Scottish Court of Session Decisions

By section 30 of the Local Government (Scotland) Act 1894 it is enacted as follows:— “(1) When trustees hold any property wholly or mainly for the benefit of the inhabitants of a single parish, or any of them, as such inhabitants, or for any public purpose connected with a single parish other than ( a) for an ecclesiastical charity, ( b) for an educational endowment within the meaning of the Educational Endowment (Scotland) Act 1882, or ( c) for the use or benefit of the poor of the parish within the meaning of section 52 of the Poor Law (Scotland) Act 1845, they may transfer the property to the parish council of the parish, or to persons to be from time to time appointed by that council, and the parish council, if they accept the transfer, or persons whom they appoint, shall hold the property on the trusts and subject to the conditions on which the trustees hold the same. (2) In the event of any such property not being transferred to the parish council under and subject to the provisions of the preceding sub-section, the parish council of the parish concerned may from time to time appoint such number of additional persons to act along with the trustees of the said property, as the trustees and the parish council may agree upon, or in default of such agreement, as may be approved by the board in each case, provided that where the trustees of any such property are elected by or include persons elected by parish electors or inhabitants of the parish, or are members of the county or town council, or are burgh commissioners, the provisions of this sub-section shall not apply unless the board by order so prescribe. (3) Where the trustees of any such property are the kirk-session, or the heritors and kirk-session of any parish, or the kirk-session or deacons’ court, or managers or vestry of a congregation belonging to any religious denomination, to the number, whether alone or conjoined with others, of not less than six persons, the said trustees shall from time to time appoint certain of their own number, not exceeding three, and the parish council of the parish shall from time to time appoint such number of additional persons as the board may in each case approve, to act together as a committee of management of the said property, and such management shall be transferred to the committee accordingly.”

By section 54 of the said Act it is provided that “the expression ‘ecclesiastical charity’ includes a charity the endowment whereof is held for some one or more of the following purposes—( a) for theological instruction or for the benefit of any theological institution; or ( b) for the benefit of any ecclesiastical person or officer as such; or ( c) for use, if a building, as a church, chapel, mission-hall or room, or Sunday school, or otherwise, by any particular church or denomination; or ( d) for the maintenance, repair, or improvement of any such buildings as aforesaid or for the maintenance of divine service therein; or ( e) otherwise for the benefit of any particular church or denomination or of any members thereof as such: provided that where any endowment of a charity other than a building held for any of the purposes aforesaid is held in part only for some of the purposes aforesaid, the charity, so far as that endowment is concerned, shall be an ecclesiastical charity within the meaning of this Act.”

The Parish Council of Borrowstounness and Carriden raised against the Kirk-Session of Bo'ness an action—( First) To have it declared that the defenders held the lands and others after mentioned “as trustees for the benefit of the inhabitants of the said parish of Bo'ness, or for the benefit of the destitute or needy or poor among such inhabitants, or for public purposes connected with said parish, and otherwise than ( a) for an ecclesiastical charity within the meaning of the said Local Government (Scotland) Act 1894, or ( b) an educational endowment within the meaning of the Educational Endowments (Scotland) Act 1882, or ( c) for the exclusive use or benefit of the poor of said parish within the meaning of section 52 of the Poor Law (Scotland) Act 1845—namely, (1) these two and one-half acres Scots of land or thereby in the barony of Kinneil and sheriffdom of Linlithgow, which sometime belonged to Thomas Knox, skipper in Borrowstounness, and Mary Callander or Knox, his spouse, and also these other two and one-half acres Scots of land or thereby, also in said barony and sheriffdom, which sometime belonged to the said Thomas Knox, and thereafter to Elizabeth and Mary Cumming in Borrowstounness, all and more particularly bounded and described in a charter of novodamus granted by the Duke of Hamilton in favour of John Henderson, baker in Borrowstounness, boxmaster of the poor's-box and eleemosynar of the said kirk-session, and his successors in office, dated 6th November 1855, and in an instrument of sasine following thereon, recorded in the Particular Register of Sasines for the sheriffdom of Edinburgh, Linlithgow, &c., on 16th February 1856; (2) a plot of two acres or thereby of land situated in Dean-field, near Bo'ness, purchased by the said Kirk-Session of Bo'ness in or about the year 1702 from John Morton, surgeon in Borrowstounness, out of the funds of the poor's-box, more particularly described in a charter of declaratory adjudication by the said Duke of Hamilton in favour of the said John Henderson, as boxmaster and eleemosynar foresaid, dated 6th September 1853, and instrument of sasine following thereon, recorded in the said Register of Sasines on 10th January 1854; (3) that piece of garden ground at Providence, Bo'ness, commonly known as Scrimgeour's Garden, acquired by the said kirk-session from James Scrimgeour or his creditors in or

