John Dunmore Lang-Appellant; William Purves and Others, - Respondents
| Jurisdiction | UK Non-devolved |
| Judgment Date | 25 February 1862 |
| Date | 25 February 1862 |
| Court | Privy Council |
English Reports Citation: 15 E.R. 541
ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.
In addition to authorities cited in note 2, p. 426, see Natal (In re Bishop of), 1864, 3 Moo. P.C. (N.S.) 115; Natal (Bishop of) v. Gladstone, 1866, L.R. 3 Eq. 1; Cape Town (Bishop of) v. Natal (Bishop of), 1869, 6 Moo. P.C. (N.S.) 203; Merriman v. Williams, 1882, 7 A.C. 484.
[389] ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES. JOHN DUNMORE LA.XG-Appellant; WILLIAM PURVES and Others,- Respondents* [Feb. 17, 18, 24, 25, 1862]. A Church, in connection with the Church of Scotland, under the denomination, of " The Scots Church," was formed in New South Wales, and its constitution denned by certain Articles. In the year 1826 a grant of land at Sydney was made by the Colonial Government, under the seal of the Colony, to the Appellant, an ordained Minister of the Church of Scotland, and others, for the erection of a Church. The Appellant was appointed Minister of the Church. In 1842 an Ecclesiastical body, called the " Synod of Australia," in connection with the Church of Scotland, of which the Appellant was a member (formed of certain Presbyterian congregations in Australia, and recognized by the New South Wales Act, 4th Viet. No. 18), in consequence of certain charges brought against the Appellant, dismissed him from his office of Minister and declared his Church vacant. The Appellant refused to recog- * Present: The Right Hon. Lord Kiiigsdown, the Master of the Rolls (the Right Hon. Sir John Rom illy), and the Right Hon. Sir John Taylor Coleridge. 541 XV MOORE, 390 LANG V. PUKVES [1862] nize the jurisdiction and authority of the Synod, and with the concurrence of the other Trustees of the Church, continued to officiate as Minister. In 1855, the Members of the Synod filed a Bill in the Supreme Court at New South Wales, praying that the Appellant and the other Trustees might be removed from the trust connected with the grant of land and the Church erected there, and that the Appellant might be restrained from exercising the duties of Minister of that Church, and be decreed to deliver up possession on the ground that he had been deposed therefrom by the Synod of Australia. Upon appeal, held (reversing the Order of the Supreme Court), and dismissing the Bill, that the suit was improperly framed, by reason- First, that the members of the Synod of Australia were strangers to the trust, and had no interest to maintain such a suit [15 Moo. P.C. 423]. Second, that such a suit could only be brought (1), by some person or persons on behalf of a body having an interest in the subject matter; or (2), by some Public officer intrusted by law with authority to institute a suit, and that the Synod had no locus standi, either in respect of interest or of public authority [15 Moo. P.C. 4231; and Third, that as the sentence of the Synod deposing the Appellant having been propounded in 1842, and the suit in question not brought till 1855, and no satisfactory explanation given for the delay, the Synod were by their acquiescence precluded by lapse of time from sustaining such suit [15 Moo. P.C. 426]. As to the authority of a Colonial Synod to pronounce a sentence of deprivation and the extent to which their proceedings would be considered binding as an Ecclesiastical Court of competent jurisdiction in a suit brought in a Civil Court, Quaere. The Bill in this suit was filed in February, 1855, by the Respondents, who were therein described as composing the " Synod of Australia," and as suing for and on behalf of the Synod, and also for and on [390] behalf of the members of the congregation of the Scots Church in Jamison Street, Sydney. The Bill stated, among other things, the formation in Sydney of a Church in connection with the Church of Scotland under the denomination of the Scots Church, that the constitution of the Church was defined by Articles, and that a grant under the seal of the Colony, dated the 10th of November, 1826, was made of certain lands and premises in the City of Sydney to the Appellant, and to John Piper and Thomas McVitie, both since deceased, and to David Ramsay, another Defendant (but also since deceased), as Trustees for the congregation of Scotch Presbyterians in Sydney, for the purpose of erecting a Churcli in which the ordinances of religion should be dispensed by a regularly ordained Minister of the Church of Scotland, and such other buildings therewith connected as the Trustees might think fit to erect. The Bill also stated, that the Appellant, being an ordained Minister of the Church of Scotland, was in terms of the constitution made in the year 1824 appointed, and that he continued from that time downwards to be Pastor of the Church, and also stated the formation of a Synod called the " Synod of Australia," of which the Appellant had become a member, and had signed a bond of union, which was also