Brown — Petition, 17 Nov 1772

Nov. 1 7. 1772. Unto the Right Honourahle the Lords o f Council and Session T H E P E T I T I O N O F The Reverend Mr T number we��� � Minister of the Gospel at Lochmaben, Humbly sheweth, T HAT the petitioner was admitted minister at Lochmaben, in October 1765. When he came to prepare for his re- sidence in the parish, he found the manse was altoge- ther ruinous and uninhabitable, in so much, that he was obliged to be at the expence of hiring a house from the term of Whitsunday preceding his settlement. The petitioner applied to the heritors and magistrates of the burgh, to build him a manse; but this they refused, and on this account, he was obliged to bring a process before the presbytery, who granted decreet in his favours. The heritors of the parish, and the magistrates of the burgh, brought this decreet by sus- pension before the Court of Session, and after a long litigation, in which the suspenders threw in the way every difficulty that was in their power, the petitioner obtained sentence in his favour, and was by the ju stice of the Court found entitled to full costs of suit. From the time of this process, the petitioner is sorry to say, That certain persons in the burgh, and particularly the magistrates, seem to have conceived an ill-will against him, and have endea­ voured to injure him in a variety of different- ways, and to render his his situation as uncomfortable as posib le. The petitioner was ex­ ceedingly unwilling to engage in a new law suit with any of his parishioners; and accordingly, he again and again proposed, that any differences which subsisted between them should be amicably settled. In this, however, he has been unsuccessfu l; his patience has been at last wore out, and he has been obliged to bring a pro- cess of reduction and damages against William Maxwell provost, William Low, William Johnston, and John Dixon, bailies, Alex­ ander Dixon dean of guild, and William Hoggan treasurer of the burgh of Lochmaben, for themselves, and likewise as represent- ing the community, and their successors in office, in order, that he might receive some reparation of the wrongs which he has already suffered, and that the defenders might be put on their guard in time to come against oppressing him as they have hitherto done. T he summons, in the first place, concludes against the defenders, for their causing a barn to be taken down which stood on the pur- suer’s ground, and which belonged to him in property. It calls for production of any acts or decreets of the magistrates of the burgh made relative thereto, and that the defenders should be found liable to the pursuer in damages, on account of the loss which he had sustained by having his barn taken down. The summons, in the second place, concludes against the defen­ ders, for their cutting down, taking away, and selling a consider- able number of trees from off his glebe, which belonged to him and his predecessors in office, and were actually planted by Doctor Cumming, now in Edinburgh, formerly minister of this parish. In the last place, the summons concludes against the defenders for the depriving him in his absence, and without any intimation given to him, of about one half of his feat in the kirk, and redu­ cing it from a convenient table feat, to one which can hold only about four persons. The cause having come in course before Lord Coalston, Ordina- ry, his Lordship was pleased to appoint the pursuer to give in a condescendence of the taels he insi sted upon, and undertook to prove in support of his libel. And upon advisin g the condescendence, with answers, replies, and duplies, the following interlocutor was pronounced: In respect that the pursuer has not offered to prove, that the defenders called in the summons, v iz. The magi- strates and town council of the town of Lochmaben, as representing the community, did commit, or authorise any of ■ i of the alledged wrongs mentioned in the condescendence, assoil- zies the defenders, and decerns, referring to the pursuer to bring a new action against the defenders, or any of them, qua indi­ viduals, i f he shall be so advised.” Against this interlocutor, a representation was given in on the part of the petitioner, in which it was stated, that the defenders were called, not only as representing the community, but fo r them- selves, and that all the defenders whom the petitioner accused par­ ticularly of the wrongs complained of, were called by name; and therefore, that he was entitled to proceed against them as indivi­ duals: That, in committing the wrongs complained of, the de­ fenders had given out, that they were acting in a public capacity, and therefore, the petitioner had reason to apprehend, when he brought his action, that they would have used as a defence, that they were not acting in a private, but in a public capacity; and probably would have produced some act of the town council, au- thorisin g them to do what was complained of: That for this rea­ son, it was necessary to mould this action into the form of a reduc­ tion, calling for production of all acts, orders, or decrees, made by the defenders relative to the matters at issue: That indeed, as no such acts or decreets have been produced, it had become unneces- sary to insist on this conclusion of the libel: But still, that the pe­ titioner had it in his power to insist against the defenders specially called, as private persons, they being called not only as represent­ ing the community, but for themselves, and consequently in two different capacities. The Lord Ordinary having heard parties on the grounds of the representation, pronounced the following interlocutor: “ A ssoilzies the defenders from this process, so far as concerns the conclusion of the libel respecting the barn; and decerns. But before an- swer, as to the other conclusions of the libel concerning the trees cut down, and the feat in the church, appoints both parties to give in mutual condescendences, setting forth, how these trees were situated, whether within or without the dike and hedge belonging to the minister of Lochmaben, or within the property of the burgh, and the defenders explicitly to fet forth, whether they admit the fact alledged by the pursuer, that the trees were planted by Dr Cumming, a former incumbent in this parish: And as to the feat in the church, ordains the parties to