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about the year 1780, in satisfaction of a loan they had previously made to the said James Scrimgeour out of funds held by them for behoof of the poor of the said parish; (4) the sum of £15 sterling payable yearly to said kirk-session, being a legacy or annuity bequeathed by David Mackie, sometime tenant in Nineware in the parish of Dunbar, for the use of the poor of the parish of Bo'ness and of the poor of the barony of Kinneil, equally between them, in or about the year 1749, payable at Lammas yearly, said legacy being heritably secured over subjects at Dunbar:” ( Second) to have the defenders ordained to produce a full, true, and particular inventory, statement, and account, with all necessary writs of all lands and property, heritable or moveable, held by them either wholly for the purposes foresaid or partly for said purposes: ( Third) to have it declared that the said defenders were bound, in terms of section 30 of the said Local Government (Scotland) Act 1894, to appoint certain of their number, not exceeding three, to act together with such number of additional persons as the pursuers may appoint, and as the Local Government Board for Scotland may approve as a committee of management of the whole of the said lands, subjects, and others at present held by the defenders as trustees foresaid: ( Fourth) to have the defenders ordained to appoint certain of their number, not exceeding three, to act on such committee of management.

The pursuers averred—“At the passing of the Poor Law (Scotland) Act 1845, the Kirk-Session of Bo'ness had certain properties and funds under their charge for the benefit of the poor of the parish and for other public purposes, and inter alia—(1) the lands first described in the summons, which were purchased with the funds of the poor's-box by the said kirk-session in or about the years 1707 and 1709 from Thomas Knox, skipper in Borrowstounness, and his wife, and from Elizabeth Cumming and Mary Cumming in Borrowstounness; (2) the plot of land second described in the summons, situated in Deanfield near Bo'ness, purchased by the said Kirk-Session of Bo'ness in or about the year 1702 from John Morton, surgeon in Borrowstounness, out of the funds of the poor's-box; (3) a piece of garden ground called Scrimgeour's Garden, at Providence, Bo'ness, acquired as after mentioned; and (4) an annual payment of £15, being a legacy or bequest by David Mackie, sometime tenant in Nine-ware, in the parish of Dunbar, for the use of the poor of the parish of Bo'ness, and of the poor of the barony of Kinneil, equally between them, in or about the year 1749, and heritably secured over subjects in Dunbar. The funds of the poor's-box of the said kirk-session out of which the lands (1) and (2) above mentioned were purchased, were held by the kirk-session and their box-master or eleemosynar for the benefit of the poor of the parish. … The funds and others which are now in question were all acquired and held by the defenders' predecessors, and by the defenders themselves, for the benefit of the poor of the parish, and for no other purpose. If the said funds or any part thereof were expended on ecclesiastical purposes, as the defenders allege, such expenditure was illegal, and the defenders are accountable therefor.”

They pleaded, inter alia—“(1) The lands, subjects, and others described in the summons having been originally acquired and purchased by the defenders' predecessors out of the funds of the poor's-box or out of funds in their hands for the benefit of the inhabitants of the parish of Bo'ness, or of the destitute or needy or poor among said inhabitants, or for the public purposes of said parish, the pursuers are entitled to decree in terms of the conclusions of the summons. (3) On a sound construction of the Local Government (Scotland) Act 1894, and particularly of section 30 thereof, the said lands, subjects, and others fall to be managed by a committee appointed in the manner set forth in the summons, and the pursuers are entitled to decree in terms of the conclusions thereof.”

