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Cite as: [1834] CA 13_128

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SCOTTISH_Shaw_Court_of_Session

Page: 128↓

Murray

v.

Donaldson
No. 47.

Court of Session

2d Division

Dec. 5 1834

Lord Jeffrey, Lord Justice-Clerk, Lord Glenlee, Lord Meadowbank, Lord Medwyn.

William Murray,     Pursuer.— Sol.-Gen. Skene— Dick. Rev. James Donaldson and Others,     Defenders.— D. F. Hope— Whigham.

Subject_Jurisdiction—Schoolmaster—Proof.—

A district parochial schoolmaster, who had never subscribed the Confession of Faith or formula of the Established Church, was cited before the presbytery of the bounds, on a petition by the minister of the parish, and required to subscribe, but having refused, and having also refused to sign the minutes of the presbytery, which set forth the res gesta, and the presbytery having thereupon de plano deposed him, and afterwards had him ejected under a warrant from the Sheriff—held, 1. That, although not falling under the special provisions of the act 43 Geo. III., the presbytery were entitled, under their powers by prior statutes, to take cognizance of this matter, and depose the schoolmaster, in respect of his refusal to subscribe. 2. That no libel was required, and that the minutes, though not signed by the schoolmaster, were sufficient proof of his refusal. And, 3. That it was competent at common law to apply to the Sheriff for ejection of a schoolmaster deposed, though not under the act 1803, and that reference to that act in the application, as the ground of it, did not vitiate it. 4. Observed that, in regard to sentences not under the act, review by the Superior Ecclesiastical Courts was not excluded.

In the parish of Canobie, besides the principal parochial school, provided with a dwelling-house and garden, there are four auxiliary or district schools, the school-houses of which were erected and are kept in repair by the sole heritor, the Duke of Buccleuch and his tenants, and the salary of which is paid out of the maximum allowance raised under the act 43 Geo. III. c. 54. The pursuer Murray was, in 1811, appointed schoolmaster of one of these auxiliary schools stationed at Tail; and on that occasion, as the minutes of presbytery bear, he, alongst with another master appointed to another of the schools, compeared before the presbytery, “and produced extract of their election”—“craving to be examined as to their qualifications.” They were accordingly examined by a committee of presbytery, who having reported “that they had good reason to be satisfied with their qualifications,” the presbytery pronounced this deliverance:—“Whereupon the presbytery having considered the above report, did, and hereby do, confirm their election, and appoint their clerk to give extracts of the same when required.” Murray accordingly entered on his office, but he was not required to take the oaths to government, nor to sign the Confession of Faith and formula of the Church of Scotland, as required by the acts 1690, c. 17, and 1706, c. 6. In March, 1833, however, the defender, the Rev. Mr Donaldson, minister of the parish, presented a petition to the presbytery of Langholm, within which the school is situated, setting forth, inter alia, as to the pursuer Murray, “that he has not signed the formula, nor taken the oaths to government, nor is he, as required by law, a member of the Established Church of Scotland,” and praying the presbytery “to take the said case into their consideration, and to take such steps as in their wisdom may seem fit.” This petition was ordered to be served on Murray, with a citation to compear before the presbytery, which was accordingly done; and Murray appeared before them on the day appointed. Thereupon the following proceedings took place, as recited in the minutes of presbytery:—“After the minutes of last sederunt had been read, the clerk reported, that, according to the appointment of the presbytery, he had issued warrant of citation to John Dalgleish, presbytery officer, to be served on William Murray, teacher of the auxiliary school at Tail, in the parish of Canobie, to attend the present meeting, and that the officer had returned an execution, of date the 6th instant, bearing that he had delivered to the said William Murray, personally, a full double of an order by the said presbytery, on the complaint and petition of the Reverend James Donaldson, minister of said parish, ordaining him to appear here to-day, to answer to the said complaint, conform to execution produced, and the said William Murray having been called in, and having compeared, and heard the complaint against him read over, declares that he did appear before the presbytery of Langholm, and was examined by them twenty-two years ago, but that he was not required to sign the formula, or take the oaths to government, and that he was then, as he still is, a member of the Secession Church. Being farther interrogated, whether he be willing to take the oaths to government? declares, He is ready to do so, but positively refuses to subscribe the formula of the Established Church. The above declaration having been read over to him, he admits that it is correct, but, on being requested to affix his signature to it, refuses to do so. Whereupon the said William Murray was removed, and the presbytery having considered the complaint against him, and his declaration, find that there are good and sufficient grounds, in conformity with the laws and practice of the church, to deprive him of the office of schoolmaster at Tail, and depose him from said situation; and they farther did, and hereby do, declare the situation of schoolmaster at Tail vacant from this date. The said William Murray being again called in, and the above sentence of the said presbytery being read over to him, he protested, and appealed to the Synod of Dumfries, and took instruments in the clerk's hands.”

