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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> The Reverend the Ministers of the City of Edinburgh v. The Lord Provost, Magistrates, and Town Council of the said City [1849] UKHL 6_Bell_509 (27 July 1849) URL: http://www.bailii.org/uk/cases/UKHL/1849/6_Bell_509.html Cite as: [1849] UKHL 6_Bell_509 |
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Page: 509↓
(1849) 6 Bell 509
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND. 1849.
No. 31
[
Heard
Subject_Trust — Corporation — Burgh Royal —
A Parliamentary power given to the Magistrates and Council of a burgh to appoint persons to collect a tax for payment of the stipends of the Ministers of the burgh, and to apply it in payment accordingly, will not make the common good of the burgh liable for default by the Magistrates and Council in the execution of the power.
An Act of the Privy Council of Scotland in regard to the maintenance of the clergy of the burgh of Edinburgh, bearing date the 18th of March, 1634, to which Parliament gave the force of an Act of Parliament, upon a recital that “as there is nothing more consonant to equitie and reason than that all such persons that dailie enjoy in plentie that blessing of the word of God, and heares the same preached, and does participat the benefit of the Clergy, should contribute to the maintenance of the Ministri in these places where they take the foresaid benifit. And Our Soverand Lord and Estates of this present Parliament, understanding that ever since the Reformation, the whole inhabitants of the said burgh of Edinburgh has enjoyed the forsaid benifits and blessings, and the common good of the Town, which has been given to them for maintenance of policie, has been that way employed through the inlaick of other sufficient means for entertaining
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An Act of the Convention Parliament of the 2nd of March, 1649, proceeding upon this recital, “having considered the petition of the Toune of Edinburgh ffor approving and ratefeing the Act of the Committee of Estates for ane yearlie imposition upon the house maills and uthers for the maintenance of the sex Ministers, Togedder with the report of the Committee of Bills thairanent, and being verie sensible of the constant affection of the guid Towne of Edinburgh to religion, and their eminent and exemplarie zeal and desire for provyding and establishing a sufficient number of guid, able, and well qualified ministers for their several kirks: and taking also to their serious consideration the vast charges
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“and because it is not intendit that any prejudice or preparative should be hereupon inferred to the privileges and Liberties of the College of Justice, or that any member thairof should be unequally burdened, Thairfore, for preserving the Lords of Secret Counsell and Sessione, and the haill members of the said College of Justice freed from any prejudice to thaimselves or their privileges, It is ordained that the said Annuity and Imposition shall be laid upon all the inhabitants, tennentis, and possessors of the houses, chambers, buiths, and uthers aforesaid, within the said burgh, after exact survey by four sworne men in every paroche, Who shall survey and value the house maills aforesaid, Quhairof three shall be citizens, To be chosen and sworne be the Toune Counsell, and the fourt shall be nominate, choysin, and sworn be the College of Justice, or such as they shall appoint.”
An Act of Parliament of the 6th of June, 1661, recited, “Forasmeikle as the city of Edinburgh being the cheiff and principall citie of this kingdome, whither vpon occasion of sitting of Parliaments for the most parte, the Secreit Council and Session and other great Judicatories within the same, The Nobility Gentrie and people of the kingdome of all sorts and from all the comers of the cuntrie doe daylie repair and resorte; Not only the inhabitants of the said
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The Acts 7 Geo. Ill, cap. 27, 25 Geo. Ill, cap. 28, and 26 Geo. Ill, cap. 113, which severally extended the royalty of Edinburgh, enacted that “the magistrates and town council” should have power to appoint stentmasters to levy from the possessors of houses within the extended district, “in the same way and manner as the same are now levied within the present royalty.”
The Act 49 Geo. Ill, cap. 21, which further extended the royalty of Edinburgh, repealed the power to appoint stentmasters given by the different statutes which have been mentioned, and contained this further enactment:—
“And to prevent
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all doubt respecting the legality of levying and applying to this and similar purposes the annuity of six pounds per centum on the rents of houses, shops, booths, cellars, and premises, which the said Lord Provost, Magistrates, and Council have been in use to levy within the city, along with the other funds or revenues which are applicable, either in whole or in part, to the payment of minister's stipends, be it enacted and declared, That the said Lord Provost, Magistrates, and Council, and their successors in office, shall be, and they are hereby authorized and empowered not only to levy as they have hitherto been in use to levy, the said annuity of six per centum upon the yearly rents of all inhabited houses, shops, booths, cellars, and premises within the said city and royalty thereof, whether extended by the said recited Acts or by this Act, and to apply the same as they have been hitherto in use to apply it, along with the aforesaid other funds or revenues, as far as those other funds or revenues are so applicable, for the payment of the stipends of all the ministers of the present churches of the said city and royalty; but also to apply an equal proportion of the said annuity in common with the aforesaid other funds or revenues, in so far as these other funds or revenues are so applicable, for the payment of the stipend or stipends of such minister or ministers as may be appointed to the churches which are required to be built under the authority of this Act, in manner before mentioned.”