conde- scend on the dimensions thereof, before it was cut, and the number number of persons it would then hold, the dimensions thereof at present, and the number of persons it will now contain.” A representation having been given in against this interlocutor, in so far as it assoilzied from the conclusion of the libel respecting the barn; upon advising thereof, the Lord Ordinary pronounced this interlocutor: “ The Lord Ordinary having considered the re- presentation, with the minute of sederunt of the heritors, dated 28th November 1769, and other writings produced, from which it appears, that the pulling down of the barn was authorised by the heritors of the parish of Lochmaben, and their commit­ tee; refuses the desire of this representation, and adheres to the former interlocutor.” And upon another representation for the petitioner, his Lord- ship, of this date, was pleafed to adhere. Against these interlocutors, in so far as concerns the conclusion of the libel respecting the barn, the petitioner must humbly crave your Lordships review; as he has no reason to complain of any part of the Lord Ordinary’s interlocutors, except in so far as they relate to this article of the barn, he shall not trouble you with any argument upon the other grounds of complaint in his summons, but confining himself to this particular, he shall, in the first place, state the facts relative thereto, and shall then submit to your Lord- ships those grounds upon which he hopes for an alteration of the Lord Ordinary’s interlocutors. With regard to the fact, your Lordships have been already in­ formed, that some years ago a new manse was appointed to be built to the pursuer, by decreet of your Lordships: In consequence of this decreet an agreement was entered into by the heritors of the parish with a person who undertook to build it, and in this agree­ ment with the undertaker, it was stipulated, that he should have, in order to assi st him in the building, the whole materials of the old manse, under which was comprehended, not only the manfe itself, but likewise the offices belonging thereto. It so happened, however, that though the mason had occasion to make use of the materials of the old manse itself, of the brew- house, kitchen, stable, and byre, belonging thereto; that yet he had no occasion to make use of a barn, which stood hard by the old manse, and belonged thereto. This being the case, an agree­ ment was entered into between the mason employed in building the new manse and the petitioner, whereby the mason having no occafion occasion for the materials of this barn, he agreed that it should remain untouched, and the pursuer agreed to purchase the barn from him. Accordingly a bargain was completed, and the price agreed on was paid by the petitioner, and received by the mason. The receipt for the price is in process. The persons however, who are called in this process, being re- solved to distress the petitioner, they formed a plan to have the barn pulled down and demolished and the materials thereof con­ verted to their own use. The petitioner being apprised of this, and being unwilling to have any quarrel or dispute with persons, with whom, as minister of Lochmaben, he is so much connected, he did what he could to have this matter fettled by an amicable a- greement; accordingly the pursuer did, for the sake of peace, en­ ter into a transaction with the defenders, whereby he agreed to re­ move from the barn at Lammas 1772, and to acquiesce in its being then pulled down, and the defenders on their part agreed to allow him, during that time, to remain unmolested in the possession This agreement was regularly executed, and signed by the parties, was produced before the presbytery, and recorded in their books. Notwithstanding this agreement entered into in the manner that has been stated, the defenders were very far from laying aside their scheme of having the petitioner removed from the barn, and ha­ ving it pulled down. The petitioner being informed of this, he, in order to prevent it, presented a petition and complaint to the sheriff of the county; upon advising of which, an interdict was pronounced. Some time alter this, a counter-petition was present­ ed to the sheriff, craving that he would remove the interdict. This petition is signed by William Maxwell, then provost of the burgh, one of the defenders: And as it contained a most: erroneous repre- sentation of the case, the sheriff was prevailed upon to remove the interdict; and immediately upon this, and before the petitioner could reclaim to the sheriff, or apply for suspension to the Court of Sesio n, orders were issued to the burgh-officer, to pull down the barn; and he, accordingly, accompanied by Andrew Jardine, in­ dweller in the burgh, went and took the root oil the barn, and pulled it to pieces. From this state of the facts, the petitioner is hopeful that he will obtain an alteration of the Lord Ordinary’s interlocutor, in so far as it assoilzies the defenders from this article respecting the barn. It has been pleaded by the defenders, that the mason who con­ tracted to build the manse had no right to take the hones of the office-houses belonging to the old manse; that he had only right to the materials of the old manse itse l f; and therefore had no title to dispose of the old barn to the petitioner; and that the petition­ er, in virtue of his purchase from him, could acquire no right thereto. To this it is answered, That by the contrac t entered into by the heritors, with Alexander Dickson, the undertaker employed to build the new manse, it is stipulated, that he shall have right to the whole materials of the old manse. And although the materi­ als of the offices are not particularly mentioned in this con­ tract, yet it was understood, not only by Dickson himself, but by every person who was a party to the agreement, that under this was comprehended the materials of the offices belonging to the said manse. Accordingly, Dickson, in his contract with James Dryden, the mason whom he employed to build the new manse, mentions the materials of both manse and offices, and Mr Dryden, without let or molestation, made use of the materials of the offices, brewhouse, outer-kitchen, stable and byre, towards building of the new manse and offices. T his evidently shows what was the meaning of the parties, that they underflood that the