Skerret v Oliver
| Jurisdiction | Scotland |
| Judgment Date | 30 January 1896 |
| Date | 30 January 1896 |
| Docket Number | No. 88. |
| Court | Court of Session (Inner House - First Division) |
Lord Kincairney, Lord President, Lord M'Laren, Lord Adam, Lord Kinnear.
Church—Voluntary Church—Suspension of Minister—Reduction—Restoration to status.—
Church—Voluntary Church—Contract—Suspension of Minister—Reduction—Specific implement—Restoration to office.—
Process—Church—Voluntary Church—Action to reduce decree of suspension—Who must be called as defenders—Citation of Synod and Presbytery.—
A minister of the United Presbyterian Church was served with a libel for an alleged offence, and was suspended from the ministry till the decision of the case. After a proof, the Presbytery found the charge proved. The minister appealed to the Synod, who remitted the case to a commission. The commission found certain counts in the libel proved, and suspended the minister sine die.
The minister brought an action (1) for declarator that he had been libelled and suspended contrary to the rules of the Church; (2) ‘in case it may be necessary,’ for reduction of the decree of suspension pronounced by the commission; and (3) for interdict against the defenders proceeding to fill his charge, or deprive him of the status or emoluments of his office. He reserved his right to claim damages.
The pursuer having intimated that he did not insist in the conclusions for declarator and interdict, but only in that for reduction of the sentence of the commission, the Court dismissed the conclusion for reduction, on the grounds (1) that that conclusion was merely ancillary to the conclusions for declarator and interdict; and (2) that reduction of the sentence by the commission would leave the pursuer under the original suspension, and would not restore his status as a minister, or lead to the establishment of any patrimonial right.
In an action by a minister of a congregation of the United Presbyterian Church against the Synod concluding (1) for reduction of a sentence of suspension pronounced against him by a committee of the Synod to whom the Synod had remitted the trial of a libel against him, on the allegation that it was ultra vires of the Synod to make the remit, and (2) for interdict against the defenders filling up his charge, held by Lord Kincairney (1) that the pursuer had relevantly averred a breach of contract, causing an injury which was of a patrimonial character, or of a character equivalent to patrimonial; (2) that the suspension by the committee being alleged to be ultra vires, appeal to the Court was not excluded by a provision in the contract that members should not have recourse to the civil Courts against judgments of the Courts of the Church; but (3) that reduction of the sentence of suspension, to the effect of restoring the pursuer to office, was not a remedy which the Court ought to grant, or was in use to grant, in similar cases, and that the action fell to be dismissed.
In an action by a minister of the United Presbyterian Church, for reduction of a decree suspending him from his office, and for restoration to his office, with its emoluments, held by Lord Kincairney (Ordinary), and acquiesced in, (1) that it was sufficient to call as defenders the prosecuting members of the Presbytery, the Synod, and a commission of the Synod by whom the sentence complained of had been pronounced; (2) that the Synod was validly cited by its office-bearers being called; and (3) that the Presbytery was not a proper defender, but was validly cited for its interest, by its office-bearers being called.
This was an action at the instance of the Rev. Josephus Leishman Skerret, who designed himself ‘minister of the United Presbyterian Church, Cathedral Square, Glasgow,’ against (1) the Rev. Alexander Oliver and others, the moderator, clerks, agents, and treasurer of the Synod of that Voluntary Association of Christians calling themselves the United Presbyterian Church, as representing the said Synod or Association, and as individuals; (2) the Rev. David Kinnear and others (members of the commission of the Synod after mentioned) as representing said Synod, and as individuals; (3) the Rev. J. M. Cruickshank and others, the moderator, clerk, treasurer, and clerical members of the United Presbyterian Church Presbytery of Glasgow as representing said Presbytery, and as individuals; and (4) the Rev. David Woodside and others, the kirk-session, board of management, and trustees vested in the heritable property of the Cathedral Square United Presbyterian Church, Glasgow, for their interest.
