FERGUSON against KINNOULL. THE REV. JOHN FERGUSON, MINISTER OF MONIVIARD, AND OTHERS (MAJORITY OF THE PRESBYTERY OF AUCH- Appellants. T ERARD ER) - - - AGAINST THE RIGHT HONOURABLE THOMAS ROBERT, EARL OF KINNOULL, AND THE REV. ROBERT YOUNG, PREACHER OF THE GOSPEL, PRESENTEE TO THE CHURCH AND Respondents. PARISH OF AUCHTERARDER - - JUDGMENT OF THE HOUSE OF LORDS ON APPEAL FROM THE COURT OF SESSION, AUGUST 9, 1842. (Reported in 9 Cl. & F. 251, sad 1 Bell, 662.) After the judgment of the House of Lords in the Auchterarder case(a) the Rev. Robert Young, who had been presented to the church of Auchterarder by the patron, the Earl of Kinnoull, again applied to the Presbj tery to take him on trial of his qualifications, in accordance with the judgment of the House. The Presbytery by a majority of its members referred the application to the General Assembly. The patron and the presentee instituted a suit in the Court of Session for reparation and damages against the majority of the Presbytery, and obtained an interlocutor. The defenders appealed. Held by the House of Lords- !. Failure to perform Legal Duty Action for Damages. If the law casts any public duty upon a person, which be refuses or fails to perform, he is answerable in damages to those whop his refusal or failure injures. 2. Joint Liability Majority of Corporation or other Body. If several are jointly bound to perform the duty, they are liable jointly and severally for their failure or refusal. Where the refusal is the act of the majority of a corporation or other body, the members of the majority are individually liable. 3. Judicial Functionaries and Ministerial Acts. 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, and no allegation of malice is necessary to support the action.(b) 4. Church of Scotland Liability of Presbytery for Refusal to take Presentee on Trials. Taking a presentee to a Church in Scotland on his trials is a ministerial act which the Presbytery is hound to perform, and members of the Presbytery refusing or neglecting to perform it are liable, jointly and severally, to make compensation in damages to the parties injured. . (a) Above, p. 1. (b) See later cases as to judicial responsibility in note to Calder against Halket, above, p. 481. 787] Ferguson, against Kinnoull, 1842. [788 This action arose out of the refusal of the appellants (the majority of the Presbytery of Auchterarder) to act upon the judgment of the House of Lords in the Auchterarder case(a) by taking the Rev. Robert Young, presentee to that church, on trial of his qualifications, and settling him, if found qualified, as minister. On the 21st of December 1839 the respondents, Lord Ktnnoull, the patron, and the Rev. Robert Young, his presentee, instituted a suit against the appellants for reparation and damages. The summons, after stating that the Rev. Robert Young had been duly presented to the vacant church of Auchterarder by the Earl of Kinnoull, the legal patron, and that the Presbytery acting under an interim act of the General Assembly of 1834 commonly known as the Veto act had refused to make trial of his qualifications, on the sole ground that a majority of the male heads of families, communicants in the parish, had dissented without reason assigned from his admission as minister, went on to recite the decree pronounced by the Court of Session in March 1838 in the suit instituted by the Earl of Kinnoull against the Presbytery of Auchterarder, 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." The summons further stated that, on the 3rd 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 farther delay ; " that 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 (a) Above, p. 11. as patron 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 also 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.(a) 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 trials ; whereupon the pursuers caused a notarial protest to be served upon the Presbytery, and upon each individual member thereof, that they and each of them ought to be held liable to the pursuers for all the loss, &c., 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 2nd 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 on 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 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 ,vere directed against the defenders solely as individuals, in consideration of acts alleged to have been done by the Presbytery of Anchterarder in its official and corporate capacity; and as the defenders as individuals could not competently have taken the pursuer Mr. Young on trial, they could not be made individually responsible for the alleged refusal of the Presbytery to do so, unless it were libelled that they acted maliciously. (a) Above, p. 1. 789] Ferguson against Kinnoull, 1842. [790 That it was 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 were not parties to this action, either individually or as a body. That even if this action had been directed against the Presbytery in its corporate capacity, its individual members could not be rendered responsible in damages for acts done by them as a court, concerning the subject-matter of their jurisdiction, and under the direction of the superior ecclesiastical judicatory of this country, unless malice were averred. That there was no order on the Presbytery to take the pursuer Mr. Young on trials on the 2nd of July 1839; nor, indeed, was an order upon it ever pronounced to any effect whatever. The members were therefore fully entitled to refer the matter to the superior Church Court at their meeting of the 2nd of July 1839: nor did they, in doing so. refuse to obey any order of the Court of Session or of the House of Lords. As this was the sole ground of damage libelled against the defenders as forming the alleged majority of the said meeting, the action ought to be dismissed. That by the constitution of the Church of Scotland and the statutes relative thereto, it was not competent for any patron or presentee to sue a Church Court, or its individual members, for damages on the grounds libelled in this action, nor had the pursuers any sufficient title to pursue the same. That the pursuers were not entitled to damages from the defenders ; for that the Earl of Kinnoull, as patron of the church and parish of Auchterarder, in the event of the Presbytery refusing to receive his presentee, was only entitled to retain the vacant stipend under the Act 1592, c. 17. That the Presbytery was by law the only competent court by which the right of a presentee to the fruits of the benefice could be completed by ordination ; and unless the pursuer, Mr. Young, could establish that he would have been ordained by the Presbytery, or could have compelled ordination, he could prove no damage in this matter. That the pursuer, Mr. Young, was...
