Scottish Court of Session Decisions

On 23rd May 1892 a vacancy occurred in the ministry of the parish of Old Deer owing to the deposition of the then minister by the General Assembly. On 25th July 1892 a meeting of the congregation was held for the purpose of electing a new minister. The only name submitted to the congregation was that of the Rev. James Duncan Anderson, who on a division received a majority of the votes of those present, and a minute stating the result of the election was in due course transmitted to the Presbytery. Objections to the validity of the appointment were thereafter lodged with the Presbytery by James Craig and other members of the congregation, who craved the Presbytery to decline to sustain the appointment. The main ground on which the objections proceeded was that the parish had been during the election subjected to the illegitimate influence of its deposed minister, but there were also objections to the regularity of the procedure, and to the conduct of Mr Anderson and the congregational committee in the election. Mr Anderson appeared to maintain the validity of the appointment. The congregation were called, but did not enter an appearance. The Presbytery having allowed a proof, evidence was led for the objectors on 1st and 2nd September. On 2nd September, before the proof for the objectors was completed, a joint-minute for the parties was given in, which was in these terms—“The parties concur in stating to the Presbytery that the matter has been settled between them on the following footing, viz., that all imputations of every kind of undue means, or corrupt practices, or complicity therein of Mr Anderson or of the congregational committee, are hereby unreservedly withdrawn, that Mr Anderson agrees that the election of 25th July be not sustained, and that the matter be remitted back to the congregation to commence the vacancy de novo.” … On this minute the Presbytery pronounced the following deliverance—“The Presbytery interpones its authority to the joint-minute, and in terms thereof, and with consent of parties, decline to sustain the call, remits the case to the kirk-session and the congregation to proceed in the vacancy in terms of the regulations of the General Assembly.” … Thereafter, at a meeting of the congregation held on 30th November, Mr Anderson was again nominated and elected.

In December 1892 James Craig and certain other members of the congregation raised an action against Mr Anderson, the Presbytery of the bounds, the Moderator of the kirk-session, and the rest of the congregation, concluding for reduction of the congregational minute of election dated 30th November, and for declarator that Mr Anderson had not been duly elected and appointed minister of the parish, and that in consequence of no appointment having been made within six months of 23rd May, the right of appointment had accrued to and now belonged to the Presbytery tanquam jure devoluto.

Mr Anderson was the only party who lodged defences.

The pursuer pleaded, inter alia—“(2) The right of appointment having devolved upon the Presbytery prior to the congregational meeting of 30th November 1892, the congregation

Page: 827↓

had then no right to proceed to election and appointment, and the pursuers are entitled to decree of reduction of the whole proceedings and minutes thereof. (3) The pretended appointment of 25th July 1892, being wholly inept under the statutory regulations, and not an appointment within the meaning of section 7 of the Act, and its illegality having been protested against at the time, and afterwards affirmed by the Presbytery, it did not interrupt the currency of the six months as from the date of the vacancy.” The defender denied that the Presbytery had declared the appointment of 25th July invalid, and averred that he had resigned the appointment by the joint-minute. He pleaded, inter alia—“(1) The congregation being entitled under the said statute to a period of six months during which to elect a minister, and the said period having been interrupted by the defender's appointment on 25th July 1892, and the second appointment having been made during the currency of the said period, the appointment now challenged is valid, and this defender is entitled to absolvitor.”

By the 3rd section of the Church Patronage Act 1874 the right of electing and appointing ministers to vacant churches is declared to be vested in the congregations of such vacant churches and parishes, and the Courts of the Church are declared “to have the right to decide finally and conclusively upon the appointment, admission, and settlement in any church and parish of any person as minister thereof. …”

Section 7, sub-section 1, provides that “If, on occasion of a vacancy in any parish, no appointment of a minister shall be made by the congregation within the space of six months after the vacancy has occurred, the right of appointment shall accrue and belong for that time to the Presbytery of the bounds where such parish is, who may proceed to appoint a minister of the said parish tanquam jure devoluto.”

On 17th June 1893 the Lord Ordinary ( Kyllachy) sustained the reasons of reduction, and reduced, decerned, and declared, and found, decerned, and declared in terms of the conclusions of the summons.

