Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Maclagan (Collector of The Ministers' Widows' Fund) v. Brown [1887] ScotLR 24_759 (20 July 1887)
URL: http://www.bailii.org/scot/cases/ScotCS/1887/24SLR0759.html
Cite as: [1887] ScotLR 24_759, [1887] SLR 24_759
[New search] [Printable PDF version] [Help]
SCOTTISH_SLR_Court_of_Session
Page: 759↓
Court of Session Inner House First Division.
v.
Facts:
The trustees of a church erected by private subscription offered the charge to an ordained minister of the Church of Scotland who was not a parish minister. He accepted the appointment, which was approved by the Presbytery. The trustees, in a petition to the Presbytery, set forth that they were about to apply to the Teind Court for the erection of the church and district into a church and parish quoad sacra, and submitted a draft constitution for approval, which provided that the said minister “shall be recognised and received by the presbytery of the bounds as the first minister of the new church and parish as soon as possible after decree of erection has been pronounced by the Court of Teinds.” The Presbytery approved of the proposed application, and the constitution was approved by the General Assembly. Thereafter the Teind Court granted a decree of disjunction and erection, and the minister was inducted. Held, in a question between the minister and the collector of the Ministers' Widows' Fund, that the former was entitled and bound to become a contributor to the Ministers' Widows' Fund.
Grant v. Macintyre, July 14, 1849, 11 D. 1370, distinguished.
The Church of St Margaret's, Dumbiedykes, Edinburgh, was built in 1881 by private subscription in order to accommodate the inhabitants of the vicinity in connection with the Church of Scotland. On the 17th of October 1881 the trustees resolved to appoint the Rev. William Morris Brown minister of the church, and they intimated their resolution to him in a letter in the following terms:—“ Edinburgh, 17 th October 1881.—To the Rev. W. M. Brown.—My dear Sir,—At a meeting of the trustees held this forenoon it was agreed to offer you the charge as minister of Dumbiedykes Church. We guarantee you a yearly stipend of £150 for the first three years, the grant from the Home Mission in addition. Rev. Mr M'Nair, as convener, intends calling a meeting of the committee appointed by Presbytery for Friday first, at 22 Queen Street. I would be pleased to have your reply before then.—Yours sincerely, W. M. Ford.” The Rev. William Morris Brown was at this date a duly ordained minister of the Church of Scotland, but was not a parish minister. At the meeting which followed the trustees elected Mr Brown; the Presbytery, upon the report of the committee appointed by them, approved Mr Brown's appointment, and he thereafter entered upon his duties as minister of St Margaret's.
In March 1885 the trustees of the church presented a petition to the Presbytery of Edinburgh, setting forth that they were now to apply to the Court of Teinds for the erection of the church, with a suitable district attached, into a church and parish quoad sacra, in terms of the Act 7 and 8 Vict. cap. 44; that in order to make the said application it was necessary that they should procure a constitution, and they therewith submitted the draft of a constitution to the said Presbytery for sanction and approval, and also prayed the Presbytery to recommend the boundaries proposed for the new quoad sacra parish. Article 15 of the said constitution proposed—“That the Rev. William Morris Brown, M.A., shall be recognised and received by the Presbytery of the bounds as the first minister of the new church and parish as soon as possible after decree of disjunction has been pronounced by the Court of Teinds.”
The Presbytery approved of the proposed disjunction and erection, and consented to application being made to the Court of Teinds. The deed of constitution was, on the recommendation of the Presbytery, approved by the delegation appointed by the General Assembly for that purpose on 1st April 1885.
On 6th January 1886 a petition was presented to the Court of Teinds, and on 12th July 1886,
Page: 760↓
after the usual procedure, decree of disjunction and erection was pronounced in terms of the prayer of the petition. Thereafter Mr Brown signified his acceptance of the appointment, and he was admitted minister of the quoad sacra church and parish of St Margaret's, Dumbie-dykes. Certain doubts having arisen as to the right and duty of Mr Brown to become a contributor to the Ministers' Widows' Fund, this Special Case was adjusted, to which J. T. Maclagan, the collector of the said fund, was the first party, and the Rev. William Morris Brown was the second party.
The question upon which the judgment of the Court was craved was—“Is the party of the second part bound and entitled to become a contributor to the Ministers' Widows' Fund?”
In the case of Grant v. Macintyre, July 14, 1849, 11 D. 1370, the Court found, in conformity with the opinion of the majority of the whole Court, “that ministers ordained or admitted to the charge of any church and district, after the same shall have been erected into a church and parish quoad sacra under authority of the Statute 7 and 8 Vict. cap. 44, are bound and entitled to become contributors to the Ministers' Widows' Fund, but find that parties holding the charge of any church and district so erected, but who have been appointed to the same before the date of such erection, are not bound or entitled to become contributors to the said fund.”
In view of that decision it was contended by the first party that Mr Brown had been appointed minister of St Margaret's before the church was erected into a church and parish quoad sacra, and that consequently he was neither entitled nor bound to become a contributor to the fund.
