Ferguson v Kinnoull

JurisdictionEngland & Wales
Judgment Date09 August 1842
Date09 August 1842
CourtHouse of Lords

English Reports Citation: 8 E.R. 412

House of Lords

The Re
and
John Ferguson, Minister of Monivaird, and Others
-Appellants
the Right Honourable Thomas Robert Earl of Kinnoull, and the Re
and
Robert Young, Preacher of the Gospel, Presentee to the Church and Parish of Auchterarder
-Respondents

S.C. 4 St. Tr. N.S. 785; 1 Bell, 662. Considered in Sturrock v. Greig, 1849, 11 Dunlop, 1220, 1235; Lockhart v. Presbytery of Deer, 1851, 13 Dunlop, 1296; and cf. M'Millan v. General Assembly, Free Church, 1859, 22 Dunlop, 290, 323. On point as to judicial responsibility, see Calder v. Halket, 1839-40, 3 Moo. P. C. 28; Sinclair v. Broughton, 1882, L.R. 9 Ind. App. 152, 172; on point as to malice, cited in Allen v. Flood (1898), A.C. 63; see also Leatham v. Craig (1899), 2 I. R. 677.

Action for Damages - Corporation - Church Pleading.

[251] The Rev. JOHN FERGUSON, Minister of Monivaird, and Others,-Appellants; the Right Honourable THOMAS ROBERT Earl of KINNOULL, and the Rev. ROBERT YOUNG, Preacher of the Gospel, Presentee to the Church and Parish of Auchterarder,-Respondents [July 7, 8, 11; August 9, 1842]. [S.C. 4 St. Tr. N.S. 785; 1 Bell, 662. Considered in Sturrock v. Greig, 1849, 11 Dunlop, 1220, 1235; LocJehart v. Presbytery of Deer, 1851, 13 Dunlop, 1296; n and cf. M'Millan v. General Assembly, Free Church, 1859, 22 Dunlop, 290, 323. On point as to judicial responsibility, see Colder v. Halket, 1839-40, 3 Moo. P. C. 28; Sinclair v. Broughton, 1882, L.R. 9 Ind. App. 152, 172; on point as to malice, cited in Allen v. Flood (1898), A.C. 63; see also Leatham v. Craig (1899), 2 I. R. 677.] Action for Damages-Corporation-Church Pleading. If the law casts any duty upon a person which he refuses or fails to perform, he is answerable in damages to those whom his refusal or failure injures. If several are jointly bound to perform the duty, they are liable, jointly and severally, for the failure and refusal. Persons having judicial functions, but being also required to perform ministerial acts, may be sued for damages occasioned by their neglect or refusal to perform such ministerial acts. In such action no allegation of malice is necessary. The taking on his trials a presentee to a church in Scotland, is a ministerial act which the Presbytery is bound to perform, and for the neglect or refusal to perform which every member of the Presbytery is liable to make compensation in damages to the party injured. And he may maintain such action against the members collectively and individually. On the 21st of December 1839, the Respondents instituted a suit against the Appellants, for reparation and damages. The summons stated that the church and 412 FERGUSON V. KINNOULL (EARL of) [1842] IX CLARK & FINNELLY, 252 parish of Auchterarder having become vacant by the death of the Rev. Charles Stewart, on the 31st of August 1834, the Earl of Kinnoull, in September 1834, issued a deed of presentation, in favour of the Rev. Robert Young, nominating and presenting him to be minister of the said church and parish, and giving, granting, etc. the stipend and other profits belonging to the said church; requiring thereby the Moderator and the Presbytery of Auchterarder to take trial of the qualifications, etc. of the said Robert Young; and after [252] having found him qualified, to admit and receive him, and give him his act of ordination: That at a meeting of Presbytery, on the 14th October 1834, the aforesaid deed of presentation, together with a certificate of the patron's having qualified to Government, the presentee's letter of acceptance of said presentation, certificate of his having qualified to Government, parochial certificate, and a certificate signed by five ministers of Dundee, that the presentee was a licentiate of the Presbytery of Dundee, with an engagement to produce an extract of his license so soon as a meeting of the Presbytery of Dundee should be held, were all given in and read, and appointed to lie on the table of the Presbytery until the next meeting: That at the next meeting of the Presbytery, on the 27th October 1834, there was produced an extract of the license of the pursuer, the Rev. Robert Young, as a preacher of the Gospel, and a testimonial in his favour by the Presbytery of Dundee: That the minutes of the Presbytery of Auchterarder declared that all the documents usually given in, in cases of this kind, having already been laid on the table, the Presbytery did so far sustain the presentation as to appoint a day for moderating in a call to Mr. Young to be minister of that church and parish: That after certain procedure, the Presbytery, on 7th July 1835, did, on the sole ground that a majority of the male heads of families, communicants in the parish of Auchterarder, had dissented, without any reason assigned, from his admission as minister, refuse to make trial of his qualifications, and did then reject him as presentee so far as regarded the particular presentation in his