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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Magistrates of Glasgow v. Paton and Others [1866] UKHL 261_1 (5 March 1866)
URL: http://www.bailii.org/uk/cases/UKHL/1866/01SLR0261_1.html
Cite as: [1866] UKHL 261_1, 1 ScotLR 261_1
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SCOTTISH_SLR_House_of_Lords
Page: 261↓
House of Lords.
v.
Subject_Process — Church — Disjunction and Erection — Intimation to Heritors — Stat. 7 and 8 Vict., c. 44.
Facts:
Terms of an intimation to heritors of the dependence of a summons of disjunction and erection of a district into a parish, under the Act 7 and 8 Vict., c. 44, which held (rev. Court of Teinds, diss. Lord Chelmsford) not to be sufficient compliance with section 4 of the statute.
This is an appeal from an interlocutory judgment pronounced by the teind Court as to the sufficiency of “a special intimation” to heritors under the 7th and 8th Victoria, cap. 44, entitled “An Act to facilitate the disjoining or dividing of extensive or populous parishes, and the erecting of new churches in that part of the kingdom called Scotland.” By an Act passed in the Parliament of Scotland in the year 1707, entitled “Act anent Plantation of Kirks and Valuation of Teinds,” the Court of Session are authorised, empowered, and appointed to judge, cognosce, and determine in all affairs and causes which by the ancient laws and practice of Scotland were referred to, and pertained and belonged to, the jurisdiction and cognisance of the commissioners appointed for the plantation of kirks and valuation of teinds, as fully and freely as the said Court did or might do in other civil causes; and particularly, inter alia, to disjoin too large parishes, to erect and build new churches, to annex and dismember churches as they should think fit, conform to the rules laid down and powers granted by the 19th Act of the Parliament 1633, the 23d and 30th Acts of the Parliament 1690, and the 24th Act of the Parliament 1693, in so far as the same stood unrepealed; the transporting of kirks, disjoining of too large parishes, or erecting and building of new kirks, to be always with consent of the heritors of three parts of four at least of the valuation of the parish whereof the kirk was craved to be transported, or the parish to be disjoined and new kirks to be erected and built. By the construction put upon this clause of the Act, it came to be the rule that no process for the purpose mentioned could be competently brought into Court without the consent of three-fourths of the heritors having been previously obtained. Subsequently, however, in the year 1844, another Act was passed upon the subject (7 and 8 Vict. cap. 44). The preamble of that Act narrates the previous statutes, and in particular that of 1707, and then proceeds to declare that whereas it was expedient to afford facilities and to make further provision for the disjoining or dividing of extensive or populous parishes, from and after the date of the Act so much of the Act of 1707 as required the consent of the heritors of three parts of four at least of the valuation of the parish whereof the kirk was craved to be transported or the parish to be disjoined and new kirks to be erected and built, should be repealed, and that the consent of the heritors of a major part of the valuation of any parish should be necessary and sufficient in all cases in which the consent of the heritors of three parts of four of the valuation of such parish was required by the said Act except as thereinafter provided. The second section provides that a parish may be
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deemed and held to be too large, and may as such be disjoined or divided under the provisions of the Act of 1707 as altered and amended by reason of the largeness of the population of such parish, although the superficial measurement thereof may not be to large for one parish. The third section enacts that it shall not be a valid objection to the competency of any process which should be brought for disjoining and dividing a parish or parishes and erecting a new kirk or kirks under the before-mentioned provisions, that the consent of the heritors of a major part of the valuation of the parish to be disjoined or divided has not been given previous to such process having been brought into Court; and that it should be lawful for the Lords of Council and Session before whom any such process should be brought to appoint special intimation thereof to be made in such form and manner as they should direct to such of the heritors of the valuation of the parish as should not have already either given their consent, or judicially stated their dissent; and to sist proceedings in such process for a definite time, for the purpose of allowing such heritors to state judicially their consent or dissent, and declared that such of them as should not within the time fixed by the said Lords, and specified in such intimation, judicially state their dissent should, in computing the statutory proportion of