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SCOTTISH_HoL

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(1860) 1 Paterson 984

REPORTS OF SCOTCH APPEALS IN THE HOUSE OF LORDS.

No. 147

John Cairncross and Others, Appellants

v.

James Lorimer and Others, Respondents

AUGUST 9, 1860.

Subject_Church — Dissenting Congregation — Right to Chapel — Personal Bar — Acquiescence — Mora.

A congregation of dissenters, by their trustees, held the property of their church under a trust to adhere to “ the original principles of the Secession.”

Held (affirming judgment), That members of the congregation, forming a small minority thereof were barred from claiming restitution of the church, which, by a resolution of the congregation, had been separated from the religious body to which it originally belonged, and annexed to
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another with which the congregation had formed a union, inasmuch as there had been acquiescence and consent of such minority. ¹

Certain persons as trustees, (including the pursuers Cairncross and others,) in 1829 took a disposition of a meeting house and other subjects to be held in trust for the Associate Congregation of Original Seceders in Carnoustie, in connexion with the Associate Synod of Original Seceders, and adhering to the original principles of the Secession as set forth in a book specified. One purpose of the trust was, that the houses should belong solely to those who continued “in adherence to the foresaid original principles of the Secession.”

In 1842 the Associate Synod of Original Seceders, on uniting with other dissenters, took the name of “The Synod of United Original Seceders.” The latter Synod in 1852 joined the Free Church of Scotland, and so did the defenders Lorimer and others. The Carnoustie congregation resolved to join the Free Church, and the defenders, as the majority, kept possession of the meeting house. Other members of the congregation, including the pursuers, raised this action to recover possession, on the ground that they alone represented the original principles of the Secession, for whose benefit the property was disponed in 1829, and that the defenders had forfeited all right to the property. The defenders pleaded, that in 1852 the congregation agreed without any dissenting voice to the junction with the Free Church, and it was too late now for the pursuers to claim the property.

The Court of Session held, that the pursuers were barred by acquiescence, and assoilzied the defenders.

The pursuers appealed, maintaining, in their case, that—1. The appellants, as members of the congregation of United Original Seceders at Carnoustie, and as the persons for whose use and benefit the chapel and other property was provided, were entitled to insist, that the property should be applied to its destined uses, and not diverted therefrom. 2. The appellants, John Cairncross and William Kidd, being two of the trustees in whom the property of the chapel is vested, it is not only their right, but their absolute duty, to maintain the purposes of the trust, and prevent them from being violated or defeated. 3. The appellants, whether as members of the congregation or as trustees for its behoof, could not bind themselves, either expressly or by implication, to consent to the purposes of the trust being altered or subverted. 4. The facts and circumstances founded on by the respondents did not support the plea of personal bar, on which the respondents relied, even supposing such plea to be relevant in the circumstances. 5. Even supposing, that the appellants had, without due consideration, assented to the union with the Free Church, or acted in such a way as to imply such assent, still, on being better advised, they would be entitled to retrace their steps, recur to the written terms of the trust, and insist on these terms being strictly carried out.

The judgment of the Court of Session was supported on the ground that—1. The appellants acquiesced in—at all events did not tempestivè dissent from—the union with the Free Church, and were by their conduct barred from insisting in the action. 2. The respondents, being ready to comply with the test of adherence prescribed by the title, could not, on the ground of nonadherence, be deprived of their right to, and enjoyment of, the property in question.

R. Palmer Q.C., and Neish, for the appellants.—The judgment of the Court below was wrong. The trust was plainly declared to be, that the property was to be held for the use of the United Original Seceders, and those who adhered to those principles, and it was competent for any of the beneficiaries to enforce the trust, or take steps to prevent its breach. It was not competent for any number of the trustees, however numerous, to alienate the property to a different purpose, against the consent of any one of the beneficiaries—the Kirkintilloch case, Craigie v. Marshall, 12 D. 523. In such a case it is immaterial whether the majority of the beneficiaries agreed in the breach of trust, or whether a long time has elapsed. This is like a suit by the Attorney General in England for the misapplication of charity funds— Attorney General v. Munro, 2 De G. & Sm. 122. Here the appellants were justified in raising this action, and even if some delay and misunderstanding have been established against them, they are not estopped from maintaining the action. The plea of personal bar, even if it were proved, would be inapplicable in such a case as the present— Thompson v. Candlemakers, 17 D. 765. But even admitting that a personal bar is to be admitted to proof, there was nothing in the conduct of the appellants which amounted to anything like acquiescence or waiver of their clear rights at law— Rochdale Canal Co. v. King, 2 Sim. N.S. 89; Clarke v. Hart, 6 H. L. Cas. 633.

The Lord Advocate (Moncreiff), and Anderson Q.C., for the respondents, contended, that the appellants were barred by their conduct from insisting in the action— Craigdallie v. Aikman, 6 Paton's Rep. 635; Picard v. Sears, 6 A. & E. 469.

Cur. adv. vult.

Lord Chancellor Campbell.—My Lords, in this case I am of opinion, that the unanimous judgment of the Inner House in favour of the defenders ought to be affirmed. The counsel for

_________________ Footnote _________________

¹ See previous reports 20 D: 30 Sc. Jur. 611. S. C. 3 Macq. Ap. 827: 32 Sc. Jur. 711.