In October, 1838, Dr. George Baird and the other ministers of Edinburgh raised a summons against the Lord Provost, Magistrates, and Town Council, which, after reciting the enactments of the different statutes above mentioned, set forth that previous to the year 1818, stentmasters were regularly appointed by the Magistrates and Town Council in terms of the statutes, but that in that year a practice was commenced which continued till the year 1836, according to which, in violation of the
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The Respondents, after pleading five dilatory pleas to this action, further pleaded the following defences upon the merits:
“6. But, holding it competent and expedient in this process to enter upon the question, how far the objection that has been taken to the validity of the annuity assessment is or is not well founded, it is maintained that it is not well founded; and that, on the contrary, the nomination of stentmasters complained against, was, in its substance, and with reference to the circumstances under which it took place, legal and valid.
7. At all events, even if it was otherwise, the defenders, acting in optima fide and gratuitously in the matter, and having followed the precise course which a previous practice of nearly twenty years had established, and having no directions or instructions whatever to the contrary from the pursuers, were not liable in damage.
8. Moreover, even if a claim for damage was maintainable at all, it is not maintainable as a claim against the corporation or the corporate estate.
9. More especially, the particular conclusions levelled against the specific fund of 8000 l. cannot be maintained, in respect of the enactments of 1 and 2 Victoria, as well as upon other and more general grounds.
10. Generally, and in the whole matter, the defenders are not resting-owing the debt libelled, or any part thereof.”
After a record had been prepared the cause was advised by the Lord Ordinary upon cases for the parties, when his Lordship “sustained the 7th, 8th, and 10th defences as sufficient to elide the action, and therefore assoilzied the defenders simpliciter.” To this interlocutor his Lordship subjoined the following note:
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“The Lord Ordinary, after repeated and most anxious consideration of the important questions stirred between the parties, has come at last to be satisfied that the action cannot be maintained.
1. He is of opinion that the trust for behoof of the ministers, created by the statute, is not a trust in which the general community or Corporation of the burgh can be considered as the trustee. In this view the analogy afforded by Pearson of Balmadie's case (Diet. 13,098) is important; the taxation here, as there, ‘not being imposed upon the toum's common good, but upon the inhabitants severally, for their money, and the magistrates not being countable to the town for the taxation of money.’
It is very true that the statute appoints, as trustees, the official persons constituting the Magistrates and Council. But from this it does not necessarily follow that these parties represent the community in administering the trust so conferred. If a private party were to mortify certain lands for behoof of the clergy, and vest the administration of this estate in the Magistrates and Council, it is clear that the latter would not represent the community in the discharge of their proper trust functions, and, consequently, that the community would not be answerable for the manner in which they should either execute or fail to execute their office. Does it make any difference that the trust is created, not by a private party, but by an act of the Legislature? In point of principle the Lord Ordinary cannot think it does. The Magistrates and Council represent, and are entitled to bind the community, only in what concerns the administration of the common good, which is the estate of the community. But they do not represent the community in the administration of such a tax as the Annuity Tax,—which forms no part of the common good, and affects no direct interest of the community, in that ordinary relation in which the Magistrates and Council stand towards
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On this ground, without going farther, the Lord Ordinary is prepared to adopt the rule laid down in Balmadie'scase, that the community or corporation is “not liable for their magistrates, who had not this power by their office i.e., not apart from the statute, and as a natural adjunct and necessary condition of their office) but by the commission of Parliament therefor.”