consents, be reckoned as consenting heritors. The fourth section provides that if in any such process it shall be shown to the Lords of Council and Session, that there is already built and in good repair a church or place of worship suitable for the church of the new parish proposed to be erected, and capable of being lawfully appropriated to that purpose, whereby the expense of erecting a new or additional church would not be incurred by the heritors; and that the titulars or others having right to the teinds, out of which is to be paid not less than three-fourths of the additional stipend or stipends to be modified by reason of such disjunction or division, have consented or have stated no objection thereto after due intimation as aforesaid, it shall be lawful and competent for the Lords of Council and Session to allow such process to proceed, and to give judgment and decree therein, if, upon consideration of the whole case, it should appear to them that there were good and sufficient reasons for doing, although the heritors of a major part of the valuation of the parish to be disjoined should not have consented. The parish of Govan is situated chiefly in the county of Lanark, but also partly in the county of Renfrew. It comprehends a considerable district within the Parliamentary boundary of the city and suburbs of Glasgow, the village of Govan and surrounding district lying on the south of the river Clyde, which intersects it, and also the burgh of Partick, with the surrounding district on the north side of the river. The total population of the parish is about 100, 500 persons, of whom about 72,000 are included within the Parliamentary boundary of Glasgow, 13,700 in the village of Govan, on the south side of the Clyde, and 14,800 in the burgh of Partick, on the north side of the river. The parish church is situated on the south side of the river, and being capable of affording accommodation for about 1100 persons only, and inconvenient of access to parishioners living on the north side of the Clyde, another church was in 1834 erected in Partick, which has since been considerably enlarged, and a schoolhouse and manse built in connection with it. In 1836 a constitution for this church, as a church in connection with the Church of Scotland, was approved of by the General Assembly. It vested the property of the church in trustees, and provided for the election by the seat-holders of persons to be managers of the chapel.
The managers for the time being of this chapel on the nth of January 1864 raised an action of disjunction and erection into a parish quoad omnia of the district of Partick in the Teind Court against the University of Glasgow—who are the sole titulars of the teinds of the parish—and other parties, who, however, did not appear. The summons concluded that for the better propagation of the gospel and edification of the people, the whole district of Partick should be separated and disjoined from the parish of Govan, and erected into a separate and distinct parish, to be called in all time coming the parish of Partick—the church before referred to to be the church of the said parish, and that the minister thereof should have modified, settled, and appointed to him a stipend, to be payable out of the teinds of the said new parish.
On the 17th of February 1864, the Court, in compliance with the 7th and 8th Victoria, cap. 44, appointed intimation of the process to be made, once from the precentors' desks of the parish church of Govan and of the church of Partick, immediately upon the blessing being pronounced after the forenoon service on the Sunday; appointed intimation in similar terms to be made once in the Edinburgh Gazette and North British Advertiser newspapers; all which intimations were to be made at least ten days before the process was again moved in Court; and the pursuers were further appointed to lodge with the session-clerks of each church twenty copies of the printed summons for the use of such of the heritors or other parties interested as might apply for them. Intimation was accordingly made in the Gazette on the 19th February 1864, copies of the summons were left with the session-clerks on the following day, and intimation also given in the North British Advertiser, and on the 21st intimation was made from the precentors' desks in either church. On the 2d of March, the University of Glasgow, as sole titulars of the teinds of the parish, having lodged defences objecting to the process, and dissenting from it, the Court pronounced an order for condescendence and answers. Thereafter, on the 22d June, the magistrates of Glasgow, as heritors of Govan, moved the Court for leave to lodge a minute of dissent from the proposed disjunction and erection. After a debate on the appellants' right to appear at the date of their minute and state their dissent, the Court of Teinds (Lord Neaves dissenting) on 6th July 1864 pronounced the interlocutor now brought under review, wherein they refused to receive the said minute, and found the Magistrates liable in expenses ( 2 Macp. 1307).