Murray did not persist in the appeal to the Synod, and, on the 20th June, a petition was presented to the Sheriff of Dumfries-shire by Donaldson, setting forth the deposition by the presbytery, and praying for a warrant of ejection from the school-house, in terms of the 43 Geo. III., which was specially founded on as the ground of the application; and the Sheriff having granted warrant, Murray was ejected accordingly.

Thereafter, he raised the present action against Mr Donaldson and the presbytery of Langholm, concluding to have the sentence of the presbytery and the warrant of the Sheriff reduced and set aside, and to have it declared that he was entitled to resume possession of the schoolhouse and of his rights as schoolmaster. He alleged, that the minutes of the presbytery were incorrect, and gave the following statement in regard to the res gesta:—“In particular, it is not true that the pursuer was a member of the Secession Church, or that he stated himself to be so. He repeatedly declared his willingness, not only to take the oaths to government, but also to sign the Confession of Faith. But something being read to him, partly from a printed book, and partly from a written paper, which the ministers had drawn up, to which compound they gave the name of formula, and required the pursuer to affix his signature, he refused to subscribe it, being of opinion that they had no right to require him to do so, and having had no opportunity to examine it deliberately.”

He did not, however, now offer to subscribe the formula, and he admitted that he was a member of the Relief Church, but he pleaded—

1. The school at Tail is not a proper parochial school, and so, not under the jurisdiction of the presbytery at all.

2. Supposing the pursuer were subject to the jurisdiction of the Presbytery, they have no power to depose a schoolmaster on any grounds other than those set forth in the 21st section of the 43 Geo. III., via. “Neglect of duty, either from engaging in other occupations, or from any other cause, or immoral conduct, or cruel and oppressive treatment of the scholars under his charge.”

3. At all events, the Presbytery were bound to have served him with a regular libel, agreeably to the decision in the case of Ross. 1

4. According to the same judgment, the pursuer's alleged confession not being subscribed by him, afforded no legal grounds for the sentence pronounced thereupon; and,

5. As to the Sheriff's warrant of ejectment, being rested exclusively on the 43 Geo. III., it could only be authorized by a sentence of the

_________________ Footnote _________________

1 Ross v. Findlater, March 2, 1826 (ante, IV. 514).
Presbytery proceeding on that act, which this confessedly was not, and it therefore must necessarily be set aside. To this it was answered—

1. There are no grounds whatever for maintaining that the school of Tail is not an auxiliary parochial school; and the pursuer himself was examined and admitted by the Presbytery as a parochial schoolmaster.

2. The 43 Geo. III. does not in the least impair the antecedent jurisdiction of the Presbytery under prior statutes, but, on the contrary, by section 19, expressly saves it, “except in so far as altered by this present act,” while the provision in section 21 was rather to extend, or at least to remove all doubt as to their jurisdiction; and by the acts 1690, c. 17, and 1706, c. 6, Presbyteries are specially directed to see that schoolmasters subscribe the Confession of Faith, and own and submit to the government of the church of Scotland; and it is declared, that none who do not shall be allowed to continue to exercise their functions. It might be the case that judgments of the Presbytery pronounced not under the 43 Geo. III. would still be reviewable by the church courts as before, but their preexisting jurisdiction is not affected by that act.

3. The not submitting to the government of the church is not a matter falling under the 43 Geo. III., which alone makes any provision as to a libel, nor is it of the nature of an offence requiring such libel; but the submitting thereto is an essential requisite to a schoolmaster continuing to exercise his functions at all, into which the Presbytery may at any time enquire, by calling on him to sign the prescribed formula.

4. In like manner, the statement in the minutes is not the admission by the pursuer of a previously committed offence, but is the recital of a fact, passing in presence of the Presbytery; in respect of which fact, viz. the refusal to subscribe the formula, they were entitled at once to depose him, and the pursuer does not even now offer to subscribe it; and,

5. Although the sentence of the Presbytery, not being founded on the 43 Geo. III., might not warrant the ejectment thereby provided, which is protected from all review by superior courts, yet being lawfully deposed by the Presbytery, it was at common law competent to apply to the Sheriff for warrant of ejection, and the reference to the 43 Geo. III., in a petition competent in itself independently of the statute, will not render it incompetent; while, further, the pursuer being no longer schoolmaster, has no title to seek to be reponed against it.