And, indeed, when the whole frame and structure of the statute, as regards the duties thereby imposed, are considered, the conclusion thus arrived at comes out in the clearest light. For, by the terms of the statute, it is not solely upon the Magistrates and Council that the duty of appointing stent—masters is laid. It is laid upon them in combination with the College of Justice. And though no doubt from some cause foreign to the construction and intendment of the statute, the College of Justice has come practically to be dropped out of the combined trust, which the Legislature had it thus in animo to create; still that which is but an accident in the case does not and cannot affect the character of the trust itself, as that trust was originally constituted on the face and according to the conception of the statute. Now, just suppose that the College of Justice, instead of no longer taking a part, had been from the outset, and was still, in active co-operation with the Magistrates and Council as to this matter of the stent-masters; and it is asked, would it be possible to separate that mere portion of the duty which fell to the Magistrates and Council,
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This view clears the question of all difficulty which might otherwise seem to arise from an argument which has been rested on the supposed analogy of such cases as Innes, 6 th February, 1798, Dict. 13,189, and those others referred to by the pursuers, where the corporations and common good of burghs have been subjected for the escape of prisoners from the burgh jails. For in all such cases the radical obligation lay upon the corporation itself, and the Magistrates and Council, &c., merely acted as the corporation's representatives and administrators in the special matter. Of course, if a corporate body, in a proper concern of its own, be compelled to use the agency of its office-bearers, it must, by familiar application of the maxim, qui facit per alium facit per se, be
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In truth, if there be an argument from analogy at all afforded by the cases in question, it would seem to fix the Magistrates and Council as representatives and administrators not of the community but of the Ministers themselves. For the Ministers being sole beneficiaries under the statutory trust, and it being for their exclusive behoof that that trust is operative, it follows, that on the same principle on which the Magistrates and Council bind the corporation, in all matters in which the corporation is their constituent, they must equally bind the Ministers in matters connected with the annuity, in which the proper constituent is the latter body. For example, if in enforcing payment by diligence from any of the tax-payers, an accidental error or irregularity were to take place, whereby the diligence was rendered illegal, is it possible to maintain that the damage thence arising should be thrown on the common good, instead of upon the annuity fund, which it was the object of the diligence, as a diligence for behoof of the Ministers, and not at all of the community, to enforce?
2. In the next place, even though the community (as acting through the medium of the Magistrates and Council) were to be regarded as the trustees, the Lord Ordinary would still be of opinion, that in the admitted, or at least undisputed circumstances of the case, there is no ground for subjecting them in damages.
To bring out such a result, a case would require to be
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The Lord Ordinary does not think it reasonable to visit the blunder that has here been the ground of action, with such extreme severity. The character of the trust, taking it in all its bearings, he holds substantially to have been as regards the proper corporation of the burgh, and the proper corporate officers and estate, of gratuitous execution, and, as such, to fall within the category, in reference to which it is laid down by Erskine (3. 1. 21.), that “where only one of the parties is benefited by it,” the other “is liable only de vel lata culpa, i. e., for dole or for gross omissions, which the law construes to be dole;” or, as he elsewhere (3.3.36.) expresses it, “only for actual intromissions, or for such diligence as he employs in his own affairs.”
Now, tried by this standard, it is clear, in the first place, that there was here no dole in the proceeding of the Magistrates and Council. In the next place, as it appears to the Lord Ordinary, neither was there that crassa negligentia aquiparatur dolo. For how stands the facts? 1, The statute lays down no precise rule as to the nomination of stentmasters; and, 2, In the absence of any such, both parties are agreed that usage has fixed—not that there shall be an annual election to the effect of renewing de anno in annum, the entire body, or even any stated portion of their number; but, on the contrary, that a stent-master, once elected, continues so indefinitely, and that it is only when a vacancy happens to occur, that it becomes necessary, in the individual case, to take steps for filling up the blank. Now, keeping this in view, observe—3, That, when subsequent to the city's bankruptcy (and the present question does not carry back farther), the Magistrates and Council of 1833 came to have charge, they found the roll of stent-masters complete. There was no
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The Lord Ordinary cannot conceive a case more thoroughly exclusive of either dole or gross negligence, or rather a case, on the contrary, more thoroughly conclusive of the most perfect bonâ fides on the part of the Magistrates and Council, than is here presented. It appears to him that even the acquiescence of the Ministers in the system that had been in action for so long a period is itself a sufficient excuse (if such were wanted) for the Council's not interfering to upset the machinery which had been handed over to themselves as a thing already perfect, and answering all its proper purposes. At all events, if the Ministers deemed a change essential, it was surely their business—where no vacancy had occurred, to call the Council's own attention to the matter—to intimate that such was their wish. If the Council, being so put upon their guard, had refused to comply, that might have raised a very different kind of question. But they were allowed to go on without requisition, or even the most distant hint or suggestion of a wish that they should alter the existing course of procedure. It has been said that the Ministers were themselves in ignorance that there was anything wrong, as they
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The Lord Ordinary, however, is aware that in 1834 the Magistrates and Council did fill up one vacancy, and, again, in 1835, other two, which had by that time occurred in the list of stent-masters. But this does not materially affect the case. For, 1. As the stent-roll is made up by separate survey and valuation ‘in every parochin,’ it could only be as regards those portions of the roll which applied to the particular parishes wherein these vacancies were filled up, that any speciality of this kind could touch the argument; and if the Defenders be right in stating that in these parishes ‘there was little arrear of annuity for the years libelled on left unpaid,—indeed scarcely any that would in any circumstances have been recovered,’—the thing could in any view be but of little consequence. 2. The Lord Ordinary, however, is rather disposed to refuse effect to the speciality altogether, on the broad ground that any error committed by the Council, as regards the vacancies in question, being in conformity with the unchallenged system of appointment, which they found in action when they came into action, was not in the circumstances, sufficient to lay the ground for personal liability (so far as that expression can be applied to the case of a corporation), in the shape of a penal claim for damages.