Sir Hugh Cairns, on the part of the appellants, said that the first point he should submit was this, that the third section of the Act under which this process was brought required a precise time to be mentioned in the intimation, within which the heritors should appear.
The Attorney-General said he would be happy if his learned friends would grant that they did.
Sir Hugh Cairns said they could not have proceeded under the fourth section because the titulars did not consent. What the limit of time was to be was in the discretion of the Court; but a time they must fix, and name it in the intimation, with the purpose for which it was given. The intimation in question did not in the least convey that unless the time given was made use of the heritors would be held as consenting. He might imagine two purposes for which this would have been a proper intimation—first, it would have been a perfectly proper intimation under the fourth section; second, under the third section, as a mere preliminary general intimation, in order to see whether a majority of heritors could be brought forward for the purpose of approving or disapproving the process.
Sir Hugh Cairns said he did not proceed upon the order. If this intimation was to the heritors, did it mean that the heritors were to come forward within the ten days, or before the case was again moved in Court? Then, again, from what point are the ten days to be dated? from the time the notice is given
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Sir Hugh Cairns—Oh, yes; we are all recipients of the paper. From what time were the ten days to be reckoned?—from the date of the paper, the day when it was delivered, or from the Monday when the news it contains commenced.
The Attorney-General said on Saturday.
Sir Hugh Cairns said his learned friend answered the question in his own way. The paper must be considered as issued as much on Monday as on Saturday. Next, there was no sist of proceedings for a certain time, because within those ten days the University of Glasgow gave in their defences. Again, what was special intimation? Not a mere publication addressed to no one at all. There was no difficulty in discovering who the heritors were, and it was open to argument that each heritor was entitled to individual notice, though he would not press the right so far.
The Lord Chancellor—Perhaps the Lord Advocate can inform us whether, like “special service” here, “special intimation” has any particular meaning by the law of Scotland.
The Lord Advocate said it had not, but meant something which was not general.
Sir Hugh Cairns then proceeded to read and criticise the judgments of the Courts below. All the learned Judges had supported the form of intimation, though each in turn had cast a stone at it—it was approved by them, though buried under their anathemas.
The Lord Advocate .then followed on the same side.
The Attorney-General said his learned friends had rested their case upon the third section, and properly so. They could not have done so on the fourth. There was a fallacy in confounding the words “erect” and “build,” erect meaning simply to introduce into a parish an already existing church, in illustration of which the learned counsel referred to the Act of 1707; and the 7th and 8th Victoria, cap. 44, made the same distinction, so that the fourth section would not apply.
The Attorney-General said the appellants had not insisted that it did, and he would therefore pass on. First, the want of the requisite number of consents was no preliminary objection to the Courts entertaining the process at all. They were necessary to substantiate jurisdiction only. Secondly, as to the form and manner of the intimation, everything of that kind was put by statute within the discretion of the Court; and therefore criticism upon these subjects was entirely out of place. This form had been in use for many years, and there had no doubt been many cases such as the present; and all previous proceedings would be invalidated if the consent of the heritors was not ascertained in the manner required, as the foundation of the jurisdiction would be gone and invalidated. Very strong grounds, therefore, should be shown before their Lordships disapproved the previous practice. Now what is a special intimation? The Lord Justice-Clerk thought special had reference to the subjects of the intimation. Individual notice was impossible, because the valuation roll was made up only once a year, while the heritors were continually changing. This was the usual form in which notice is given to heritors. Dr Cook's Styles and Forms in Church Court Procedure showed it was also the form used in cases of augmentation of stipend, in conformity with the Act 48 Geo. III., c. 116, and the Act of Sederunt founded on it. Then it was said this notice might be supposed to be one to titulars under the fourth section; but it was necessary to call the titulars as parties, so that no notice to them was required. And, again, that it might be supposed to be a general preliminary notice. The Court had no power to order such notice. Besides, it bore to be given in terms of the statute, mentioned to the heritors, and showed it was to them it was addressed. So much for criticism upon form and manner. Next, as to the sist, it was said this was not so entire a sist as required by the statute; but it was never meant that minutes of dissent might not be lodged during that time, though no action would of course be taken upon them—so also might defences be lodged for the University of Glasgow. Then, as to when the time commenced to run, every person knew the date of a paper when it reached him. There were objections taken to the multiplication of ways taken by the Court in order to give substantial information. The date of publication was, of course, the time from which the ten days was to be computed. The sist was for a definite purpose, and it was to be mentioned in the intimation. The terms of the Act were repeated in the intimation, and the heritors must be presumed to know something of a statute which concerned their rights.
