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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> General Assembly of the Free Church of Scotland v. Lord Overtoun. (Ante, August 1, 1904, vol. 41, p. 742.) [1904] ScotLR 42_6 (22 October 1904) URL: http://www.bailii.org/scot/cases/ScotCS/1904/42SLR0006.html Cite as: [1904] ScotLR 42_6, [1904] SLR 42_6 |
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Page: 6↓
( Ante, August 1, 1904, vol. 41, p. 742.)
Facts:
A petition was presented to the Court to apply the judgment of the House of Lords and to declare in terms of the direction to the Court in that judgment to make certain specific declarations.
When the case was put out in the Single Bills, the unsuccessful parties appeared and moved the Court to send the petition to the Summar Roll for discussion as to whether the Court had any discretion to delay applying the judgment of the House of Lords, and, if so, whether such discretion should be exercised in the exceptional circumstances of the case.
The Court refused to send the petition to the Summar Roll, and granted the prayer of the petition de piano, on the ground that the duty imposed on them by the remit from the House of Lords was not judicial but purely ministerial— diss Lord Young, who was of opinion that the case should be sent to the Summar Roll for full discussion.
On 1st August 1904 the House of Lords pronounced judgment in the case of the General Assembly of the Free Church of Scotland and others (pursuers and appellants) v Lord Overtoun and others (defenders and respondents), reversing the decision of the Court of Session and remitting the cause to the Court of Session in Scotland with a direction “to declare (1) that the association or body of Christians calling themselves the United Free Church of Scotland has no right, title, or interest in any part of the whole lands, properties, sums of money, and others which stood vested as at the 30th day of October 1900 in the Right Hon. John Campbell Baron Overtoun and others, as general trustees of the Free Church of Scotland; and (2) that the said appellants (pursuers) and those adhering to and lawfully associated with them conform to the constitution of the Free Church of Scotland, are and lawfully represent the said Free Church of Scotland, and are entitled to have the whole of said lands, property, and funds applied according to the terms of the trusts upon which they are respectively held for behoof of themselves and those so adhering to and associated with them and their successors as constituting the true and lawful Free Church of Scotland, and that the defenders, the said Right Hon. John Campbell Baron Overtoun and others, as general trustees foresaid, or the defenders second enumerated, or those of the defenders in whose hands or under whose control the said lands, property, and funds may be for the time being, are bound to hold and apply the same (subject always to the trust after mentioned) for behoof of the pursuers and those adhering to and associated with them as aforesaid, and subject to the lawful orders of the General Assembly of the said Free Church of Scotland, or its duly appointed Commission for the time being, and in particular that they are bound to denude themselves of the whole of said lands, property, and funds in favour of such parties as may be nominated as general trustees by a General Assembly of the Free Church of Scotland or its duly appointed Commission for the time being, but subject always to the trusts upon which the said lands, property, and funds were respectively held by the said defenders for behoof of the Free Church of Scotland as at 30th October 1900, and to do therein as shall be just and consistent
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with this judgment and direction.” … These two declarations were in terms of the third and sixth conclusions of the summons. On 5th October the Commission of the General Assembly of the Free Church of Scotland appointed certain gentlemen as general trustees to hold for behoof of the Free Church, inter alia, the various properties, sums of money, and others falling under the judgment of the House of Lords.
On 15th October 1904 the successful parties, the General Assembly of the Free Church of Scotland and others, presented a petition to the Court of Session craving their Lordships to apply the judgment and declare as directed. The prayer of the petition craving for declarator proceeded exactly in the terms of the House of Lords judgment set forth above, except that it contained the names of the persons elected as general trustees at the meeting of 5th October.
On October 18th counsel for the petitioners appeared in the Single Bills and moved the Court to grant the prayer of the petition.
Counsel for Lord Overtoun and others, the unsuccessful parties in the House of Lords, opposed the motion, asking for delay and for leave to lodge a minute and documents. Their motion was that the petition be sent to the Summar Roll for discussion. They argued—It was within the discretionary powers of the Court of Session to delay ob-tempering the directions of the House of Lords in exceptional cases. The present was such a case. They were prepared to show that the judgment of the House of Lords could not in fact be implemented, the general trustees, in whose favour they were directed to denude, being incapable upon their own confession of administering the funds. This fact was res noviter veniens ad notitiam since the judgment. In any case, therefore, in applying the judgment, the Court must qualify it by reserving to the objectors their right to refuse to hand over the funds when demanded. Further, a Bill was about to be submitted to Parliament with the object of altering the state of matters which would result from carrying into effect in its entirety the judgment of the House of Lords. The petition should be sent to the Summar Roll for full discussion of all the questions raised.
Argued for the petitioners—The Court should grant the prayer of the petition de piano. In applying the judgment of the House of Lords its duty was purely ministerial, and it had no discretion but was bound to carry out literally the directions given— Stewart v. Agnew, March 12, 1823, 1 Shaw's Appeals 413. There was nothing exceptional in the present case.
At advising—
The only grounds hinted at for delay are (1) that the unsuccessful party intends to apply to Parliament to deal with the matter which was in dispute by legislation, and (2) that the petitioners have admitted their inability to administer the trust which, as a consequence of the House of Lords judgment, will be committed to them—an allegation which is denied. I am unable to see how this Court could be justified in declining to perform the duty laid upon it on any such grounds, and I would therefore move your Lordships to grant the prayer of the petition and to apply the judgment.
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The House of Lords has remitted this case with explicit and unambiguous directions to do so.
It is not open to us to question the judgment of the House of Lords nor the binding authority of the remit, and it is equally beyond our power, were we so disposed, to delay giving effect to the remit from any considerations of consequences which may follow upon decree of declarator being pronounced—consequences which it must be presumed the noble and learned Lords foresaw when they pronounced judgment.
In these circumstances, there being no dispute as to the form or meaning of the remit, discussion is, and in my opinion was, from the first, incompetent.
Mr Guthrie, however, was allowed to state his objections at considerable length, but he did not state a relevant or practicable reason for granting delay, and did not cite a single authority for departing from our well-established constitutional duty to give implicit obedience to the orders of the Court of last resort without question or delay. If authority were required for the course we propose to adopt, I may refer to the opinion of Lord Redesdale in the case of Stewart v. Agnew, March 12, 1823, 1 Shaw's Appeals 413, at p. 426; and that of Lord Justice-Clerk Inglis in Stuart v. Moore, May 25, 1861, 23 D. 902, at p. 913.
The Court refused to send the petition to the Summar Roll, and granted the prayer de piano.
Counsel for the Petitioners— Henry Johnston, K.C.— Salvesen, K.C.— J. R. Christie. Agents— Simpson & Marwick, W.S.
Counsel for the Respondents— Guthrie, K.C.— Shaw, K.C.— Orr. Agents— Cowan & Dalmahoy, W.S.