3. The Lord Ordinary has not in the preceding observations rested anything upon the principle recently so well
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The Lord Ordinary is satisfied that under the present libel the pursuers cannot avail themselves of any special argument for the liability of the defenders, founded on the contract 1815. The action is wholly made upon a breach of the statute. But, at any rate, the contract was not intended to enlarge or in anywise alter or affect the fundamental
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5. Neither has the Lord Ordinary found it necessary, according to the view of the case on which the judgment proceeds, to consider the effect of the decision pronounced in the Bill Chamber in Winter's case. For all the purposes of the judgment, it may be assumed that that decision would in its substance have been repeated upon the expede letters. Indeed were the Lord Ordinary to offer an opinion on the subject, that opinion, as he is at present advised, would be, that as regards the mere charge under suspension, the decision must have been so repeated. At the same time it is perhaps not wholly free from question, whether when the statute says that of the stent-masters “two shall be citizens to be chosen and sworne be the Town Council, and other two shall be nominal, chosen, and sworne be the Colledge of Justice, or such as they shall appoint”—these words, “such as they shall appoint,” do not properly carry back and apply to the Council as well as to the College of Justice,—in which case there might be much to say in support of the appointment, which was actually made by the Magistrates in the present case, as being substantially an act of delegated power. Be this, however, as it may, the Lord Ordinary is certainly not prepared to hold, merely because there was in such a case as Winter's, no legal warrant for the summary charge that was brought under suspension, that therefore the annuity tax, as imposed by the statute, became, to all intents and in every shape whatsoever, unleviable. This is a most important question, not merely as regards the annuity, but as it may possibly come to touch both the cess and poor's rate, and consequently it would deserve the most deliberate consideration before pronouncing any definite judgment in regard to it.
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6. In conclusion, the Lord Ordinary has only farther to observe, that had he taken a different view of the law of the case from what he has done, he must have sent the whole question before a jury, as in an ordinary claim of damage. He has no idea that the pursuers could in any sense be entitled to a decree, as for a liquidated debt, in terms of the stent-roll, which they themselves repudiate and totally deny to rest on any actus legilimus. At best, they could only have such damage as, adopting Lord Kames's distinction between the cases of debts liquidated and unliquidated, they could reasonably and fairly qualify on the whole matter. But in this view it is not doubted but that a jury would make all proper and necessary allowance for such ordinary deductions as the experience of former levies has from time immemorial shown to be unavoidable.
The defalcations inseparable from the most favourable levy of a tax, which falls to be gathered from the whole members of a large community, presents totally different considerations, both legal and equitable, in a question of failure of diligence, from anything that is or can be presented in the case of a messenger's failure to execute as against one single individual a specific legal writ, or of the liability of Magistrates for the escape from the burgh jail of an individual debtor, with reference to the one certain specific warrant on which he stood incarcerated.”
The Appellants reclaimed against the Lord Ordinary's interlocutor, and upon advising their reclaiming note the Court appointed the cause to be heard in presence of the whole Judges, and after the hearing requested the Judges of the other division and the permanent Lords Ordinary to give them their opinions whether the interlocutor of the Lord Ordinary ought to be adhered to. Afterwards, on the 28th of May, 1845, in
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The appeal was taken against the interlocutor of the Lord Ordinary and of the Court.