The Attorney-General said he did not. If they had subsequently any substantial reason of objection, the consent inferred by the statute would not exclude them; they might object to the situation, to the sort of church, and to other matters of that nature. He concluded by submitting that the intimation given perfectly satisfied the requirements of the statute.
Mr Jessel having followed the Attorney-General on the part of the respondents, Sir Hugh Cairns replied for the appellants. He said that the Attorney-General had complained that the appellants came there to overthrow substance in order to establish form. The reverse was the case, because they were only endeavouring to preserve their own property; they had had no actual notice, and the respondents were endeavouring to saddle them with a constructive consent. It was next said that if the form of this intimation were overthrown, all previous proceedings of a similar kind would be invalidated. There could not be many, if any, cases of a presumed consent since 1844, and besides it was a mere chimera to suppose that after the first order had been made, a parish disjoined, and the teinds appropriated, that the proceedings could be declared invalid in consequence of a defect in the notice. The attorney-General had also said that the heritors were not precluded from appearing at a subsequent stage of the proceedings. How could they appear? they were not called as, and could not be, parties to the action in any way.
Sir Hugh Cairns said the heritors could not be; their right was to prevent any process of disjunction being brought into Court unless with their consent. It was then said that this was the usual form in which notice was given to heritors, but the notices referred to differed very much in effect from the present—by them no one was precluded from appearing subsequently. Then, as regarded the valuation roll, it was made up every year; and though there might be changes in the intervals, these could not be so extensive as to prevent persons knowing by personal canvass whether a majority of the heritors were in favour of a disjunction or not. Now, as regarded the notice itself, the third section of the Act distinctly pointed out two processes—one the fixing a definite time for the sist, and the other a definite time during which the heritors might appear and state their dissent. These terms might be made identical, but they need not be; the sist might be, for example, for two months, and the time for the heritors to appear six weeks. In this intimation no time whatever was mentioned within which the heritors were to appear. The Attorney-General had
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The Lord Chancellor—This is a question merely of form, but still of some nicety, and the House will therefore take time to consider. Judgment will be given in a few days.
Friday, April 20.
Judgment was delivered to-day.
