Scottish Court of Session Decisions

The West Church of Cambuslang was built in 1889, and was thereafter regularly used as a place of worship in connection with the Church of Scotland. The Reverend John Elder was inducted to the West Church as a Chapel of Ease in 1887. The Committee of Management of the church consisted, in terms of the deed of constitution, of three of the trustees of the church, viz., Lieutenant James Gray-Buchanan of Eastfield, Francis Robertson Reid of Gallowflat, and Michael Rowland Gray Buchanan of Well-shot, and six persons elected by the congregation, viz., William Carr, M.B., Rose-mount, Cambuslang, James Shedden Elder, L.R.C.S.E., 125 Greenhead Street, Glasgow, John Smith, gardener, John Thomson, foreman bricklayer, Cambuslang, Gavin Cullen, clerk, Cambuslang, and William Fleming, clerk, Cambuslang. The deed of constitution further provided— Third, … Four shall be a quorum of the Committee of Management… . Sixth, The duties of the Committee of Management shall be to appoint a precentor, beadle, and doorkeeper, or other officials, and to fix the salaries to be paid to their officers; to take charge of the said chapel and appurtenances; to keep the same clean and in good order and repair; to superintend the seat-lettings and the collections, and generally to manage the secular affairs of the said chapel.

In 1891 proceedings were instituted for the erection of the church, with a suitable district attached, into a parish church and parish quoad sacra in connection with the Church of Scotland, to be called the West Church and Parish of Cambuslang. In order to provide a fund for the endowment of the minister, contributions or subscriptions were invited from persons disposed to further this object.

In a letter dated 30th March 1894 written by Andrew Stewart Bryce, Glenpark, Uddingston to the Rev. John Elder, his son-in-law, commencing, “My dear John,” and dealing with private matters, Bryce said—“I will give you £100 towards endowment should your subscriptions fall short.”

The sum required for endowment was £1940, but subscriptions, &c., fell short of this amount by £700, and on 3rd February 1897 William Carr, in name of the Committee of Management, wrote to Bryce asking him for an early payment of the foresaid amount of £100. Bryce replied to this on 6th February 1897—“It is not only true that I promised by letter to give £100 for the object you refer to, but it is also true that so eager was my desire to promote the interests of that object, that I sent the letter in question by special messenger to the recipient so as to make sure that he would receive it in time to make whatever use of it he might think proper at the meeting to be held same evening. Since then circumstances have arisen, so distressingly painful in their character, as to entirely exonerate me from implementing that promise.”

Thereafter, in May 1897, an action was raised in the Sheriff Court at Hamilton in the name of the nine members, “the Committee of Management of the West Church at Cambuslang, with consent and concurrence of the Reverend John Elder, minister of said church, for his interest,” against Bryce, to have the defender ordained to pay to the pursuers, “as the Committee of Management foresaid,” £100.

The pursuers averred, inter alia—… “In order to provide or assist in providing a fund for the endowment of the minister of said church, contributions or subscriptions were, by or on behalf of the management, invited from persons disposed to further said object. The movement in connection with the endowment fund was begun about the year 1891. (Cond. 3) Amongst others who promised or undertook to contribute to said endowment was the defender, who, in a letter dated 30th March 1894, written to the said Reverend John Elder, minister of said church, said—‘I will give you £100 towards endowment should your subscriptions fall short.’”…

The pursuers pleaded—“(1) The defender having promised or undertaken to contribute the principal sum concluded for towards the endowment of the minister of said church, and the condition attached to defender's promise having been purified by the subscriptions falling short, the pursuers, as the Committee of Management of said church, are entitled to decree therefor, with interest and expenses. (3) The terms of the defender's obligation and of the said letter by him to Dr Carr, and the circumstances that the Reverend John Elder—to whom the defender's letter of 30th March 1894, containing said obligation, was written—is a consenter to this action, bar the defender, personali exceptione, from objecting to the title of the pursuers.”

The defenders pleaded—“(1) No title to sue. (2) The condition upon which the defender promised to subscribe the sum in question not having yet been purified, the present proceedings are premature, and the action falls to be dismissed, with expenses.”

On 16th June 1897 the Sheriff-Substitute ( Davidson) sustained the first plea-in-law for the defender, and dismissed the action.

The pursuers appealed to the Sheriff ( Berry), who on 4th August adhered to the interlocutor appealed against, and appended

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to his judgment the following note:— … “The question to be determined is, whether the present pursuers, the Committee of Management, have a title to sue. I have come to be of opinion that they have not. No undertaking to pay to them was made by the defender. Such undertaking as was given was to the minister, and he appears in this case merely as consenting to or concurring with the bringing of the action by the pursuers. That does not put him in the position of pursuer so as to justify the action being maintained by the Committee of Management, who thus have no title. In Hislop v. MacRitchie's Trustee, 8 R (H. L.) 95, 105, Lord Watson said, ‘But I know of no authority for holding that, according to the law or practice of Scotland, a person who has no right or title whatever can sue an action, provided he obtains the consent and concurrence of the party to whom alone such right or title belongs.’”