Mr. Bethell, Mr. Wortley, and Mr. A. McNeill, for the Appellants. By the agreement between the Crown and the corporation of Edinburgh in 1625, the corporation undertook to pay the Ministers of the burgh a fixed stipend of 1200 merks, which, like all other payments undertaken by the corporation, was to be provided out of the common good of the burgh. The Act of 1634, followed as it was by the Act of the Convention Parliament of 1649 and the Act of 1661, came to the relief of the common good by authorizing the levying of a tax upon the inhabitants of the burgh; but that change of the source from which the payment was to be made, in no degree impaired the force of the obligation to pay. The history of the matter, therefore, shews that the maintenance of the clergy was part of the duty of the corporation. Accordingly power is given to the corporation to appoint the persons who are to levy the tax, and to “apply” the tax, when so levied, as they had been in use to apply their other funds for payment of the stipends.
[
That is so. In consequence of certain powers given to the corporation it incurred certain duties. The corporation stood in the situation of trustee, and there has been wilful default in
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There the summons was directed against the Provost, Magistrates, and Council of the burgh, and its competency was sustained by the Court in a judgment which found that the Ministers of Edinburgh have “the sole interest in and exclusive right to the entire produce and benefit of the annuity,” and that the defenders were “liable to hold count and reckoning with the pursuers and their successors for the produce of the said annuity.” To say, therefore, that the present action is not competent, which is what the pleas of the Respondents amount to, is to say that the Appellants have no right to put a question to the party as to the state of the account between them.
[
A bill in Chancery in England would be framed on the model of this summons in the same circumstances, the relation of the parties being that of trustee and cestui que trust. The corporation has a duty to perform which they are called upon
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In Corporation of Colchester v. Lowten, 1 V. & Bea. 246, Lord Eldon laid down, that a corporation is, in respect of property not dedicated to any particular charity, liable to be charged for wilful default. If it be ascertained that a corporation is the depositary of a power, then all the liabilities incident to a trust follow against the corporation as against any other trustee, Russell v. Men of Devon, 2 Ter. Rep., 667; Mayor of Lynn v. Turner, Cowper, 86; Henley v. Mayor of Lyme Regis, 3 Moo. & Pa., 278. There is a statutory relation created between the corporation and the ministers, that the corporation shall execute the power and perform the duty, and the ministers have a clear right to compel, by suit, a due performance of this.
Sir F. Kelly and Mr. Anderson for the Respondents.—The Appellants have not dealt with the question whether, assuming the breach of duty which they allege to have been really committed, the common good, by whomsoever the breach may have been created, can be liable for the consequences. At common law the common good of a burgh is not liable for ministers' stipend. Is there, then, anything in the present case to alter this as to Edinburgh? Previous to 1634 an illegal practice had
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All the cases have, in substance, been attempts to compel compliance with conditions on which property vested in corporations ; but it is quite a different thing when no property is vested in the corporation for the special purpose, and it is sought to make the corporate property liable for the defect in duty of the corporate officers. The statutes have expressly appropriated a fund for the purpose, and freed the common good. No action can lie against a corporation if the effect of the judgment in it is that the judgment must be satisfied out of the corporate funds applied by statute to special purposes. Were this otherwise, then, were the corporation to fail in appointing stent-masters for the rates for the poor, &c., the magistrates might, in this way, transfer the liability from the householders to the common good; and so it would depend on the conduct of the corporators, whether the corporate funds should be applied to their legitimate and appropriate purposes, Pearson v. Magistrates of Montrose, Mor. 13,098; Heriot's Hospital v. Ross, 12 Clark & Fin. 507; Duncan v. Finlater, Mc L. & Rob., 935. If a statute impose a duty on certain individuals of a body it is against them and not against the body that proceedings for breach of the duty must be brought. The Statute, 1661, points only to the council without allusion to the corporation, and the stent-masters are to be appointed, not by the council alone, but by the College of
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My Lords, the Judges below were divided, and it was by a narrow majority, seven to six, alone, that this decision was given, which is now brought here by appeal. In ordinary cases, it would give rise to great anxiety on the part of your Lordships if it were a question of purely Scotch law,—Scotch conveyancing for instance,—to find the greatest lights of that law so equally
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My Lords, it is perfectly clear law in England and in Scotland, and must be so in every country, that a trust may be constituted in the person of A. B. and C. in their individual capacities, or of A. B. and C., magistrates and town council of a burgh, and that that trust may be in them quasi trustees, for the purposes of fulfilling the obligations imposed upon them in executing that trust, and may vest them with the powers of such trustees, and subject them to the duties of such trustees, in their capacity of A. B. and C., magistrates and town council, without making the corporation of which they are the head in another capacity, and without making the city, whose affairs they administer as the magistrates of that city, a party to that trust; and, consequently, without involving the funds of that city, or the funds which those parties administer, not in the capacity of trustees under this particular trust, but in their other capacity of governors administering the funds as magistrates of that corporate town. I hold it to be perfectly clear that the two things may be kept separate; that the two capacities may be severed; and that they may be trustees, not as representing the town generally, not as dealing with the town's funds generally, but trustees under that particular limited and restricted trust, with which the town has no concern.
