Page:The Green Bag (1889–1914), Volume 13.pdf/442

 Cases from the Old English Reports.

405

the congregation had originally united. He found no case which authorized him to say that the court would enforce such a trust, not for those who ad hered to the original principles of the society, but merely with a reference to the majority; and much less, if those who changed their opinions, instead of being a majority, did not form one in ten of those who had originally contributed; which was the principle here. He had met with no case that would enable him to say, that the adherents to the original opinions should, under such circumstances, for that adherence forfeit their rights."

that the property in question was held in trust for "a society of persons who con tributed their money either by specific con tributions or by contributions at the church door, for purchasing the ground and build ings, repairing, and upholding the house or houses thereon, under the name of the As sociate Congregation of Perth.'' Against this decision there was an appeal to the Inner House of the Court of Session, and th<e- judges were equally divided on the point (the Lord President being disqualified from voting), the result being that the interlocutor of the Lord Ordinary was affirmed with the following amplifying clause descriptive of the Society on whose behalf the property was held in trust: "Such persons always by themselves, or along with others joining with them, form ing a congregation of Christians in a com munion with, and subject to the ecclesiastical judicatory of, a body of dissenting Protes tants, calling themselves the Associate Pres bytery and Synod of Burgher Seceders.'' In this form the case once more went back to the Lord Ordinary (or judge of first in stance), who found that Mr. Aikman and his adherents had the preferable and exclusive right to the ground in question and the chapel and other buildings erected on it. Ultimately all these tangled decisions—"in terlocutors" they are styled in Scots law— came before the House of Lords. It is not perhaps surprising that the result of the ap peal was that the Scotch judges were invited to review their own judgment. P>ut Lord Eldon took occasion to lay down the rule applicable to cases of the kind:

The Court of Session found that the separating members of the congregation had failed to prove any real deviation by Mr. Aikman and his friends from the principles of the original secession and accordingly gave judgment in his favor, and this decis ion the House of Lords affirmed— Lord Eldon cryptically observing, "All I can say is, that after racking my mind again and again upon the subject, I really do not know what more to make of it." The contemporaneous case of A. G. v. Pearson (1817, 3 Merivale 353) however settled the rule substantially in accordance with Lord Eldon's language. It is expressed by Mr. Campbell, with his usual accuracy, in 5, Ruling Cases, 689:

"With respect to the doctrine of the English law on this subject, if property was given in trust for A, B, C, etc., forming a congregation for re ligious worship; if the instrument provided for the case of a schism, then the court would act upon it! hut if there was no such provision in the instru ment, and the congregation happened to divide, he did not find that the law of England would execute the trust for a religious society, at the expense of a forfeiture of their property by the cestiti qne trusts for adhering to the opinions and principles in which

After the reiteration of this rule in "Lady Hewley's Charity" (Shore v. Wilson, 1842, 9, Clark & fin., 355) an act was passed—the Non-Conformists Chapels' Act, 1844—which provides that in cases where there is no ex press statement in the deed of formation as to the particular doctrines for which a chapel was to be employed, twenty-five years' usage is to be conclusive. Curiously enough the

"Where property is held in trust for the purposes of religious worship and teaching, the nature of the original institution must alone, in the case of a split, be looked to as the guide for the decision of the court between rival sections, claiming to have the trusts carried out. The deed (if any) creating the trust is the primary source for ascertaining what was the form of worship and what was the doctrine intended by the foundation; but if it cannot be dis covered from the deed what form of worship or what doctrine was intended, the usage of the congregation must be inquired into, and will be presumed to be in conformity with the original purpose."