John Boyle Gray, one of the Councillors of the Royal Burgh of Glasgow, and one of the Trustees under Bell's Deed of Indenture, - Appellant; The Rev. John Forbes, and Others, - Respondents
| Jurisdiction | Scotland |
| Judgment Date | 16 August 1838 |
| Date | 16 August 1838 |
| Court | Court of Session |
English Reports Citation: 7 E.R. 439
FROM THE COURT OF SESSION.
Mews' Dig. i. 335, 354, 364; iii. 254; S.C. Macl. and R. 530. On point as to right to begin, followed in Geils v. Geils, 1851, 1 Macq. 36.
[356] APPEAL from the court of session. JOHN BOYLE GRAY, one of the Councillors of the Royal Burgh of GLASGOW, and one of the Trustee under BELL'S Deed of Indenture,-Appellant; The Rev. JOHN FORBES, and Others,-Respondents [March 12; August 16, 1838.] [Mews' Dig. i. 335, 354, 364; iii. 254; S.C. Mad. and R. 530. On point as to right to begin, followed in Geils v. Geils, 1851, 1 Macq. 36.] A summons of declarator charged the Lord Provost, magistrates, and town council of Glasgow, with the breach of an agreement entered into by their predecessors with regard to the administration of a trust fund; and prayed " that the said Lord Provost, magistrates, and council, and A.B.C.D. etc.," reciting the name of every one of them-" for themselves, and as representing the burgh and community of Glasgow, ought to be decerned." The Court of Session pronounced an interlocutor, decerning " against the defenders in terms of the conclusion of the libel," declaring them liable in expenses, and specially direct ing that no part of the expense of this litigation should form a charge on the trust fund. held, that such an interlocutor appearing to affect the interests of each individual member of the corporation, any one member wasi by law entitled to appeal against it. Where A. presents a petition of appeal, and B. presents a counter petition, praying that the former may be dismissed as incompetent, B. is entitled to begin on the argument as to the competency of the appeal. The question intended to be raised by this appeal was, whether an individual member of a corporation all the members of which were constituted trustees under a deed for charitable purposes, could competently present to the House of Lords an appeal against [357] a judgment of the Court of Session, sanctioning acts of those trustees, which acts that member deemed to involve a mal-administration of the trust. The Rev. Dr. Andrew Bell, of Egmore, prebendary of the collegiate church of St. Peter, Westminster, by a deed of indenture, dated 14th July 1831, and executed between him on the one part, and William Haig, Esq. provost of the burgh of St. Andrew's, and others, as trustees, on the other part, invested in those trustees certain large sums of money for the purpose of the more effectual diffusion of the Madras system of education, of which Dr. Bell claimed to be the author. The indenture directed the trustees, among other things, to retain the sum of £2500, " for the payment of such costs and expenses as are hereinafter defined; and subject thereto to divide the said stocks into twelve equal parts, and to transfer one such twelfth part unto the provost, magistrates, and town-council of Edinburgh; one other such twelfth part unto the provost, magistrates, and town-council of Glasgow; " and in like manner unto the town-councils of certain other burghs. The provost, magistrates, and town-council of Glasgow accepted this trust. The superintendence of the parochial schools of Scotland is placed by law under the charge of the church; and the magistrates and town-council of Glasgow conceived, that while it was their duty, as trustees of Dr. Bell, to retain the inspection and control of the schools to be established under his bounty, they should greatly promote the 439 V CLARK & FINNELLY. GRAY V. FORBES [1838] purpose he had in view, if they could prevail upon the ministers and kirk-sessions, within their several parishes, to take the active superintendence of the several schools to be established under this trust. Accordingly, upon [358] the motion of the Lord Provost, a committee of the town-council was appointed to hold a conference with the ministers of Glasgow upon this subject; and after several meetings, it was ultimately agreed, that upon the ministers and kirk-sessions establishing schools upon the Madras system in their respective parishes, they should each receive an equal share, half yearly, of the dividends or interest accruing from the sum placed by Dr. Bell at the disposal of the town-council for this