excludes mere hearers or communicants from liability; but neither its express words, nor its genuine import, exclude those who were neither hearers, nor communicants, if nevertheless evidence was led to instruct liability against them on other grounds. Suppose that an individual was neither a hearer nor a communicant, but had contracted liability on other grounds, such, for instance, as by signing a paper expressly empowering the committee to subscribe a contract with the pursuer, such an individual would be clearly liable. He would be liable equally whether he was a hearer and communicant or not, his liability being quite independent of that circumstance. And it seems to me that it is only by putting a strained interpretation on the interlocutor, which is not warranted either by its words or its meaning, that any opposite view can be at all supported. And, in the same manner, I consider, in the present case, that as to the defenders who pleaded exemption from liability, in respect they were not regular ecclesiastical members of the congregation, the pursuer was entitled to adduce all facts and circumstances against them, tending to instruct their liability on other grounds. Whether there is sufficient proof against the defenders, to imply their liability or not, is not the question here. The question is whether the interlocutor of March 1831, in fair construction, excludes the ground of liability of a party's having been associated with those who authorized the building—his having been a member of the Civil Association, described in Art. I., already referred to, as “a Society or Congregation,” of which one of the main objects was there stated to be, to get a chapel erected “for the proposed congregation.” I do not hold such person to be excluded from liability. The association or society was entered into before the congregation was actually formed; but a third party was not to be affected by that circumstance, as he knew nothing of the ecclesiastical rules of the religious body to which the congregation belonged. I think, therefore, that the second exception which has been taken ought to be allowed unless the interlocutor of March, 1831, is to be subjected to a more narrow construction than appears to me to be necessary, although I am sensible that it has been so framed as to create, at least at first sight, a difficulty in disposing of this question.

Lord Gillies.—I think the question, which has been raised, is attended with great difficulty, but, after full consideration, I concur in holding that the second exception should be allowed. I see that in the Call which was addressed to the minister of this congregation, the subscribers expressly designed themselves “members” of the congregation. That is one of the circumstances in the case which strikes me very forcibly. Is a party who has subscribed the Call, and expressly designed himself “member” of the congregation, to be afterwards allowed to plead that he had not been admitted a member according to all the ecclesiastical rules of the United Associate Secession Church; and, therefore, that a tradesman who contracted with him on the faith of his being a member of the congregation, is to be cut off from a claim which would have otherwise been good against him ? Though he may never have obtained his “certificate of disjunction” from another congregation of which he previously was a member, yet if he did ostensibly, and de facto disjoin himself from it, by attending regularly as a member of the new congregation, and positively designing himself a member of it, a third party was not bound to know whether he was ecclesiastically and regularly a member of the new congregation or not.

Lord Mackenzie.—I have felt much doubt and difficulty in forming my opinion in this case; but I have come to the conclusion that the second exception ought to be allowed. I hold the law to be, that when a chapel is built by contract with, or for, a congregation, the contract binds all who then are acting as members of the congregation, and enjoying the privileges of members. It is not limited to those alone who, according to strict sectarian accuracy, may be the regular ecclesiastical members. The public do not know, and are not bound to know, the private laws of the sect; and after a contract has been made with or for the congregation, the third party so contracting is not to be stopped in his action under the contract, by a disclosure of the laws of the sect, and a proof that any, or it may be all, of the defenders were not, according to such laws, regular ecclesiastical members of the congregation. In truth, the opposite rule admits very obviously of the reductio ad absurdum, because an error might have been committed in the admission of members which affected the entire congregation, ecclesiastically speaking; and thus the result would be, that a third party who built a chapel for a congregation, and under a contract with the congregation, might be told that he had got nobody at all for his debtor, because there was not one member in the whole congregation who had been admitted with strict sectarian propriety. I hold that all who acted as members of the congregation, with and for whom the contract was made while they were so acting, were liable. Holding that to be the law, I am of opinion that the interlocutor of the Lord Ordinary does not decide any point contrary to it. It certainly does not expressly do so; and there would be no safety in holding that it impliedly does so. It does find that persons who were not mere hearers or communicants, but who were “members” of the congregation, were liable; but it does not find that all persons who were not admitted members with perfect ecclesiastical correctness, are free. I regard the finding in the same light as if it had declared that all the partners of a certain company were liable; but such a finding would not free a defender, in a question with a third party, if he had been acting as a partner, and enjoying the privileges of a partner, though he could prove that, according to the private rules of the company themselves, he had not been regularly admitted. If a defender is to be held an actual member, he must be liable, though he may not have been admitted with the strictest sectarian propriety. I am of opinion that the second “exception” ought to be allowed.

His Lordship was understood to add, that, even if the interlocutor of March, 1831, were to be otherwise construed, still the terms of the issues as to restingowing were general, and the Judge presiding at the trial would have been warranted in allowing any ground of liability to go to the Jury, which was fairly within the case, and not barred by surprise.

Lord President.—From the opinions now expressed by the Court, the second exception must be allowed, and a new trial must be granted. But it should be kept in view that the interlocutor prefixed to the issues required to be read just as if it were recited and engrossed in both and each of them; so that any grounds of liability, which, according to the just construction of that interlocutor, were shut out of the case, could not be allowed to go to the Jury. But the Court now holds, that, according to its just construction, there were grounds of liability which I, adopting a different construction, had held to be excluded, and therefore a new trial must be granted.

Dean of Faculty for Defenders.—The Court will observe the law that is laid down in the Bill of Exceptions as that which should have been stated to the Jury. I trust it is not understood that the Court mean to sanction the law so stated.

Lord Gillies.—If the opinions which have been delivered by the majority of the Court are correct, I do not perceive that there is any thing objectionable in that statement of the law.