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the pursuers at your Lordships' bar contended, that this suit was to be treated like an information in the Court of Chancery in England, in the name of the Attorney General, for the misapplication of the funds of an endowed charity, arguing, that neither consent nor lapse of time could be any bar. Upon this principle, if all the pursuers had actually concurred in the union of the Associate Congregation of Carnoustie with the Free Church, and Mr. Meek, the incumbent, having died, they had joined in the election and call of a successor, according to the rules and discipline of the Free Church, and had applied to the Free Church Presbytery of Arbroath, that the object of their choice should be instituted as the new Free Church Minister at Carnoustie, they might many years afterwards have commenced a suit to eject him, on the ground, that he did not belong to the Associate Synod of Original Seceders. We need not now inquire how far this is to be considered an endowed charity, (if we had to decide that question I should certainly consider that it is an endowed charity,) or what may be the rights, under the deed of 8th October 1829, of the Associate Synod of Original Seceders, or of members of that religious persuasion who may hereafter become inhabitants of Carnoustie. It is enough to observe, that the present pursuers bring this action as individuals, for a personal wrong which they individually suffer from the wrongous intromission of others. Therefore, in this case, first, the maxim will apply, “volenti non fit injuria;” and secondly, the doctrine will apply which is to be found, I believe, in the laws of all civilized nations, that if a man, either by words or by conduct, has intimated, that he consents to an act which has been done, and that he will offer no opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act he had so sanctioned, to the prejudice of those who have so given faith to his words, or to the fair inference to be drawn from his conduct. Both these defences are set up to the present action. There is strong evidence to support the first, and to shew, that, according to the rules which govern the proceedings of deliberate assemblies, the union of the Associate Congregation of Seceders at Carnoustie with the Free Church, the pursuers being present, was carried nemine dissentiente. But on this point there is some conflicting evidence, and there may be a difference of opinion, and therefore I do not make it the reason of my decision. I agree with the Lord Justice Clerk and the other Judges who thought, that “it is not necessary to prove concurrence on the part of the pursuers in the proceedings now challenged, and that proof of positive assent or concurrence is not necessary.” I am of opinion, that, generally speaking, if a party having an interest to prevent an act being done, has full notice of it having been done, and acquiesces in it, so as to induce a reasonable belief that he consents to it, and the position of others is altered by their giving credit to his sincerity, he has no more right to challenge the act, to their prejudice, than he would have had, if it had been done by his previous license. We are asked what these Scotch Judges mean by tempestivè or in debito tempore; and, in analogy to the rules of negative or positive prescription, how many years, months, or days constitute “debtium tempus”? I answer, that it is not to be measured by any cycle of the heavenly bodies, and it must depend upon the circumstances of each particular case. The objection must be made before there has been such acquiescence with knowledge as to induce a reasonable belief, that the act will not afterwards be challenged. The owner of a mill to which all the lands in a barony are thirled, if he sees an occupier of land within the barony erecting a grist mill, must not placidly look on till the new mill has been completed and the miller has established a thriving business by laying out all his capital upon it, and then bring an action for damages, praying for an interdict, with a petitory conclusion, that the mill may be prostrated, as having been illegally erected. In the present case it was known to the pursuers, and to all Carnoustie, that on 3d of June 1852 there was said to be a vote of the kirk session for the union, and that, on the 6th of July 1852, the Rev. Mr. Meek had presented himself to the Free Presbytery of Arbroath, and that he had been solemnly admitted as the Free Church minister of the Carnoustie congregation, formerly attached to the Associate Synod of Original Seceders. The present action was not commenced till July 1856, and for above three years there had been not the slightest complaint by the pursuers. On the contrary, one of them had officiated occasionally as precentor in the meeting house at Carnoustie under the Rev. Mr. Meek, who had become a member of the Free Church Presbytery of Arbroath, and qualified to be moderator of the General Assembly of the Free Church of Scotland. If the objection is now made tempestivè, so it might be made twenty years hence, and a similar action might then be maintained by one individual, who, although he did not actively promote the union, had all along acquiesced in it, and professed, that he approved of it, while the whole of the Free Church, and the whole of the Associate Synod of Original Seceders, except himself, rejoice in the amalgamation. It would be little creditable to the law of Scotland if the confusion, and hardship, and injustice which must necessarily be the effect of such a proceeding were to meet with judicial sanction. But various authorities were cited (and they might be greatly multiplied) to prove, that in Scotland, according to well recognized principles and unquestioned decisions, such an attempt must fail. I do not consider it at all necessary to refer more particularly to these authorities, or to review the analogous class of cases in England, at the head of which stands Picard v. Sears. I confess I should have been sorry if we had

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been obliged to pronounce a judgment which would have given such facility to the stirring up and the revival of disputes between the different dissenting religious persuasions into which Scotland is unhappily divided, and I feel great satisfaction in being able, according to the well established principles of Scottish law, to advise your Lordships, that this appeal be dismissed with costs. I ought to mention, that my noble and learned friend Lord Wensleydale, who heard this case, dissents from the judgment that I have proposed to your Lordships.

Lord Kingsdown.—My Lords, having had an opportunity of hearing and considering the opinion which has just been expressed by my noble and learned friend on the woolsack, it is I unnecessary for me to say more than that I concur both in the conclusion at which he has arrived, and in the principles upon which that conclusion is founded. The question is not what I would be the result, if the information had been filed in this country by the Attorney General, or if a similar proceeding had been taken by the Lord Advocate in Scotland, if he had such a power (I do not know whether he has or not). I regard this as simply a suit instituted by these parties in respect of their own individual interests; and, in respect of those interests, I think that they are precluded by their own conduct from maintaining this action.

Interlocutors affirmed, and appeal dismissed with costs.

Solicitors: For Appellants, Deans and Rogers, Solicitors, London; James Finlay, S.S.C., Edinburgh.— For Respondents, Dodds and Greig, Solicitors, London; Auld & Chalmers, W.S., Edinburgh.

1860