“ Opinion—The pursuers, who are certain members of the Parish Church of Old Deer, seek in this action to reduce a certain minute of a congregational meeting, whereby the meeting professed to elect and appoint the defender the Rev. James Anderson to be minister of the parish. The ground of reduction is that at the date of the meeting the right of election had passed to the Presbytery by the expiry of six months from the date of the vacancy; and the summons contains a conclusion for declarator to that effect, and to the effect that the right of appointment now belongs to the Presbytery tanquam jure devoluto.

It is pleaded by the defender that the question thus raised is one which, upon a just construction of the Church Patronage Act of 1874, falls to be determined by the courts of the church, the 3rd section of that Act providing, inter alia, that the courts of the church ‘are hereby declared to have the right to decide finally and conclusively upon the appointment, admission, and settlement in any church and parish of any person as minister thereof.’

“I cannot say that if this question had been open I should have thought it unworthy of argument. The words of the statute are comprehensive enough; and it may quite possibly have been the intention of the Legislature to confer upon the church courts a statutory jurisdiction which should exclude all recourse in such matters to the civil courts. But it is too late to raise this question now. It has been more than once decided that,—while the church courts are empowered finally and conclusively to determine all questions as to the mode of election, and as to the validity of any election so far as depending on the regularity of procedure,—the civil courts, and the civil courts alone, have the right of determining all questions as to the right to elect, and in particular all questions as to the emergence of the jus devolutum.

In the present case there can be no doubt that the election in controversy took place more than six months after the occurrence of the vacancy, and it is therefore certain that the right of election had passed to the Presbytery tanquam jure devoluto, unless the defender can show that the running of the statutory period was in some way interrupted. The question is whether anything of that sort is averred or appears upon the proceedings.

I am of opinion that there is nothing averred or disclosed upon this record which can be held to have interrupted the running of the six months. Such interruption may result in two cases; and I cannot at this moment figure more than two. The one case is where there has been a valid election of a duly qualified person who duly accepts, and the election is rendered abortive by the subsequent resignation of the appointee. The other case is where the Presbytery by themselves, or possibly by the moderator whom they appoint, have so frustrated or obstructed the action of the congregation, that the congregation has been deprived of the opportunity of exercising its statutory privilege. The examples of the first case have been numerous, at least in practice. The cases of Cupar and of Cromdale are examples of the second. But the present case does not, as it seems to me, fall within either category. It is impossible to say that during the six months there was here a valid election. There was an election no doubt, but it was challenged, and the Presbytery by a final judgment—none the less final because it was pronounced of consent—found that it was irregular, and therefore invalid. On the other hand, there is no room for the argument that the congregation was in any way impeded or unduly dealt with. The irregularity, such as it was, was their own fault. It was certainly in no sense the fault of the Presbytery. And if the irregularity was not a fatal irregularity, but one which might have been overcome, the parties had themselves to blame for consenting to, and indeed asking, a judgment which set the election aside. Altogether,

Page: 828↓

while regretting the miscarriage which has taken place, and being very willing if I could to maintain the right of the congregation, I find it impossible to do so consistently with the provisions of the statute. I must therefore pronounce a judgment sustaining the reasons of reduction, and reducing and declaring in terms of the conclusions of the summons.”

Argued for the defender—(1) The pursuers had no title to sue, the only title to maintain that the jus devolutum had emerged being in the Presbytery. (2) The Presbytery had not declared the election of 25th July invalid. In signing the joint-minute the defender resigned his appointment, and all that the Presbytery did was to interpone authority to his resignation. It would have been ultra vires of the Presbytery to declare the appointment invalid of consent of parties, the congregation not being represented before them. The appointment of 25th July was a valid appointment followed by resignation. The currency of the statutory period of six months had thus been interrupted. The second election had therefore been made in time, and was valid— Duff v. The Officers of State, January 22, 1864, 2 Macph. 469.

Argued for the pursuers—(1) A Presbytery were not entitled to waive the exercise of the jus devolutum, which was laid upon them as a public duty— Duff v. The Officers of State, supra; Stewart, &c., v. Presbytery of Paisley, November 15, 1878, 6 R. 178, per Lord President, p. 183–4. The pursuers were therefore entitled to sue as parties interested. (2) Here the jus devolutum had emerged, for the only appointment made within six months from the occurrence of the vacancy was declared void by the Presbytery, the deliverance of the Presbytery being a valid judgment to that effect. The currency, therefore, of the period of six months had not been interrupted, and the election of 30th November was too late.

At advising—