The second party maintained that he was not appointed until after the date of said erection, and that he was bound and entitled to become a contributor to the said fund.
It was argued for the first party—(1) That the appointment of Mr Brown in 1881 was quite sufficient, as admitting him to be minister of the church; (2) that even if that were not sufficient, by the constitution finally settled in 1885, before the petition to the Teind Court was presented, he was duly admitted as minister of the church. Accordingly the case was ruled by Grant v. Macintyre, July 14, 1849, 11 D. 1370; Irvine v. Trustees of Widows' Fund, May 24, 1838, 16 S. 1024, 1389, rev. Gordon v. Trustees of Ministers' Widows' Fund, February 18, 1836, 14 S. 509, and November 16, 1836, 15 S. 15; Cheyne v. Cook, June 20, 1863, 1 Macph. 963.
It was argued for the second party that Mr Brown was, prior to the erection, simply in the position of a missionary. His secular rights were wholly regulated by the contract with the trustees—a contract of employment. His office in no respect answered to the legal conception of a benefice. Besides, the constitution was only provisional on the erection, and therefore it was only in a sense that his appointment was prior to the erection. His position thus differed toto cœlo from that of the Parliamentary ministers, and the case of Grant v. Macintyre, supra cit., did not apply.
At advising—
The circumstances of the case are simple. The church at Dumbiedykes was erected by private subscription, and although recognised by the Presbytery as in communion with the Church of Scotland, had only the status of a chapel of ease erected by voluntary subscription. Then the trustees or subscribers applied to Mr Brown and offered him the appointment as minister, and the terms of their appointment are distinctly set forth in the letter which they wrote to him. They offer him the charge, and they guarantee him a yearly stipend of £150 for the first three years, the grant from the Home Mission in addition. They added that the Rev. Mr M'Nair, as convener, intended calling a meeting of the committee appointed by the Presbytery. Mr Brown answered favourably; the meeting was held; and it was agreed that Mr Brown should be elected.
Now, I pause to consider what was the nature of the arrangement between the subscribers and Mr Brown. The church belonged to the subscribers, and Mr Brown was selected to officiate as minister; and as he happened to be an ordained minister, he did not require to be ordained again for that purpose. The relation was that of parties to a mutual contract—to a contract of employment? That was the whole arrangement. No doubt it was carried through with the approval of the Presbytery; and that was quite right, for the church was intended to be in communion with the Church of Scotland. When the subscribers applied to the Court of Teinds to have the district in the neighbourhood of the church erected into a quoad sacra parish, they availed themselves of the provisions of the Act 7 and 8 Vict. cap. 44, sec. 8, and in doing so desired the Court to erect a certain district indicated by certain specified boundaries as a parish quoad sacra, and they offered the church of that parish, and they proposed that Mr Brown should be the minister of that church and parish. His position was to be essentially different from the position of minister of a chapel of ease. He was to have a permanent endowment under the 8th section of the Act 7 and 8 Vict. cap. 44. He was to have a stipend and manse. Provision was made for the up-keeping of the church and for the transference thereof from the subscribers to the Church of Scotland. All the provisions necessary to the maintenance of the ecclesiastical buildings were permanently secured. A deed of constitution had been approved by the General Assembly; and thereafter the subscribers presented the petition to the Court of Teinds, in which it was, inter alia, set forth that Mr Brown should be recognised and received by the Presbytery of the
Page: 761↓
Now, it appears to me that when the Presbytery proceeded after the decree of erection to induct Mr Brown, they were proceeding with perfect regularity and propriety. He was for the first time admitted to such a benefice. All that is very clear, were it not for the case of Grant v. Macintyre; and it is contended that the case of Parliamentary ministers is on all fours with the case of Mr Brown. But when Mr Macintyre was admitted to Kinloch-Spelvie, he was admitted once for all as to that office or benefice. The erection of the church and district into a parish quoad sacra might affect his position as holder of that benefice, but it did not lead to any new admission. His status was undoubtedly altered, but his remuneration, stipend, and manse remained the same; and his office remained the same. On the other hand Mr Brown was never appointed to any benefice until he was appointed to the quoad sacra parish and church of St Margaret's. Mr Brown had no connection with the church prior to that appointment other than being employed for a limited time to conduct the services of the church. There was no kind of endowment to which he was entitled apart from the agreement that he was to get £150 a-year. Now, by statute, every minister of the Church of Scotland when admitted to a benefice is bound to contribute to the Widows' Fund. It cannot be said that Mr Brown was admitted to a benefice when he was appointed to this chapel of ease. I therefore think that there is a clear distinction between this case and the case of Grant v. Macintyre, and that the question submitted to us should be answered in the affirmative.
The Court answered the question in the affirmative.
Counsel for the First Party— Graham Murray— Dickson. Agents— Inglis & Allan, W.S.
Counsel for the Second Party— Pearson— Wallace. Agents— Mackenzie & Black, W.S.