purpose. This proposition was agreed to by the several ministers and kirk-sessions. But it was expressly stipulated, that the kirk-sessions, before any payment should be made to them, should exhibit annually to the town-council a vidimus or statement of the application of the sums-proposed to be paid, showing, to the satisfaction of the council, that the same were to be applied to the promotion of Dr. Bell's, or the Madras system of education; and, further, that it should be imperative upon the kirk-sessions to intimate to the corporation the annual public examinations of the schools within the several parishes, so that two members of the corporation, at least, might have an opportunity of attending and satisfying the other members that Dr. Bell's mode of education was regularly and systematically carried on. It was further stipulated, that each of the schools should be denominated by the name of the parish. The magistrates and council then entered into formal contracts or agreements with each of the kirk-sessions, by which, while the kirk-sessions on the one hand became bound to establish, in their respective parishes, schools on the Madras system, under the stipulations already mentioned, the magistrates and council, on the other hand, engaged to pay over, so long as these stipulations were observed, the dividends or interest arising from the sums placed in their [359] hands by Dr. Bell. One of these contracts was entered into by the Respondents, who constituted the kirk-session of the Outer High Church and Parish, and who received for their school the name of " The Outer High Church Parish School on Dr. Bell's, or the Madras System." These contracts having been communicated to, and taken into consideration by, Dr. Bell's original trustees, Provost Haig, Principal Haldane, and professors Buist and Alsx-ander, at a meeting held by them on the 12th March 1835, they unanimously declared their opinion, that they " were in perfect accordance with the spirit and intention of Dr. Bell's deed of indenture, and of the deed of declaration of trust executed by the magistrates of Glasgow in reference to it; and the trustees farther gave it as their opinion, that the arrangement entered into between the said parties provided for and secured a most judicious application of the money." After the Scotch Burgh Reform Act passed, the Appellant was elected a town-councillor, and thus became a trustee. The arrangement entered into by the old corporation became a subject of discussion in the town-council, and the members finally caine to the opinion, that they ought not to recognize or carry into execution the transaction entered into between their predecessors! and the Respondents, because they deemed it to be subversive of the objects and purposes of the trust, and consequently to involve serious acts of mal-administration on the part of their pre*-decessors. A different opinion having been formed by the Respondents, they resolved to' compel the trustees to fulfil the contract, and for that purpose brought an action of declarator against them before the Court of Session. In the summons, in that action, the Respondents, after having set forth what they represent as the tenor of [360] the transaction, contract, and consequent liabilities, and alleged violation by the trustees, conclude: " And although the pursuers have frequently desired and required the said Lord Provost, magistrates, and town-council of the city of Glasgow, to fulfil their part of the said contract, by making payment to the pursuers of their said shares of the said dividends, in terms of the said contract; yet they refuse or delay so to do: therefore the said Lord Provost, magistrates, and council of the city o f Glasgow, and the Hon. William Mills, Lord Provost, William Gilinour, James Lumsden, John Fleming, William Craig, and John Small, Esqrs., baillies, James Martin, Esq., dean of guild, Arch. M'Lellan, Esq., deacon convener, and Messrs. Hugh Tennent, Robert M'Gavin, James Turner, John Boyle Gray, Alexander Dennistoun, William Bankier, John Ure, Alexander Johnstone, James Wallace, Henry Brock, Robert Hutcheson, John Mitchell, John Douglas, James Hutcheson, Robert. Dalgleish, 440 GRAY V. FORBES [1838] V CLARK & FINNELLY, Henry Paul...
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John Boyle Gray, Appellant. - Knight Bruce-Hill; The Rev. John Forbes and Others (Outer Kirk Session of the High Church of Glasgow), Respondents. - Tinney-John Stuart
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