Mulcahy v Herbert
| Jurisdiction | Scotland |
| Judgment Date | 12 July 1898 |
| Docket Number | No. 181. |
| Date | 12 July 1898 |
| Court | Court of Session |
Lord Kincairney, Lord Justice-Clerk, Lord Young, Lord Trayner, Lord Moncreiff.
Contract—Voluntary Association—Church—Community of Nuns.—
A women who had been consecrated a member of a community of nuns in the
Roman Catholic Church brought an action against the Mother Superior of the community, as representing the community, and against the Bishop of the Roman Catholic Diocese, concluding for damages on the ground that she had been dismissed from the community by the defenders in breach of the contract under which she entered it. She averred that, in becoming a member of the community, she entered into a contract with the defenders by which, on the one hand, she contracted to become a member of the community, and to perform the whole obligations incumbent on its members, namely, to devote herself for life exclusively to the service of the poor, sick, and ignorant, according to the rule and constitution of the community; and on the other hand, the community became bound to provide her with a home, and with all necessary clothing and aliment during her lifetime; that the defenders committed a breach of this contract by dismissing her from the community without sufficient reason; and that she was entitled to damages from them accordingly.
The Court dismissed the action as irrelevant.
On 20th October 1897, Mary Mulcahy, ‘otherwise Sister Mary de Sales,’ residing near Elgin, brought an action against Eliza Herbert, ‘otherwise Mother Mary Benedict,’ Mother Superior of Saint Marie's Convent of Mercy, at Elgin, and residing at said convent, as an individual, and as representing the congregation or community of Sisters of Mercy at Elgin, Keith, Tomintoul, and Dornie; and against the Reverend Hugh Macdonald, Bishop of the Roman Catholic Diocese of Aberdeen, residing at No. 20 Queen's Road, Aberdeen, as an individual, and as Bishop, concluding for payment of £500.
The pursuer averred, inter alia;—(Cond. 2) ‘The pursuer entered St Marie's Convent at Elgin on 9th March 1889. She was then twenty-two years of age. She was examined and received by the then Mother Superior, Mother Margaret Garden, otherwise known as Mother Mary Bernard. The pursuer's means consisted of about £100, and, on or about said date, she handed over the whole of her said means to the Mother Superior.… After being a postulant for two years and nine months, she entered on her novitiate, and spent two years and nine months or thereby as a novice. It is believed and averred that the said convent at Elgin, and other three convents situated respectively at Keith, Tomintoul, and Dornie, in Ross-shire, form one community of nuns, and are under the rule and control of the same Mother Superior, who is the official head and representative of the said community, and to whom the other members of said community are subject. She resides at Elgin, and is represented by Assistant Mother Superiors at the other convents. The whole of said convents are also within the Roman Catholic Diocese of Aberdeen, and under the jurisdiction and control of the defender, the Reverend Hugh Macdonald.’
(Cond. 4) ‘The pursuer became a member of the said community of Sisters of Mercy at Tomintoul on 9th December 1891.… The pursuer was then solemnly consecrated, and took the vows of religion in presence of the then Mother Superior of the community, Mother Mary Bernard, the assistant or local Superior Mother Mary Benedict (now Mother Superior, and here called as a defender), and Reverend John Paul, priest at Tomintoul, as representing the defender, the Reverend Hugh Macdonald. By said act of profession the pursuer solemnly vowed and promised poverty, chastity, and obedience, and the service of the poor, sick, and ignorant, and to continue or persevere until death in said community or congregation of nuns, known as the congregation of our Lady of Mercy, according to its approved rule and constitutions, under the authority of the Right Reverend Hugh Macdonald, Bishop of said Diocese, and of the said Mother Superior, Mary Bernard, and of said assistant or local Mother Superior, the defender. Part of the ceremony consisted of an address from the said John Paul, as representing...
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