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My Lords, this does not appear to me to have sufficiently received the attention of the minority in the Court below; and yet if you look into the Act of Parliament, it is impossible to read it with due attention, and to have any doubt upon the subject. In the first place, I may say in passing, that if the common good of the town, previously to the Act of 1661, had been liable, and if the magistrates quasi magistrates administering that common good, and at the head of the town whose common good and whose property it was, had been liable before, another question might have arisen, with which it is unnecessary here to deal. But it is perfectly clear that the town was not previously liable; it is perfectly clear that the common good was not previously liable; and it is perfectly clear that this was an Act which did not make the common good liable. It says nothing of the kind; but it is an Act imposing upon the inhabitants of Edinburgh a certain amount of money to be paid as stipends to those twelve reverend clergymen; and then in order that they may be paid that sum, and in order that it may be collected, the provision is, that it shall be collected by the deacons of the kirks (that appears in practice to have been dropped, but it is part of the Act, and not at all an immaterial part of the Act), or by a collector to be appointed for that purpose. By whom? By the magistrates and town council of the burgh, in their option, as they shall think fit and expedient for the town; and the same magistrates, are to appoint four sworn men in every parish to survey and value the house-mails aforesaid, whereof two shall be citizens, to be nominated, chosen, and sworn, by the town council (as stent-masters, I believe they are called), and the other two shall be nominated, chosen, and sworn, by the College of Justice.
That shews perfectly clearly, therefore, that the appointment to stent and assess, and afterwards the appointment to collect, is given to them, no doubt, in their capacity of magistrates and town council; but it is not given to them as representing
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Admitting that they have committed a breach of their duty for these three years in question, namely, from 1833 to 1836, which is the period complained of, and that they have failed to collect the sum which they ought to have collected, does it follow, because they are trustees, and are appointed to do this, being the magistrates and town council,—because it happens, accidentally, that the magistrates and town council are the persons upon whom that trust has devolved,—and that they have broken that trust,—does it follow, I say, that the common good is to be answerable for their having broken that trust? Most undoubtedly not, and if any case were wanting to prove that which the words of the Act quite sufficiently prove to my mind, I have only to refer to a very old case, but one of very high authority in the law, because Lord Stair, who mentions it, was a great lawyer, and an eminent authority;—I mean the case of Pearson of Balmadies v. The Town of Montrose, a case, which is nearly, as far as principle is concerned, on all-fours with the case at your Lordships' bar. There are two other cases,— Duncan v. Findlater, before this House, and the case of Heriot's Hospital, which go to the same point. My Lords, just see the difference (though I do not think much reference is made to that below) between this Act of 1661, and another, a much older Act, of 1579, chapter 273, to which we were referred in the able and learned argument of Mr. Anderson. In that case, there are mentioned not only the “magistrates and town council,” but also “the common good” or “community,” which comes to the same thing. The community is there made liable, which makes it a totally different case from the present.
My Lords, I have looked through all these opinions, and I
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I have, therefore, my Lords, no doubt whatever, that I shall best discharge my duty by recommending to your Lordships, subject to what my noble and learned friend may have to add, to affirm the decision of the Court below; which proposition I make, let me add, with all possible respect to the learned Judges below, without any doubt whatever.
My Lords, I ought to have stated that a great deal has been said at the bar, and a good deal in the Court below by several of the Judges, who seem to have relied upon it, with respect to the decision of 1813, and the contract of 1815 following thereupon. If you look into that, you will see that it has not, and cannot have, the least bearing upon the present question. If the magistrates had received the money, if the produce had been vested in them, then, past all doubt, they would have been answerable in a count and reckoning for that money.