The defenders “admitted that at the passing of the Poor Law Act 1845 the Kirk-Session of Bo'ness held the properties first and second here mentioned. It is explained that the Kirk-Session of Bo'ness had certain funds which were derived from various sources. These sources included the sources from which the funds of a kirk-session were usually derived. The whole moneys of the kirk-session, including moneys applicable and applied for relief of the poor, were kept together, and were known as session funds, church funds, the ‘kirk-box,’ ‘box,’ or frequently ‘poor's-box,’ from the fact that out of the united fund the kirk-session attended to the claims of the poor. The person in charge of this fund for the kirk-session was appointed by them, and was called the kirk treasurer, boxmaster, or eleemosynar. The said lands first and second mentioned were about the beginning of the eighteenth century purchased out of the united fund, and the title was taken to the boxmaster or treasurer ‘for behoof of the kirk-session and of the poor of the parish,’ and the subjects are still held for behoof of these two joint beneficiaries. … It is explained that the funds referred to, and all funds coming into the hands of the kirk-session, were held as one fund. The funds of the kirk-session from all sources have … been expended upon the proper objects of both the beneficiaries for whom the lands and others referred to in this action are held. … Thus on the one hand a considerable sum derived from a sale of ironstone was expended in 1856 in assisting in the erection of a poorhouse for the legal poor, and donations have also been given for the benefit of that class of poor, while the occasional poor have also been supported and aided. On the other hand a sum was expended in aiding or assisting in aiding in the erection of a new session-house which was necessary for the parish, and in managing, maintaining, and improving the fabric of the church and its appurtenances, and in payment towards bursaries to students, salaries of church-officers, precentors, and the necessary

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ecclesiastical expenses of the church and parish, while aid has been given to deserving persons specially connected with the parish church congregation, or who had special needs and claims on the kirk-session. The said fund constituted an ecclesiastical charity in the sense of the Local Government (Scotland) Act 1894, and has been carefully expended as such by the kirk-session, to the great advantage of the parish and of the congregation worshipping in the parish church thereof.”

They pleaded, inter alia—“(3) The action cannot be maintained, in respect that section 30 of the Local Government Act 1894 does not apply to the lands and funds in question. (5) The defenders should be assoilzied, in respect that the lands and funds referred to in the summons (or at least the lands (1) and (2) specified therein) were acquired and have been lawfully held and administered in part for behoof of the kirk-session for the ecclesiastical purposes referred to in section 54 of the said Local Government Act 1894.”

A proof was led before the Lord Ordinary ( Stormonth Darling). The facts shown by the proof and productions are fully set forth in the opinions of the Lord Ordinary and Lord Trayner.

On 20th July 1899 the Lord Ordinary pronounced the following interlocutor: “Finds, decerns, and declares in terms of the first conclusion of the summons, so far as regards the subjects mentioned in the third and fourth heads thereof: Assoilzies the defenders from the said conclusion so far as regards the other subjects mentioned therein, and also from the second conclusion; quoad ultra continues the cause,” &c.

Note.—“This action relates to four heritable subjects belonging to the Kirk-Session of Bo'ness, and the question is whether these or any of them form “parish trusts” within the meaning of section 30 of the Local Government Act of 1894, with the result that the management of them is to be handed over to a joint committee appointed by the kirk-session and the Parish Council.

The definition of parish trusts in section 30 is property held by trustees ‘wholly or mainly for the benefit of the inhabitants of a single parish, or any of them, as such inhabitants, or for any public purpose connected with a single parish;’ but from this wide description three classes of trusts are excepted. With two of these we are not here concerned, for nobody says that these properties constitute an ‘educational endowment,’ nor can they be said to be held for the use or benefit of the legal poor of the parish within the meaning of section 52 of the Poor Law Act of 1845, because if they were they ought to be handed over to the Parish Council itself, and not to a joint committee. But in truth this question is foreclosed by the fact that these properties which in 1846 had been transferred to the parochial board of the parish under the impression that they fell under section 52 of the Poor Law Act, were in 1853 re-transferred to the kirk-session, all parties being satisfied by the judgment in the Linlithgow case, 18 D. 37, that the transfer of 1846 had proceeded on a mistaken view of the law.