The pursuers appealed to the Court of Session.

On 25th November 1897, after the case had been put out in the Short Roll for hearing, Lieutenant-Colonel James Gray-Buchanan, Francis Robertson Reid, and Michael Brown Gray-Buchanan, lodged a minute of disclamation, in which they stated “that no notice was ever given them that they had been appointed members of the Committee of Management of the church in question, that no notice of any meetings of that committee had been sent them, that no notice of this action had been given them, that although the action had been brought in their names as pursuers they never authorised the said action nor gave any mandate and authority to anyone to raise it in their names, that they never knew or heard of the said action until about the end of September 1897, that they repudiated and disclaimed the appearance made for them in the said action, and protested that they should not be liable for any expenses already incurred or to be incurred in connection therewith.”

On 1st December the six other pursuers lodged a minute in which they stated that they did not admit the statements in the minute of disclamation, that the three disclaiming pursuers were trustees of the church under the deed of constitution, and in terms thereof were three of the Committee of Management, that the dates and hours of the meetings of the Committee had been intimated from the pulpit, and that it had never been the custom to send a notice to each of the Committee summoning him to the meetings, that at these meetings the present minuters being a quorum had resolved to recover the subscription from the defender, and that so soon as they had heard of the three first pursuers' intention to disclaim they wrote offering undertakings on their behalf to free and relieve them from the whole of the expenses of and all liability for this action, and they thereby repeated the offer.

Argued for the three disclaiming pursuers—They should be set free from the action in the same way as the pursuer James Cowan junior in Cowan v. Fairnie, March 4, 1836, 14 S. 634. The action had been brought in their name without their authority and without any notice being given to them, and was therefore invalid so far as they were concerned— Wyse v. Abbott, July 19, 1881, 8 R. 982. The remaining pursuers being a majority and a quorum of the Committee of Management were entitled to bring the action in their own name— M'Culloch v. Wallace, November 12, 1846, 9 D. 32, opinion of Lord Jeffrey, 34; Blisset's Trustees v. Hope's Trustees, February 7, 1854, 16 D. 482, but they were not entitled to make others pursuers without their consent. Their names should be deleted from the process.

Argued for the six other pursuers— On Minute of Disclamation—The three first named pursuers were not entitled to withdraw their names. The cases quoted by them related to bodies of trustees and trust-administration. The pursuers were not a body of trustees, but a Committee constituted by statute to carry on the management of the affairs of the church and to perform statutory duties. In such a case, if the majority, being a quorum of the Committee, thought that an action should be raised in order that their duties might be rightly performed, they were entitled to raise it in the name of the whole Committee. If the three first pursuers were of opinion that the action should not be raised, they could resign their office as trustees, but were not entitled to remain trustees, and consequently members of the Committee, and yet withhold their names from the action. On Title to Sue—The Committee of Management were the proper persons to sue. The subscriptions were invited on behalf of the management, and although the promise by the defender to contribute to the emolument was made in a letter to the minister, the Committee of Management were the proper pursuers in an action to enforce the promise. Besides, the defender is, by means of his letter to Carr, and the fact that the minister was a consenter to the action, barred from objecting to the pursuers' title. On Merits—A gratuitous promise to pay money contained in a document becomes an obligation when the document is delivered to the donee— Bell's Principles, sec. 34; Erskine's Institutes, iii., secs. 3, 88, 90, 91; Macfarlane v. Johnstone, June 11, 1864, 2 Macph. 1210, opinion of Lord Justice-Clerk Inglis, 1213, and Lord Neaves, 1214; Shaw v. Mure's Executrix, July 13, 1892, 19 R. 997, opinion of Lord President Robertson, 1002. The letter in the present case contained a binding promise, and had been delivered to the minister as acting on behalf of the Committee of Management. The letter was a short bond, and that bond was actionable. It was a document of debt expressing an obligation to pay money for a particular object, and by the law of Scotland no consideration was necessary. If the latter part of the sentence quoted from the letter was taken as a condition, then they were entitled to a

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proof to show that the condition had been purified.

Argued for defender— On Title to Sue— The argument stated in the Sheriff's note was unsound. The minister was the proper person to sue if there was any obligation at all, and his merely consenting and concurring in the action did not make the title of the pursuers good— Hislop v. Mac-Ritchie's Trustees, June 23,1881, 8 R. (H.L.) 95. The committee of management had no title to sue. On Merits—The pursuers took an extract from a private letter and called it an actionable bond. It was impossible to think that this was intended to be a document which raised up a legal obligation against the writer and was capable of being stamped. Even if the letter contained a promise, the promise was conditional and the condition had not been purified. The pursuers admitted on record that they were still £700 short of the amount required to complete the endowment. An additional £100 would not therefore complete the endowment, and the £100 was only promised if the subscriptions fell short by that sum of the amount necessary to complete the endowment.

At advising—