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The question, then, is, Whether the eighth defence, which amounts to what in England we call a demurrer, “that this claim is not maintainable against the corporation or the corporate estate,” shall prevail?
I conceive that if the individuals who filled the offices of Lord Provost, magistrates, and councillors, when the stent-masters ought to have been appointed, were guilty of the breach of duty imputed to them, they are only liable in their individual capacity, and their fellow-citizens cannot be punished for their default.
The liability of the parties is to be ascertained by the Act of 1661 and the subsequent Acts, extending the area over which the annuity tax is to be levied, and not by any usage or contract which could not be permanently binding on either side.
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Looking to these statutes, in what relation do the Lord Provost, magistrates, and councillors, stand in the appointment of stent-masters? Only as parliamentary commissioners to do an act. They might have been compelled, by legal process, to do that act, and for any wilful refusal to do the act, or gross negligence in doing it, they would be personally answerable.
There seems to me to be no pretence for saying, that in the performance of this duty they were trustees any more than the College of Justice, on whom a similar duty is cast. The summons, in what may be considered its major proposition, alleges, as the foundation of the action “that, under the provisions of the statute above recited, the magistrates and council are bound to the performance of a certain important ministerial duty, in the election of stent-masters,”
It would be very strange if, for the neglect of a duty so imposed upon them, the common good of the city should be liable.
At the bar the case of the Appellants was chiefly rested on the assumption that the Defendants are here sued as trustees for not paying over the stipends of the ministers of Edinburgh. But this assumption is entirely gratuitous. The interlocutor pronounced in 1813, in the suit commenced in 1810, is relied upon as an authority. This interlocutor merely proves that the Provost, magistrates, and council, having got the proceeds of the annuity tax into their hands, they were liable to the ministers for the amount, without being entitled to appropriate any part of it to their own use. The form of action and the facts of the case were there totally different from those which we have here to deal with.
The only decision that has any aspect of an authority in favour of the Pursuers is that of Innes v. the Magistrates of Edinburgh. But that case was materially shaken by Duncan v. Findlater, in which the strange notions that had prevailed in Scotland about making a trust-fund liable to a stranger for the
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On the other hand, the case of Pearson v. the Town of Montrose, to which my noble and learned friend has referred, decided so long ago as the year 1669, when jurisprudence flourished in Scotland quite as much as at the present day, seems to me to rest on sound principle, and to be expressly in point. Under similar circumstances, the Court of Session found “the town and present magistrates not liable, but” (that is, without) “prejudice to the Pursuer to insist against the then magistrates, their heirs and executors;”—thereby establishing the doctrine, that for breach of any such statutory duty the remedy is against the individuals, and not against the corporation, although in respect of their being office-bearers in the corporation the duty had been imposed upon them.
I conceive that in England the remedy would be at law against the individuals, instead of being by bill in equity for a breach of trust. The Court of Queen's Bench would grant a mandamus to compel members of the corporation to do the act, and they would be liable individually for refusing to do the act, or for doing it negligently, whereby damage accrued to the party for whose benefit the act was to be done.
I feel less diffidence in forming my opinion against so large a minority as six Judges, because their reasons seem to me to be wholly untenable. They do not treat the case as one of a fiduciary nature, but as one of contract for onerous cause, considering that by the statutable establishment of the annuity tax, the common good was relieved from a legal obligation to which it was before subject. There is no ground for contending that this is an action of contract, or that any burgh was bound at common law to support the clergy out of the common good. Nor can the circumstance be of any importance in
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For these reasons I agree in the motion of my noble and learned friend, that the interlocutors be affirmed, with costs.
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It is Ordered and Adjudged, That the said petition and appeal be, and is hereby dismissed this House, and that the interlocutors therein complained of, be, and the same are hereby affirmed: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondents the costs incurred in respect of the said appeal, the amount thereof to be certified by the Clerk-Assistant: And it is also further Ordered, That unless the costs certified as aforesaid shall be paid to the party entitled to the same, within one calendar month from the date of the certificate thereof, the cause shall be, and is hereby remitted back to the Court of Session in Scotland, or to the Lord Ordinary officiating on the Bills during the vacation, to issue such summary processes or diligence for the recovery of such costs as shall be lawful and necessary.
Solicitors: Law, Holmes, Anton, and Turnbull— Spottiswoode and Robertson.