favour, and the occasion of the vacancy in the parish; and intimation of the determination was directed to be forthwith given to the patron and presentee, which was done accordingly: That the pur-[253]-suers, as patron and presentee respectively, thereupon instituted a process against the members of the Presbytery of Auchterarder, collectively and individually, to have the rights of the patron and presentee declared by the Court of Session. The summons then recited the decree of the Court, pronounced in March 1838, whereby it was declared that " the Earl of Kinnoull has legally, validly, and effectually exercised his right as patron of the church and parish of Auchterarder, by presenting Robert Young to the said church and parish: That the defenders, the Presbytery of Auchterarder, did refuse, and continue to refuse, to take trial of the qualifications of the said Robert Young, and have rejected him as presentee to the said church and parish, on the sole ground (as they admit on the record) that a majority of the male heads of families, communicants in the said parish, have dissented, without any reason assigned, from his admission as minister: Find, that the said Presbytery in so doing have acted to the hurt and prejudice of the said pursuers, illegally, and in violation of their duty, and contrary to the provisions of certain statutes libelled on ; and in particular, contrary to the provisions of the statute of 10th Anne, cap. 12." That on the 3d of April 1838, a memorial was presented to the Presbytery by the pursuers, as patron and presentee, setting forth the above decree, and requiring the members of Presbytery " to repair so far the injury decreed to have been done, by taking Robert Young on trials, and thereafter proceeding in his settlement as minister of the said church, without any further delay; " nevertheless they refused to make trial of his qualifications, and to proceed in his settlement as aforesaid; and therefore the pursuers, for their respective interests as patron [254] and presentee, protested that the Presbytery, and the individual members thereof, should be, conjunctly and severally, liable for all loss occasioned to the pursuers, or either of them, through such refusal or delay. The summons then stated that the Presbytery had referred the matter to the General Assembly, by the members of which the conduct of the Presbytery had been approved ; and an appeal was directed to be presented to the House of Lords, against the decree of the Court of Session: That such appeal was presented, and the decree was confirmed (ante, Vol. VI. p. 646): That a fresh order of the Court of Session, in conformity with the decision of the House of Lords, was issued and duly served on the Presbytery, but that the members thereof still refused to take Robert Young on his 413 IX CLARK & FINNELLY, 255 FERGUSON V. KINNOULL (EARL of) [1842] trials; whereupon the pursuers caused a notarial protest to be served upon the Presbytery, and upon each individual member thereof, intimating that they and each of them ought to be held liable to the pursuers for all the loss, etc. sustained through the illegal refusal of the said Presbytery, and individual members thereof, to implement and give full effect to the judgments of our said Lords, and of the House of Lords, by taking trial of the qualifications of Robert Young, and admitting and receiving him minister of Auchterarder as aforesaid. The summons then alleged a specific act of refusal, on the 2d of July 1839, by a majority of the Presbytery resolving to refer the above documents simpliciter to the General Assembly; it described the loss thereby inflicted oh the pursuers, and prayed that the persons who composed the majority at the meeting where such refusal was made, should be decerned and ordained, conjunctly and [255] severally, to make payment to the pursuers respectively, of damages, in reparation of the wrong done to, and injury and damage sustained by them, in respect of the illegal refusal of the defenders to take trial of the qualifications of Robert Young. The defenders (the present Appellants) put in several pleas, alleging in substance,- That the conclusions of the libel are directed against the defenders solely as individuals, in consideration of acts alleged to have been done by the Presbytery of Auchterarder in its official and corporate capacity; and as the defenders as individuals could not competently have taken the pursuer Mr. Young on trial, they cannot be made individually responsible for the alleged refusal of the Presbytery to do so, unless it were libelled that they acted maliciously. That it is altogether incompetent to pursue the individual defenders for acts done in a lawful Court by the Presbytery itself, on the allegation that they constituted the majority present at a particular meeting, especially as the Presbytery and its members are not parties to this action, either individually or as a body. That even if this action had been directed against the Presbytery in...

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