There remains for consideration the third exception from the definition of parish trusts in section 30, viz., the case of an ‘ecclesiastical charity.’ Now, that expression is defined by section 54 as including a charity the endowment whereof is held for (taking it shortly) the maintenance, repair or improvement of an ecclesiastical building, or for the maintenance of divine service therein, or otherwise for the benefit of any particular church or denomination, or of any members thereof as such; and then follows this important proviso, that ‘where any endowment of a charity other than a building held for any of the purposes aforesaid is held in part only for some of the purposes aforesaid, the charity, so far as that endowment is concerned, shall be an ecclesiastical charity within the meaning of the Act.’ Accordingly if these properties, or any of them, are held, even to the smallest extent, for what may be shortly termed ecclesiastical purposes, they do not fall under the category of a ‘parish trust’ as defined in section 30.

The properties in question, which together are said to be worth £1700, fall naturally into two divisions—Nos. 1 and 2 having been bought early in the eighteenth century out of the savings of the whole funds administered by the kirk-session; while Nos. 3 and 4 represent the investments of two bequests made later in the same century to the kirk-session. It seems to me that Nos. 3 and 4 do fall under the definitions of ‘parish trusts,’ and that Nos. 1 and 2 do not.

Dealing first with Nos. 3 and 4, I find it admitted by joint-minute for the parties that in 1768 the kirk-session received a bequest from George Gillespie, shipmaster in Amsterdam; that in the absence of his will the only information in possession of the parties is derived from the minute-books of the kirk-session, in which the money is mentioned as ‘bequeathed to the poor of the parish of Bo'ness,’ and that ‘Scrimgeour's Garden’ came to be the investment of that bequest. Next I find from the same joint-minute that in 1749 ‘David Mackie disponed an annuity’ of £15 to the kirk-session for the use of the poor of the parish of Bo'ness and of the poor of barony of Kinneil equally betwixt them, the annuity being heritably secured over subjects at Dunbar. Now, these must be taken to be bequests not for the legal poor only, but for the poor both legal and occasional. But that seems to me precisely to answer the description in section 30—in other words, the property is held for the benefit of the inhabitants of a single parish as such. The introduction as regards Mackie's annuity of the barony of Kinneil creates no difficulty, because the barony of Kinneil and the parish of Bo'ness are in point of fact co-extensive. There is no hint or suggestion by either testator of the money having been intended for an ecclesiastical purpose, and therefore it seems to me that as regards these properties the kirk-session have no good answer to the demand of the Parish Council.

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It is otherwise, I think, with properties Nos. 1 and 2, which represent investments made by the kirk-session out of its general funds. Here undoubtedly a question of general importance is raised, because I apprehend that the administration of the Kirk-Session of Bo'ness has not differed from that of most other parishes in Scotland. It must always be remembered that these bodies were originally and essentially ecclesiastical in their character, and that their functions as guardians of the poor were superadded to their original functions, first by use and wont, and then by statute. Their funds were derived mainly from voluntary collections, but also from such sources as proclamation dues, funeral dues, payments for the use of mortcloths, payments for ringing the church bell, payments for allowing marriages to be celebrated in houses, and the like. Again, their funds were expended mainly, no doubt, for the relief of the poor, legal and occasional, but they also undertook, and so far as I can see quite legally undertook, a number of payments both regular and occasional in connection with the ‘maintenance of divine service.’ They paid the salaries of the session-clerk, the beadle, and the bellringer; they heated and lighted, and repaired the interior of the church, and they sometimes prepared for the out-door celebration of the Sacrament by the erection of a tent. The case of Cambuslang, M. 10,570, directly recognises the legality of a ‘new tent for field preaching,’ and if that was a payment within the competence of a kirk-session, I cannot imagine on what principle the legality of more normal outlays, which did not form a burden on the heritors, could possibly be disputed. It is quite true that from an early period the heritors had a right to call the kirk-session to account for their administration of ordinary collections in order that the burden of supplementing these might not be unduly increased. It is also true that with the same view kirk-sessions were directed by the Proclamation of 1693 to pay over one-half of the collections to the heritors. That principle sufficiently explains the cases of Speirs, 9 S. 659, and Panmure, 1 D. 840, on which the pursuers founded. But there is no decision so far as I am aware which throws any doubt upon the right of kirk-sessions to make customary disbursements for church purposes out of the general funds under their charge. Unquestionably the Kirk-Session of Bo'ness made such disbursements to a very considerable extent, and if they did so legally even to a small extent, then the properties bought with their savings were held ‘in part for ecclesiastical purposes, which is enough to save them from the operation of section 30.

