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NOTES IN THE INNER HOUSE.

ALTHOUGH, of course, much of the time of the Court has recently been devoted to the numerous and melancholy cases arising out of the failure of the City of Glasgow Bank, yet, apart from this branch of law, not a few important decisions have been pronounced since the commencement of this session. To several of these attention has been already directed in our pages, and we now propose to bring down to date, so far as possible, notes on those cases likely to prove of general, or at least of extended interest.

It may be perhaps convenient in the first place to notice one or two ecclesiastical cases which have been decided recently, and we may begin with Cassie and Others v. The General Assembly, etc. (165 L. R. 167), though in point of date it is subsequent to the Paisley Abbey case, to which we shall make reference hereafter.

Towards the end of November judgment was given in this action arising out of a vacancy in the parochial charge at New Deer in Aberdeenshire. The minister died in December 1875, and on the last day of the six months following the congregation appointed a successor, who, four months later, withdrew his acceptance, and the question then turned upon which of two bodies were entitled to the patronage, whether the Presbytery of the bounds jure devoluto were to exercise the right, or whether the congregation still had a right to elect their minister. There was a further question raised as to the title of certain persons to be placed upon the roll of the congregation who had not communicated, and thus acquired right until after the roll had been made up for the election. This latter point was decided against the claimants by the General Assembly of the Church, to which ecclesiastical Court appeal had been made. On the first question, that of the exercise of patronage by the Presbytery jure devoluto, the Assembly decided against their own inferior Court, and granted a period of six months of new, from the date of the notification by the appointee that he declined the charge, in order to allow the congregation an opportunity of appointing. The action in the Court took the shape of a reduction of the judgments of all the Church Courts, with declaratory conclusions as to the right of the persons claiming to take a part in the election of a minister. The persons who made the claim asserted that they did so by virtue of a statutory right, and that consequently they were entitled to appeal to the Court for the vindication of that right. The Act (37 and 38 Vict. c. 82, Church Patronage (Scotland) Act, 1874) gave the Church Courts power "to decide finally and conclusively upon the appointment, admission, and settlement of a minister;" but it was maintained that this jurisdiction, though in one sense final and not open to review, was nevertheless rendered useless in cases where the Church Courts exceeded the limits of the statute, and that in refusing to place these names on the roll

the Assembly had violated the Act. On the other hand, it was contended for the decision of the General Assembly that it fell within the regulations laid down by that body as prescribed by statute, and was in no sense ultra vires. This latter view prevailed, against, however, the judgment of the Lord Ordinary (Young); and the Lord Justice-Clerk in giving his opinion pointed out that "very grave reasons of expediency may manifestly exist for not permitting, during a heated contest, any additions to be made" to the roll, pending discussion in the Church Courts. He thought, and so did Lord Ormidale, that the matter of fixing the time when the roll should be made up was clearly within the regulating power of the Church Courts, and by them it had been regulated.

Although earlier in date than the case of Cassie, we have taken second in order the judgment in Stewart v. The Presbytery of Paisley (16 S. L. R. 105), which is chiefly valuable for the remarks from the Bench as to the working of the Church Patronage Act, 1874. The facts of the case were very simple. The first charge of the Abbey Church became vacant on 19th October 1877, and a new minister was elected in March 1878; he, however, declined to accept the call. The congregation appointed a committee, who reported on April 15th that they could not get the three candidates to allow their names to be submitted to a meeting of the congregation. A motion to proceed to the election was rejected, and one to delay was carried. The committee were then reappointed to confer and co-operate with the Presbytery. On the 19th April the period of six months from the vacancy elapsed, and the Presbytery thereafter resolved to refer the whole matter to the General Assembly, by whom it was discussed and decided that in the sense of the seventh section of the Act (37 and 38 Vict. c. 82) no appointment had been made, and that consequently the right of patronage had accrued tanquam jure devoluto to the Presbytery. Now there were here two points raised, the first as to jurisdiction, the second as to the merits of the case. It is obvious that if the jurisdiction and the finality of the judgment of the Assembly were sustained, the question on the merits could never really emerge, but that otherwise the merits of the case came to have full significance. Two members of the congregation applied for interdict against the Presbytery appointing to the benefice by virtue of the finding of the General Assembly. They pointed to the third section of the Act as conferring the right on the congregation, and refused to concede the claim of exclusive jurisdiction of the Church Court urged on behalf of the Presbytery. In the opinion of the Court, delivered by the Lord President, among many important observations the following may be quoted: "The right to try the qualifications of persons appointed to vacant parishes, to decide finally on the sufficiency of their qualifications, and to admit or reject them accordingly, has always belonged to the Church from the year 1592 to the present day, and that irrespective of the nature of the Church government

prevailing for the time, whether Presbyterian or Episcopal. But the right to decide finally and conclusively on the appointment, admission, and settlement' is conferred for the first time, and must be held to include a final decision on all questions as to the exercise of their right by the congregation in each particular case, and on all questions as to the time, place, and manner in which the admission and settlement of the minister is to be carried to a conclusion. Further than this, the statute does not seem to have conferred any new or exclusive jurisdiction on the Courts of the Church." The learned judge pointed out further that the question here turned upon rights secured as well as created by statute, and that the enforcement or challenge of such could only be effected by means of the Supreme Civil Court, unless per expressum conferred on another Court; and his Lordship added that an enactment conferring on Church Courts "power to adjudicate in a competition of statutory rights would have been so entire a novelty that it would have required very clear words in such a case to oust the ordinary tribunals." The facts of the case were, however, in favour of the Presbytery, and for them, therefore, on the merits the judgment went, it being obvious that the position of two members of a congregation in seeking to revive a right several months after the statutory six months had expired was untenable.