The pursuer concluded (1) for declarator that the defenders were not entitled, by virtue of the provisions of the constitution, contract of association, rules, and laws of the United Presbyterian Church, to suspend the pursuer from his office of minister of the United Presbyterian Church, Cathedral Square, Glasgow, or from the status or emoluments of the said office, by reason of them, or any of them, alleging or finding it proved that on occasions specified he had met and walked with Miss A B; (2) that the libelling of the pursuer for alleged walking with Miss A B, with the view of suspending him from, or depriving him of his said office, or the status or emoluments of the same, was contrary to the said constitution, contract of association, rules, and laws; (3) and ‘in case it may be necessary,’ for decree of reduction of a pretended judgment or suspension, dated 24th May 1894, suspending the pursuer from his office as minister of the said Church sine die, dissolving his connection with the congregation of Cathedral Square, and declaring the charge vacant, passed by the defenders the Rev. David Kinnear and others, and restoration of the pursuer thereagainst; and (4) for interdict against the defenders proceeding to fill the place of the pursuer in his office of minister foresaid, or to deprive him of the status and emoluments of the said office or of his status of a minister of the Gospel.
The pursuer averred, inter alia;—(Cond. 2) ‘The rights of the members of the said association (the United Presbyterian Church) inter se are regulated by (1) a constitution or contract of association called ‘The Basis of Union,’ and (2) rules or laws.* The said rules and
laws are revised and added to from time to time, and become as from the date of their last revisal part of the constitution of the said association, superseding all previous rules or practice. The rules or laws No. 9 of process became part of the said constitution by resolution of Synod in May 1893, and superseded all the previous rules and practice of the association.’ (Cond. 4) The pursuer accepted a call from the congregation of the United Presbyterian Church, Cathedral Square, Glasgow, and was inducted by the Presbytery of Glasgow to the pastorate of that congregation. (Cond. 5) ‘By the said call, and the pursuer's acceptance thereof, and induction following thereon, a contract was entered into between the pursuer on the one hand and the said association on the other, whereby the pursuer became bound to perform the functions of the ministry to which he had been ordained on the terms and subject to the provisions of the said contract of association, rules, or laws, and the said association became bound to confer upon the pursuer the status of a minister of their association, and through and by the said congregation, who were also parties to the said contract, to supply him with suitable maintenance, and to maintain him in the enjoyment of the said status and the emoluments thereof.’ (Cond. 6) ‘In particular, it was a part of the said contract that the association should have power to deprive the pursuer of the said ministry and maintenance only if any of the sins and offences specified in the said contract, rules, or laws should be found proven under a libel against him. It was also part of the said contract that, in the event of the pursuer being libelled for any such sin or offence, he should have an appeal from the judgment of the Presbytery, before whom alone the libel could be tried, to the Synod of said association; that such appeal should be heard and disposed of by such Synod after the pursuer had been heard in his defence, and that he should have a judgment by the majority of the members of the association sitting in Synod before any sentence should be pronounced against him depriving him of his status and maintenance as aforesaid.’ (Cond. 7) The pursuer was, in breach of the said contract of association, served with a document which the prosecutors alleged to be a libel, which was in the terms quoted below.*
(Conds. 8 and 9) The alleged libel affirmed no offence, and the pursuer objected to it as irrelevant, but the Presbytery remitted it to probation, and after a proof found the pursuer guilty of walking with the said member of his congregation on the occasions specified, (Cond. 10) ‘The pursuer protested and appealed to the Synod against the finding of the Presbytery in order that the Synod might exercise the rights of final judgment conferred upon them. On the 10th day of May 1894 the Synod took up the appeal, but instead of adjudicating upon it, as they were bound to do, they illegally and unwarrantably delegated the powers committed to them to an alleged commission, composed of forty-five of their own number, with power to them to consider and finally dispose of the said appeal. The said delegation was in breach of the said contract, and was ultra vires of said Synod. The said commission did not constitute any Court or authorised tribunal of the Church, and had no power, jurisdiction, or authority to deal with the case, or to pronounce any sentence thereon. …’ (Cond. 11) ‘The said alleged commission, on the 24th day of May 1894, took up the functions incompetently delegated to them as aforesaid, and … found the first count of said libel not proven, and the second and third counts proven, and suspended the pursuer from performing the duties of his said office, and removed him from his said charge, at the same time...
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