Scottish Court of Session Decisions

This was a note of suspension and interdict at the instance of (1) the General Assembly of the Free Church of Scotland, (2) Colin Fraser and others, the whole existing and acting trustees for the congregation in Strathpeffer adhering to the Free Church of Scotland, and (3) the Moderator and Kirk-Session of said congregation, against (1) the Rev. James Johnston and others, the minister and elders forming the Kirk-Session of the Association of Christians forming the United Free Church Congregation in Strathpeffer, (2) the Deacon's Court of said congregation, and (3) the said James Johnston and others as representing the said congregation, craving the Court to interdict the respondents from officiating as minister, elders, or deacons within the church property formerly known as the Free Church in Strathpeffer, and from interfering with the complainers in the peaceable possession of said subjects.

The church in question was held on a title similar, mutatis mutandis, to that on which the church in the case of Young and Others v. Macalister and Others, August 1, 1004, 41 S.L.R. 742, was held.

On 6th December 1904 the Lord Ordinary on the Bills ( Pearson) passed the note and granted interim interdict without caution and pronounced the following opinion:—“The case of Strathpeffer which I have now before me is the first of a group of cases which raise the question of the right to the congregational property of the Free Church as it stood at the time of the Union in 1900. It is conceded that the note must be passed, and the only question I have to decide at present is the question of interim interdict.

“In considering this question I must, of course, take special note of the distinction between this case and the similar application which was made in the New College case. There the property in question admittedly

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fell within the very terms of the judgment of the House of Lords, and my duty was little more than ministerial. Here there is no judgment applying to the property in dispute; and the respondents urge that those who are now seeking to turn them out have themselves no title to the property by declarator or otherwise. Now, it is true that there has been no litigation between these particular parties, and because of that either party is free to make new averments, to state new pleas-in-law, and to put forward new grounds of judgment. But it is impossible, in deciding the question now in hand, to ignore all that has happened. Of course on this question of interim interdict I can only deal with the matter provisionally, but it is certainly according to the practice of the Court in such cases to consider how the rights of parties appear on a prima facie aspect.

“First, on the question of title, the respondents contend that the subjects are vested in a body of trustees, and that that body is divided, and, so far as regards those whose names appear in the infeftment, equally divided. I think that is quite immaterial to the present question. The trustees are all here, and obviously they are divided because some have remained in the Free Church while others have joined in the Union. If it were necessary it might be pointed out that under clause 7 of the Model Trust Deed, which is incorporated in their title, it is provided that in the event of any trustee ‘ceasing to be a member of the said body or united body of Christians,’ he shall ipso facto cease to have any right under these presents, and the trust shall thenceforward be conducted by the other trustees as if the trustee so ceasing was actually dead. True, the respondents say that the local trustees, who are among their number, have not ceased to be members of the united body of Christians there referred to, and that it is the trustees who are complainers that have done so. Prima facie I think it is just the other way, for I have been referred to the opinions pronounced by a majority of the Lords on appeal in the cases of Lord Overtoun and Others and of Young v. Macalister, which appear to lay down distinctly, as matter of construction of this very trust-deed (the Model Trust), that the union there contemplated must be such as might properly be made without detriment to the distinctive tenets of the Free Church, and that the union founded on by the respondent does not answer that description. Without being res judicata against the present respondents, that is a judgment of the highest authority upon the construction of the same Model Trust-Deed, and it is, I take it, binding on all the courts, except in a case where some workable distinction can be suggested.

“But after all when once it is settled, as I hold it to be settled, that the law which is applicable is the law of trusts, it becomes apparent that the practical question is not so much as to the personnel or the title of the trustees, but as to the identification of the beneficiaries. And on this point I take it that the judgments pronounced on both appeals are prima facie conclusive against the respondents. This is very clearly brought out by the circumstance that in the action of declarator it was declared among other things that even the United Free Church trustees hold the general property in the meantime for the Free Church beneficiaries.

“But it is urged for the respondents that however this may be their case as here stated on the pleadings presents certain important considerations which were not put forward in those previous litigations, and upon which they undertake to show after a proof that they are in the right. These are (1) that the opinions of the original leaders of the Free Church, when properly collected and weighed, negative the conclusion arrived at by the House of Lords as to the importance of the Establishment principle; and (2) that the title here, being dated in 1886, is not open to the same observations as was the case with the much earlier title founded on in the case of Young, and further that many of the original subscribers are still alive, and that their views and the views of the deceased subscribers are known to have been ‘in favour not only of the competency but of the expediency of the Union.’

“I assume for the present purpose the relevancy of the respondents' averments on both these topics. But the question is whether they make any such difference in the prima facie aspect of the parties' rights as to entitle the respondents to prevail on this question of interim interdict. In my opinion they do not. The first of them involves the proposition that the case on this head was inadequately presented in the previous litigations, and that the present respondents could have done better—so much better as to compel a different decision. Now that is quite within the bounds of possibility, but there is no such marked probability about it as to impair seriously the strength of the complainers' position at this stage. The other topic, namely the inquiry into the intentions of the donors, comes more nearly up to what the respondents are in search of, and this is really the only point made which has caused me to hesitate in holding that the complainers' case for interim interdict is unanswerable. I have given every consideration in my power, within the time allowed, to the argument for the respondents on this matter of the wishes of the contributors, and to the full references which were made to the opinions delivered in the House of Lords; and I have been unable to come to the conclusion that the statement of the donors' wishes and intentions is sufficient ground at the present stage for deciding against the complainers in the matter of interim regulation.

“Then it is said that there is about to be intervention by the Executive Government or by the Legislature, and it appears that a Royal Commission is about to be appointed. But all beyond that is quite vague, both as to time and as to the terms of reference. I would gladly have held my hand until this matter takes more definite shape. But neither party suggested that I should on

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that account postpone deciding the question of interim regulation one way or the other. The only use I was asked to make of it was to accept it as a reason for refusing interim interdict. But it is as yet at too early a stage to furnish me with a reason for doing that.

“I thought that perhaps a knowledge of the local circumstances of the two congregations, and of the facilities for accommodating them, might have some bearing on this question. I have been furnished orally by the parties with their respective views as to numbers and accommodation, with the result that I feel I can draw no safe conclusion in favour of either. The matter is in my view so obviously one for arrangement and regulation, especially having regard to the subject-matter in dispute, that it is with great reluctance that give either party a temporary and it may be a barren victory by deciding the question of interim possession. But my reluctance is tempered by the consideration that the complainers made what from their point of view appeared to me a reasonable offer of joint use of the subjects, and that this offer was refused without any counter proposal being made.”

The respondents reclaimed against the allowance of interim interdict, and argued—It was admitted that the case was not res judicata; the respondents were not parties to the previous litigations, and had not agreed to accept them as test cases; they had new facts to set out—the intentions of donors of the Church funds, and the appointment of a Royal Commission to inquire into the facts; there was a probability of legislative interference; and meanwhile they should not be compelled to give up what had never been litigated; a commission had been granted to Sir John Cheyne to regulate the question of interim possession.

Argued for the complainers—The Lord Ordinary had carefully considered the question of interim interdict, and there was no reason for disturbing his judgment; the complainers had a good prima facie title to the property, and were therefore entitled to interim interdict; the appointment of the Commissions did not oust the jurisdiction of the Court.

At advising—