The Lord Ordinary having assoilzied the defenders, adding the subjoined note, * Murray reclaimed.

_________________ Footnote _________________

* “The Lord Ordinary thinks there are difficulties in this case; and has such an impression of its importance as a precedent, that he was inclined to report it to the Court, upon cases, without a judgment. Both parties, however, are in a situation which made him anxious to avoid any unnecessary expense and delay, and as the facts are fully stated in the record, and the points of law arise chiefly on a reference to a few earlier cases of an analogous nature, he has thought it better to give a decision on the merits, with such explanation of his views as may be necessary.

“The pursuer objected to the jurisdiction of the presbytery generally, on the ground that he was not a proper parochial schoolmaster, but a teacher supported by the voluntary contributions of individuals. The Lord Ordinary, however, had no difficulty in repelling this plea, on the grounds stated on the record; and the pursuer, indeed, appeared to have but little confidence in it, when he agreed to take the Lord Ordinary's judgment on the evidence in process, rather than engage in any further proof of his allegations. On that evidence, the Lord Ordinary had no hesitation in repelling this objection.

“On the merits, the pursuer admitted that there was a sufficient complaint and citation. His objections were chiefly, that the act 1803 had superseded the original powers of the church courts in all things touching the deposition of schoolmasters, and that the proceedings in this case were not conformable to that act, 1st, Because the charge against him was not one of those for which the presbytery was entitled to give a final sentence of deprivation under the statute. 2d, Because he had not been served with a libel; and, 3d, Because his alleged confession was not subscribed by him on the record.

“It is only on the two last grounds that the Lord Ordinary thinks there is any difficulty. He apprehends it to be clear, that no part of the original powers of the church courts over schoolmasters is taken away by the act 1803, except where the exercise of such powers is inconsistent with its special provisions, and its general tendency is undoubtedly rather to increase than to abridge the powers of the presbytery, 1st, By making its judgments final; and, 2dly, By extending its jurisdiction to cases to which its competency had been previously questioned.

“He thinks it equally clear, that its final jurisdiction, even for purposes of deprivation, cannot possibly be limited to the three special cases mentioned in section 21st of the act 1803, viz. neglect of official duty—immorality generally—and cruel or improper treatment of the scholars. Those the Lord Ordinary conceives are specified in the statute, merely because, not being offences (or disqualifications) of a proper ecclesiastical nature, it had been disputed whether they fell at common law under the cognizance of an ecclesiastical tribunal. But it never could be doubted that a regular parish schoolmaster was bound to be in communion with the Established Church, and that the presbytery of the bounds had power to enforce this qualification; while the doctrine of the pursuer seemed to lead to this absurdity, either that such a schoolmaster might continue in office, (since the act 1803,) though he openly celebrated mass in his schoolroom every Sunday, or that the sentence of the presbytery depriving him, on proof of such an offence, was still liable to appeal to the Synod and General Assembly, though this is not the remedy to which the pursuer has thought fit to resort—on these grounds, the Lord Ordinary has no doubt that the judgment of the presbytery is unassailable.

“The case is different as to the want of a libel, and also as to the confession or admission of the party not being authenticated by his subscription on the record. Effect was given apparently to both these objections in the case of Ross, and the attempt of the defenders to distinguish this from Ross's case as to the last particular, on the ground that the record here bears that the pursuer was required to subscribe his declaration, and refused, while no such requisition appears in Ross's case, seems to the Lord Ordinary to detract but little from the weight of the precedent, as such refusal might even be construed into a virtual retractation of the verbal confession previously made.

“But the view upon which he got over both objections is this: He has no doubt (as already stated) that all parish schoolmasters must be in communion with the established church, and are, consequently, at all times liable to have their adherence to that church tested, by having the formula appointed by the act of Assembly 1694, and recognised in the act 1803, as well as many earlier acts, presented to them for signature. Now the record in this case bears, that the pursuer positively refused to sign that formula, and the Lord Ordinary holds, that the sentence of deposition must be considered as proceeding on that refusal. He conceives, too, that this was a valid ground of deposition, and that if it was the ground, there was no occasion either for a libel, or any signature to a supposed confession.

“1. There was no occasion for a libel, for the charge was not of any anterior or extrinsic act, but of noncompliance with a lawful requisition made by the Presbytery in its own presence—the wilful withholding or obstruction, as it were, of an actus legitimus, which it was at all times entitled to require, and which, in its own nature, admitted neither of previous charge or subsequent probation.

