General Assembly of the Free Church of Scotland v Lord Overtoun
| Jurisdiction | Scotland |
| Judgment Date | 06 December 1904 |
| Date | 06 December 1904 |
| Docket Number | No. 38. |
| Court | Court of Session |
Lord Justice-Clerk, Lord Young, Lord Trayner, Lord Moncreiff.
Process—Appeal to House of Lords—Petition to apply judgment—Discretion of Court to delay.—
In an appeal the House of Lords reversed the decision of the Court of Session, and remitted the case to them with a direction to declare in terms of certain declaratory conclusions.
On a motion in the Single Bills to apply the judgment the respondents stated certain objections to the motion being granted, and moved that the case should be sent to the Summar Roll.
The Court (Lord Young dissenting) refused the motion, and applied the judgment, holding that their functions in the matter were purely ministerial.
(Ante, 4 F. p. 1083, H. L. reports in the present volume, p. 1.)
In the appeal at the instance of the General Assembly of the Free Church of Scotland and others against Lord Overtoun and others, the House of Lords, on 1st August 1904, pronounced the following judgment:1—‘That the said interlocutors, complained of in the said appeal, be, and the same are hereby, reversed: And it is further ordered, that the cause be, and the same is hereby, remitted back to the Court of Session in Scotland, with a direction to declare (1) that the association or body of Christians calling themselves the United Free Church of Scotland has no right, title, or interest in any part of the whole lands, properties, sums of money, and others which stood vested, as at the 30th day of October 1900, in the Right Hon. John Campbell, Baron Overtoun, and others, as General Trustees of the Free Church of Scotland; and (2) that the said appellants (pursuers) and those adhering to and lawfully associated with them, conform to the constitution of the Free Church of Scotland, are and lawfully represent the said Free Church of Scotland, and are entitled to have the whole of said lands, property, and funds applied according to the terms of the trusts upon which they are respectively held for behoof of themselves and those so adhering to and associated with them, and their successors, as constituting the true and lawful Free Church of Scotland, and that the defenders, the said Right Hon. John Campbell, Baron Overtoun, and others, as General Trustees foresaid, or the defenders second enumerated, or those of the defenders in whose hands or under whose control the said lands, property, and funds may be for the time being, are bound to hold and apply the same (subject always to the trust after mentioned) for behoof of the pursuers and those adhering to and associated with them as aforesaid, and subject to the lawful orders of the General Assembly of the said Free Church of Scotland, or its duly appointed Commission for the time being, and in particular that they are bound to denude themselves of the whole of said lands, property, and funds in favour of such parties as may be nominated as General Trustees by a General Assembly of the Free Church of Scotland, or its duly appointed Commission for the time being, but subject always to the trusts upon which the said lands, property, and funds were respectively held by the said defenders for behoof of the Free Church of Scotland as at 30th October 1900; and
to do therein as shall be just and consistent with this judgment and direction.’
The appellants presented a petition praying the Court to apply the judgment, and to declare in terms thereof.
When the case was called in the Single Bills counsel for the appellants moved the Court to grant the prayer of the petition, and maintained that the Court was bound to pronounce an interlocutor in terms of the direction of the House of Lords without delay. The functions of the Court were merely ministerial, and excluded the exercise of any discretion.1
Counsel for the respondents moved that the case should be sent to the Summar Roll. He stated that he proposed to put in a minute shewing that the appellants had, since the date of the judgment, admitted that they could...
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