signed by the other Ministers and Elders composing the Synod, by [391] which bond they, inter alia, '' promise that in the exercise of discipline we shall follow the laws of that Church " (the Established Churcli of Scotland) " so far as applicable to this Colony, and that whatever may be our individual opinions, will, so long as we are members of the Court, submit ourselves to the judgment and determinations of the majority of outnumber regularly met and sitting in Presbytery and Synod." The Bill further stated certain proceedings, which it was alleged had been adopted against the Appellant before the Presbytery of Sydney and the Synod of Australia, and that at a meeting of the Synod, held on the 8th of October, 1842, the Appellant was indicted and accused before the Synod, at the instance of the Moderator and other members of the Presbytery of Sydney, of certain alleged offences, unbecoming his character and profession of such Minister, and punishable by the law and rules of the Church of Scotland, of slander, schism, and contumacy, and that such indictment and accusation having been duly heard and tried by the Synod, they, the Synod, did, on 542 LANG V. PURVES [1862] XV MOORE, 392 the llth of October, 1842, by their vote depose the Appellant from the Holy Ministry, prohibiting and discharging him to exercise the same or any part thereof in all time coming, under the pain of the highest censures of the Church of Scotland, and declared the Scots Church, Jamison Street, vacant from and after the day and date of such sentence. That these proceedings of the Synod were communicated and reported to the Presbytery of Irvine in the year 1843, and that the Presbytery afterwards, on or about the 9th of September, 1851, at a duly convened meeting thereof, declared that they were fully satisfied of the truth of the facts charged, as charged [392] as aforesaid against the Appellant, and that he had withdrawn himself from all connection with the Church of Scotland, and that they found and declared that he was no longer a Minister of that Church, was incapable of receiving any presentation to a parochial charge within the same, and was no longer qualified to officiate in the Scots Church, Sydney, until he should be reponed in due form. That immediately upon such alleged sentence of deposition being pronounced by the Synod, the Appellant forfeited and lost his character of a regularly ordained Minister of the Church of Scotland, and all the rights, functions, and privileges of such Minister, and became absolutely disqualified to officiate as such in any manner, and that it thereupon became and was his duty to abstain from exercising or attempting to exercise the office of such Minister, and to give up possession of the Church and all buildings held or occupied by him in virtue of his late office of Minister to the Synod of Australia, but that instead of so doing the Appellant, in defiance of the above-mentioned sentence of deposition, and in contempt and violation of the authority and jurisdiction of the Synod, and of the laws and constitution of the established Church of Scotland, continued to act and officiate as the Minister of the Church, and to retain possession of the Church, and the buildings connected therewith, and to preach therein, as if he was the right and lawful Minister thereof. And that the rest of the Trustees, instead of co-operating with the Synod as they ought to have done, for the purpose of obtaining possession of the Church, and preventing the continued usurpation by the Appellant, had always refused to join with the Plaintiffs in taking any proceedings against the [393] Appellant for the purpose of enforcing and carrying into effect the sentence of deposition, and of obtaining possession of the Church and the other buildings connected therewith; and the Bill prayed, first, that the Defendants, the Trustees, might be removed from the trusteeship, and ordered to convey the piece of land mentioned in the grant to such new Trustees as might be appointed in their place, and be restrained from interfering with the Scots Church in Jamison Street, and that fit and proper persons miiit be appointed Trustees in their room and place; secondly, that the Appellant milit be decreed and declared to be no longer the Minister of the Church, and restrained from using the Church, and exercising or pretending to exercise any of the powers or duties of such Minister; third, that the Appellant might be ordered and decreed to give up possession of the Church and of all buildings connected therewith then in his possession or occupation to the Plaintiffs, for and on behalf of the congregation ; fourth, that for the purpose of carrying out the purposes aforesaid it mio-ht, if necessary, be referred to the Master of the Court to make such inquiries as it might deem requisite or proper; and that Her Majesty's Attorney-General for the Colonv might be bound by the proceedings in the suit, and for general relief. The Appellant, the substantial Defendant, put in an...
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