An attempt was made by the pursuers to show that the money with which these properties were bought was earmarked by the kirk-session as intended for the poor alone. The titles give no encouragement to that view, because they describe the lands as held ‘for the use and behoof of the kirk-session and of the poor of the parish of Bo'ness,’ which is inconsistent with the idea that the poor were the sole beneficiaries. But the pursuers point to minutes such as that of 6th March 1707, which speaks of money ‘lying in the eleemosynar's hand,’ and states the willingness of the kirk-session ‘to improve the poor's money to the best advantage.’ But it seems to me that no weight can be attached to casual expressions of that kind, which are obviously used without precision. The same functionary is sometimes called ‘eleemosynar’ and sometimes ‘treasurer.’ The same box is sometimes called the ‘poor's-box’ and sometimes ‘the kirk-box.’ References to the poor in connection with either money or land are sufficiently accounted for by the fact that the poor were the principal beneficiaries of the whole property in the hands of the kirk-session. But such expressions by no means imply that savings made out of the general funds were intended to be set apart and to be expended differently from the general funds themselves.

I shall therefore give decree in terms of the first conclusion of the summons as regards the properties Nos. 3 and 4. I shall assoilzie the defenders from the said conclusion as regards the other subjects, and also from the second conclusion, and quoad ultra I shall continue the cause.”

The pursuers reclaimed, and argued—They were entitled to decree in terms of the first conclusion as regards the subjects first and second specified in the summons as well as regards the third and fourth. These properties were purchased by money taken from the poor's-box. There was no doubt that almost the whole of the money that was placed in that box consisted of church-door collections. These collections belonged exclusively to the poor, and must be applied in their behalf— The Heritors v. The Minister of Humble, Feb. 15, 1751, M. 10,555; Hamilton v. Minister of Cambuslang, Nov. 23, 1752, M. 10,570; Heritors of Neilston v. Fleming, June 1, 1831, 9 S. 659; Lord Panmure v. Sharpe, May 30, 1839, 1 D. 840. Some small amounts might be received from other sources, but these were exceptional, and some of these exceptional sources, such as dues received from the use of hearses and mortcloths, belonged to the poor—Dunlop's Parochial Law (3rd ed.) 401. The conveyances of the lands had been taken in the name of the treasurer of the kirk-session for the use and behoof of the kirk-session and the poor of the parish, but this was done because a feudal conveyance required to be taken in the name of an individual, and in order that the kirk-session might call him to account he was described as holding on behalf of the kirk-session. But the purpose for which he held was for the use and behoof of the poor of the parish of Bo'ness. The kirk-session records also showed that these lands were designated “poor's acres” and “lands belonging to the poor,” and that the income derived from them was expended for behoof of the poor.

Argued for defenders—The money in the poor's-box was not exclusively derived from church collections. That box was called

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”poor's-box” or “kirk-box,” and was the common box containing all the funds belonging to the kirk-session derived from the sources enumerated by the Lord Ordinary. These sources included money received for ringing bells which did not belong to the poor— Minister of Montrose v. Magistrates, July 2, 1733, M. 7915. With these general funds the properties in question had been purchased. The title showed that the lands were taken in name of one trustee, the treasurer of the kirk-session on behalf of two beneficiaries, the kirk-session and the poor of the parish. The money was to be applied not only for the use and behoof of the poor of the parish, but also for the use of the kirk-session, viz., any use approved of by them. The kirk-session had always had other functions besides the administration of the poor, although, no doubt, this latter constituted an important part of their duties. The Cambuslang case, supra, clearly showed that even what was accounted poor's money could be applied for purposes other than relief of the poor. The Lord Ordinary's judgment was right.

At advising—