materials of the offices, as well as of the old manse itself, were to be considered as made over to the contractor, to asi st him in building a new one. Had not this been understood by Alexander Dickson the contractor, he would never have made over the materials of these offices to Dryden; and had not this been universally understood by the heritors, the magistrates of the town, and every person con­ cerned, Dryden would not have been allowed, when he began to build, to pull down these offices, and to make use of the materials thereof. But it has been said by the defenders, and upon this the Lord Ordinary’s interlocutors assoilzieing them have been founded, That by a minute of sederunt of heritors, dated 28th November 1760, it appears, that the pulling down of the barn was authorised by the heritors of the parish, and their committee; and therefore, that the defenders ought not to be found liable in damages to the peti- tioner. The petitioner is hopeful, however, that upon attending more particularly to the facts your Lordships will be satisfied, that the defenders defenders are not entitled to defend themselves upon the medium, that the pulling down of the barn was authorised by the heritors of the parish, and their committee. The defenders have, indeed, produced what they call a minute of the heritors, of date, 28th No­ vember 1769, in proof of their being authorised by the heritors, to pull down the barn. But then it will be proper to observe, that the order contained in the minute was made up at a meeting of a committee of a small number of the heritors, and which com­ mittee had neither power nor authority given them by the heritors to pull down the petitioner's barn. So far from this, the powers of this committee, which was indeed named by a legal meeting of the heritors were solely confined, as appeals from an excerpt taken from the presbytery records produced, to the reparation of the church and school. They had no powers given them to determine as to the minister’s house, his glebe, or any part of his property: And in none of the meetings of the committee, was the minister ever called as a party, or heard for his interest. Indeed, when it is considered that the heritors knew that they had no right to this barn themselves, it being a certain fac t that they had conveyed the same to the undertaker for building the new manse and offices: That this undertaker, in his bargain with Dryden the mason, con­ veyed the whole materials of both old manse and offices to him: That Dryden intromitted with the whole, without challenge, and sold the materials of this very barn to the petitioner; and that this bargain was confirmed by a submisio n between the magi- strates of the burgh, and the petitioner, recorded in the presby­ tery-books. Considering all these particulars, your Lordships will not readily believe, that the heritors would give their commit­ tee any powers to pull down the petitioner s barn. The petitioner does therefore submit to your Lordships, that the defenders cannot avail themselves of this defence. The barn was pulled down by their order. The committee of heritors had no power to authorise this measure: Of all the heritors in the parish one only concurred with Provost Maxwell, as has been already no­ ticed in the petition to the sheriff; and therefore the magistrates, whose act and deed the pulling down the barn was, must be liable in damages to the petitioner: Add to this, that even by the mi­ nute founded on by the defenders, it was expressly appointed, that the barn should not be pulled down without giving the peti­ tioner one month's warning in writng, remove any and every thing his property, from the said barn. It will not, however, be pretend­ ed, that any such warning was given; on the contrary, the mo­ ment ment the sheriff ' s interdict was removed, the barn was pulled down without any warning whatever, to the petitioner’s great hurt and prejudice as at that time his peats, and the different utensils of his farm, were lodged in the barn, and he had no where else to put them. Since, therefore, it cannot be denied, that William Maxwell, one of the defenders, was one ot the persons who presented the pe­ tition to the s heriff, craving to have the interdict against pulling down the barn removed; and since it cannot be disputed that the barn was pulled down by the immediate order of the defenders; that at no legal meeting of the heritors was the pulling down of this barn authorised; 'that the committee of heritors had no such power given them, and had no right to give any orders thereanent; the petitioner is hopeful your Lordships will be satisfied, that he is well founded in his present action. The petitioner must indeed submit to your Lordships, whether, even upon the supposition, that the measure of taking down the barn had been approved of by a number of heritors, at a meeting regularly called, whether, e- ven in that case, this would have had the effect to free the defen­ ders from an action of damages at his instance, upon the supposi- tion that this were the fac t though it might possibly avail the de­ fenders in an action of relief, against those other persons concur­ ring with them, and authorising the illegal ac t yet the petitioner must submit to your Lordships, that it cannot hurt his present claim against the defenders. The petitioner is advised, that every person must be liable for the wrong by him committed; and that the person who has committed the wrong cannot screen himself from an action of damages, upon the pretence, that what he did was by the orders of another. The defenders,.therefore, cannot, upon such pretence, get free of this action, more especially as it does appear, from the above facts, that not only was the barn pulled down by their orders, but that they were the prime mo­ vers in the whole; and that Provost Maxwell was the acting per­ son in every step. May it therefore please your Lords hips, to alter the Lord Ordi­ nary's interlocutors, assoilzying the defenders from this proces, o fa r as concerns the conclusion of the libel, respect- ing the barn, and to find, that the petitioner is well found­ ed in his present action against them; or, at leas t to allow him a proof of the several facts stated in his libel and conde- scendence, respecting the taking down of said barn. According to ju stice, &c. W I L L. C R A I G.