The third ecclesiastical case we shall notice is that of the Reformed Presbyterian Church v. The Ferguson Bequest Fund and Others (January 7, 1879, 16 S. L. R. 300). The Reformed Presbyterian Church at the time of Mr. Ferguson's death was one of five denominational bodies in Scotland which were benefited by the trust created by him for the "maintenance and promotion of religious ordinances and education and missionary operations." Some years later, however, a split took place, and the minority withdrew from the majority, who had abandoned, it was said, the principles of their Church. Later, again, the majority joined the Free Church. The minority had all along been deprived of the benefits of the bequest, and they now sought not merely to share in these benefits, but to have it declared that they alone were the real and original Reformed Presbyterians, and as such entitled to exclude all others claiming in that capacity. The Court gave effect, not to this contention, but to what appeared to have been the intention of the truster, namely, the inclusion of all those bodies who held generally certain theological tenets accompanied by a certain form of worship. In this view both majority and minority were entitled to share in the benefits of the bequest. The expressions of opinion as to the interference of the Courts in theological questions are very interesting when we compare them with the observations we have just quoted in the Paisley case; for they show clearly that while under very exceptional and absolutely necessary circumstances the Court might inquire into the doctrines and rules of any ecclesiastical body, they will always if possible

avoid doing do. Wherever the interpretation of a statute is in question the Supreme Court will exercise its jurisdiction unless expressly prohibited from doing so; but where religious matters are involved it will avoid entering upon the province of the Church Courts, unless it be to prevent glaring injustice or to protect individual rights. So where questions of property are raised as to buildings held on titles permanently associating them with a Church which has broken up into sections, the Courts will adjudge between parties as to their rights in the property even to the extent of inquiring into theological rights and wrongs. "The subject in dispute," the Lord President said, "is matter of civil and patrimonial right, and the Court cannot decide that question of right without reading and interpreting the contract which imposes on the members adherence to particular doctrines, laws, or usages as conditions of membership of the Association." Another example was given of what might occur where a legacy had been left to a church.

These three Church cases have taken up more of our space than at first was intended; but we must before leaving them to notice other decisions generalize in a few lines on the results they have attained. The two earlier cases are by far the more important as interpreting a new statute, and they show that the Court has no desire to take cognizance of detail in the working out of the Patronage Act, nor to interfere in such matters, for example, as the making up of the Communion roll, the regulations as to adherents, or even the appointment of a minister from the presbytery always to be ex officio chairman of the congregational meetings during a vacancy, but that they will interpose to prevent the extension by the Church Courts of their powers or the arrogation to themselves of new rights, and they will review and closely inquire into all matters of this kind. Lastly, adhering to the same principles, the Court will avoid if possible all doctrinal questions, and only act where the legal rights of persons subject to its jurisdiction are involved. It would be well were other Courts created for other purposes to let law alone, and leave it to the lawyers as carefully and anxiously as the Civil Courts leave alone all matters outside of law.

One or two poor law cases have been decided since November last by the Court. In Dempster v. Lemon (16 S. L. R. 194) the principles applied in the leading case of Beattie v. Arbuckle were enforced. The whole question turned upon an alleged admission of liability made seven years before, and the parish which had made the admission was held bound to relieve. "The admission, if made for a certain amount of liability, was an admission for all, provided there had been no change of circumstances." The fact that the matter had been dropped for so long a time was held no bar to the effectual character of the admission. A different point in the same branch of our law was raised by the case of Roger v.

Morison (16 S. L. R. 210), where, in deciding a question of settlement, the Court held in accordance with Cruickshank v. Greig (January 1877), that a pauper whose house was situated and whose family resided in a different parish from that in which he worked, had nevertheless acquired a residential settlement in the parish of his house, although he had never continuously resided therein long enough to acquire a settlement. It was observed that in the present case the general rule was applicable, and that a man resides in the sense of the Poor Law Act in that place where he maintains a house, where his family live, and whither he returns whenever his avocations permit. In the case of Jackson v. Ireland (16 S. L. R. 325), decided on 29th January 1879, the Court gave effect to the contention that the settlement of a pauper's husband, acquired both by birth and residence, inured to his widow, though the husband had not resided in the parish for one year out of the three last years of his life. Lord Young, in giving judgment, referred to the cited authority of Allan v. Higgins (3 Macph. 309), and said that, mutatis mutandis, that judgment, which would then read thus, might suffice to settle the question: "That the husband who acquires is the party to whose presence the law will look during his life, in the event of retaining the settlement, and on his death the widow who inherits his settlement, if she remains resident, would be held to carry on the presence begun by her husband."

The powers of statutory trustees to employ trust funds in payment of expenses incurred in opposing certain bills in Parliament were called in question by way of suspension and interdict in Wakefield v. Commissioners of Supply of Renfrewshire (16 S. L. R. 183). The Court refused to allow the Commissioners to pay out of county assessments the expenses incurred in opposing a road and bridges bill for Scotland with a view to getting Renfrewshire exempted from its operation. The bill did not pass, and there was no doubt the Commissioners had acted bona fide in the belief that the bill would be injurious to the interests of the county; still it was held that their action was ultra vires, and that the proper course would have been to petition Parliament instead of laying out corporate funds in a mode different from that to which by statute they were destined.

In several other cases private trusts formed the subject of litigation. Thus in the special case, Mackay's Trustees (December 3), the ultimate beneficiaries and the annuitant were allowed to come to an arrangement by which the estate, which had vested a morte testatoris, could be at once divided, due security being provided for payment of the annuity. The principle recognised in Kippen v. Kippen's Trustees (10 Macph. 134) was thus more fully developed. So again in Watson and Others (Munro's Trustees, December 13) it was held, not without a dissentient voice however, that where one-third share of the whole estate, including the portion liferented, was bequeathed to the truster's wife, who was also liferented in