“2. In the same way, and for the same reasons, there was no occasion for the party subscribing his declaration. According to the Lord Ordinary's view of the matter, the sentence did not proceed, or at least did not depend for its validity on his admission, that he was a member of the Secession church, but on the fact of his having refused coram judice to exhibit the only test which the law admits of his adherence to the church of the establishment, viz. by signing the formula when required by the Presbytery, to whose superintendence he was undeniably subject, and who, by an act of Assembly, so late as 1800, are not only empowered, but required to exact such signature from all schoolmasters within their bounds.

“In the case of Ross, the fact charged was an antecedent and extraneous fact, relating to the fraudulent exhibition of false certificates of attendance at the university, and might therefore justly be held to form the fit subject of a regular libel; and if established by confession, to make it necessary that the confession should be authenticated on the record by the signature of the party accused. But the refusal to subscribe the formula was an occurrence, or res gesta intra mænia of the presbytery itself, and of which the only legitimate and conclusive evidence was the record, in which the whole proceedings of the meeting were authentically entered. The truth of this record could only be impeached by a reduction improbation, which is not the form of the present action, and the summons, in point of fact, does not allege that in this particular the record was at variance with the truth.

“The Lord Ordinary thinks, therefore, that both these objections are excluded, and that though more precision might have been desirable in the whole course of the procedure, there is truly no ground for holding, either that the presbytery have transgressed the forma required by the statute, or so exceeded the jurisdiction it confers, as to subject their judgment in any respect to a review from which it is otherwise, and for the best reasons, exempted.”

Lord Justice-Clerk.—I do not entertain a doubt as to the correctness of the Lord Ordinary's interlocutor. In regard to the proceedings preliminary to the warrant of ejectment, the minister properly put in a complaint, stating, inter alia, that Murray had not signed the formula. Then he was cited to attend, but on the face of the proceedings, it appears that he refused to sign the formula. There is clear demonstrative proof that he refused to sign it, and he refuses to sign it to this hour. Being thus unqualified to continue in the school, the Presbytery had no alternative but to depose him—the 43 Geo. III. recognising all the powers of Presbyteries, except so far as altered by its provisions. I do not enter into the question of review by the church courts, to which there is no appeal insisted in; and the question comes to he, whether the application to the Sheriff for his ejectment from the schoolhouse, which he was allowed to retain for two months after the sentence, was competent? Now, I am not at all satisfied that the machinery of the statute applies to any deposition not specially under the act. Still, if he was legally deposed, can be maintain himself in possession? It is clear that, at common law, the Presbytery were entitled to apply to the Judge Ordinary of the bounds to eject him. Then, is this competent proceeding vitiated by the reference in the petition to the act 43 Geo. III.? I do not think it is, or that the pursuer can ask redress while he persists in refusing to sign the formula. Therefore, I am for adhering.

Lord Glenlee.—I am entirely of the same opinion. The pursuer is bound by various acts to sign the formula, when called upon to subscribe; and if he will not, he can have no title as a schoolmaster.

Lord Meadowbank.—It is impossible ever to find, in terms of the conclusions of the summons, that the decree of the Presbytery should be reduced, and he restored to, and allowed to retain his rights of schoolmaster—we being satisfied that it is impossible for him to hold it for an hour, if he refuses to sign the formula.

Lord Medwyn.—Whenever I was satisfied that the Presbytery had power to depose the schoolmaster, independent of the statute 1803, I had no difficulty. I do not think this a proceeding under the statute 1803, for § 21 refers only to deposition on three specific grounds, on which alone their sentence would be excluded from review by the church courts, and this is not one of those cases. It is impossible for a person to remain schoolmaster if he refuses to sign the formula, and thus the proceeding is under the original power of the Presbyteries. There is no special form of process laid down for such proceedings; but there was sufficient intimation given him, and he appears, and the record proves his refusal to subscribe the formula. It is clear therefore the Presbytery was entitled de plano to depose him. I think their judgment was open to review by the ecclesiastical courts (Lord Justice-Clerk—Certainly), but there was no appeal followed out, and the warrant of ejectment was applied for. No doubt the application rested on the act 1803, but they might have applied to the Judge Ordinary before that act, and they may do so still at common law; and I do not think the erroneous reference to the statute makes the application itself incompetent, and therefore I hold the warrant well founded, and I am for adhering.

The Court accordingly adhered.

Solicitors: James Peddie, W.S.— D. Whigham, W.S.—Agents.

 SS 13 SS 128 1834

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