The Lord Chancellor said—My Lords, this appeal arises in consequence of an action having been brought in the Court of Session, having for its object the separation of the district of Partick from the parish of Govan. Until the year 1844 such a proceeding was governed by a statute passed in 1707, entitled “An Act anent the plantation of kirks and valuation of teinds,” which contained a provision that no process for the purpose of dividing parishes or erecting new kirks could be brought into Court until the consent of three-fourths of the heritors had been obtained. In 1844, however, another Act was passed upon the subject—the 7th and 8th Victoria, cap. 44—the first section of which provides that the consent of three-fourths of the heritors shall not henceforth be required, but that it shall be sufficient and necessary that the consent of the heritors of a major part of the valuation of any parish sought to be divided has been obtained. The question in the present case arises upon the third section, which enacts that it shall not be a valid objection to the competency of any process which shall be brought for disjoining or dividing a parish or parishes, and erecting a new kirk or kirks, under the provisions of the Act of 1707 as altered and amended, that the consent of the heritors of a major part of the valuation of the parish to be disjoined or divided has not been given previous to such process being brought into Court; and it shall be lawful for the Lords of Council and Session before whom any such process shall have been brought to appoint special intimation thereof to be made, in such form and manner as the said Lords of Council and Session shall direct, to such of the heritors of the valuation of the parish as shall not have already either given their consent or judicially stated their dissent, and to sist proceedings in such process for a definite time, for the purpose of allowing such heritors to state judicially their consent or their dissent; and such of them as shall not, within a time to be fixed by the Lords of Council and Session, to be specified in such intimation as aforesaid, judicially state their dissent, shall, in computing the statutory preparation of consents, be reckoned as consenting heritors. The present process was brought by several gentlemen who describe themselves as managers of the church of Partick, and, after setting out the grounds for their application, concludes, that the lands and others forming the district of Partick should be separated and disjoined from the parish of Govan and erected into a separate and distinct parish, to be called in all time coming the parish of Partick. The University of Glasgow is the sole titular of the parish, and in that character was made a party to the action. The only proceeding which it is necessary for the purposes of the present question to refer to is the second plea in law for the defenders. That plea is to the effect that the pursuers are bound, in terms of the statute 7 and 8 Vict. c. 44, to obtain the consent of the heritors holding a major part of the valuation of the parish. On the state of the record the learned Judges in the Court below pronounced an interlocutor, dated 17th February 1864, appointing, in terms of the statute, intimation of the conclusions of the summons to be made once from the precentors' desks of the parish church of Govan and of the church and chapel of Partick, within the said parish respectively, immediately upon the blessing being pronounced after the forenoon service on the Sunday, of which intimation certificates by the respective precentors shall be sufficient evidence; and, further, appointing intimation to be made also in the Edinburgh Gazette and in the North British Advertiser newspaper—all which intimations were directed by the interlocutor to be made at least ten days before the process shall be again moved in Court. Intimation was accordingly given in the Edinburgh Gazette on the 19th, in the North British Advertiser on the 20th, and from the precentors' desks on the 21st February. It consisted of a notice that a summons of disjunction and erection had been brought at the instance of the respondent and others, managers of the church of Partick, against the University of Glasgow and others, for the purpose of obtaining the separation of the district of Partick from the parish of Govan. It then set out the interlocutor I have already mentioned, and concluded—“In terms of which interlocutor, this intimation is now made.” No dissenting parties having appeared up to the 2d of March, the Court upon that day appointed the pursuers to lodge a condescendence by the first box-day in the vacation. On the 22d June the magistrates of Glasgow tendered a miute of dissent, which, however, the Court refused to receive, upon the ground that the interlocutor of the 17th of February set out in the intimation sufficiently indicated to the heritors that they must express their dissent, if they desired to do so, within ten days. The magistrates contended that they were still in time to express their dissent, and that their minute ought to be received; and hence this appeal to your Lordships' House. It is unnecessary for me to repeat the third section of the Act—suffice it to say that it requires special intimation to be given to the heritors; and the sole question in the present case is whether such intimation as the statute requires has been given. I am of opinion that that question must be answered in the negative. The third section provides that such of the heritors as shall not, within a time to be fixed by the Lords of Council and Session, to be specified in such intimation, judicially state their dissent, shall, in computing the statutory proportion of consents, be reckoned as consenting heritors. Now, this intimation does not specify the time within which the heritors are bound to express their dissent. It is said that what that time is to be is a necessary implication from what is stated in the interlocutor of the 17th of February. That interlocutor directs that all the intimations shall be made at least ten days before the process shall be again moved in Court—certainly a strange
Page: 265↓
Interlocutor reversed.
Counsel for Appellants— The Lord Advocate (Moncreiff) and Sir Hugh Cairns, Q.C. Agents— Mr B. Maconochie, W.S., and Messrs Loch and Maclaurin, London.
Counsel for Respondents— The Attorney-General (Palmer), Mr Jessel, Q.C., and Mr Will. Agents— Messrs Jollie, Strong, & Henry, W.S., and Messrs W. & R. P. Sharp, London.