who ought never to have been brought before the Court at all, has set up more than one defence. But there is no reason here for dividing or giving less than the whole costs.

THE LORD JUSTICE LORD CRANWORTH.-I am of the same opinion. The Vice-Chancellor seems to have gone on the ground that there was no agreement capable of being enforced. The agreement relied on is, in two respects, deficient. I am not satisfied what that paper was which was referred to in the letter of the 15th April, 1843, as "the agreement in Mr. Cuthbertson's hands; " and if the document A be that paper, I am of opinion that the terms of it are too ambiguous for the Court to carry into effect. The appeal must be dismissed with costs.

* ATTORNEY-GENERAL v. MURDOCH.1

* 86

1851. November 11, 12, 14, 16, and 17. 1852. January 23. Before the LORDS JUSTICES.

A chapel in England was founded between the Restoration and the Revolution, without any deed or document declaring the purposes for which it was to be used, but it appeared that from the foundation the services had always been conducted in conformity with "the Directory," by which the mode of worship in the Church of Scotland is regulated.

Held, that the chapel must be treated as appropriated to the purposes of religious worship according to that directory, and, therefore, according to the Presbyterian form."

A minister of such a chapel had been ordained by a Scotch presbytery. He afterwards became a member of a synod assembled in England, which adhered to certain resolutions respecting church patronage in Scotland. Subsequently a General Assembly of the Church of Scotland enacted, that all members of that synod who so adhered were no longer members of, or in communion with, the Church of Scotland. Held, that the minister was thereby deprived of his status of an ordained minister of the Scotch, or of any Presbyterian Church, and became disqualified from acting as the minister of the chapel (independently of any question, whether it was necessary for him to be a Scotch minister or licentiate), it being an essential part of the Presbyterian

'S. C., 7 Hare, 445.

See Attorney-General v. Clapham, 10 Hare, 540; 4 De G., M. & G. 591; Attorney-General v. St. Cross Hospital, 17 Beav. 454.

system that none but ordained ministers or licentiates should perform divine service.'

Semble, per Lord Justice KNIGHT BRUCE, that with respect to a question of property it is competent for a congregation of dissenters, acting unanimously and with the concurrence (where they have trustees) of their trustees, to introduce effectually into their system and constitute new regulations, not in contravention of any deed of trust, and not opposed in principle to the original constitution; and that it is competent for such a congregation in England to resolve effectually, though not irrevocably, that every future minister shall be a person in communion with the Established Church of Scotland.2

The effect of usage as evidence of the trusts, on which a dissenters' place of worship is held, varies greatly in different circumstances, and, the Court differing in opinion upon the evidence whether it was a necessary qualification for a minister of a particular chapel to be a minister or licentiate of the Church of Scotland, the decree of the Court below, declaring that qualification to be necessary, was affirmed, as well as other portions of the decree with which both members of the Court agreed.

THIS was an appeal from the decision of Vice-Chancellor WIGRAM, reported in the 7th volume of Mr. Hare's Reports, p. 445. The facts of the case, and the arguments relied upon, sufficiently appear from that report and the judgments.

The Solicitor-General, Mr. Little, and Mr. T. Deere Salmon supported the information.

Mr. Rolt, Mr. Malins, and Mr. Selwyn, were for the defendant Mr. Murdoch and some other defendants.

1 See 2 Dan. Ch. Pr. (4th Am. ed.) 1653; Lewin Trusts (5th Eng. ed.), 401, 402; Attorney-General v. Munro, 2 De G. & Sm. 122; Daugars v. Rivaz, 28 Beav. 233; Attorney-General v. Gould, 28 Beav. 485. As to the rights of a parish consequent upon a change in religious views and sentiments, or the adoption of a new system of divinity by their minister, and the mode of trying the question of such change, see Burr v. Sandwich, 9 Mass. 289; Avery v. Tyringham, 3 Mass. 182; Sheldon v. Easton, 24 Pick. 287; Hollis Street MeetingHouse v. Pierpont, 7 Met. 499; Attorney-General v. Meeting-house in Federal Street, 3 Gray, 1; Attorney-General v. Dublin, 38 N. H. 459; Earle v. Wood, 8 Cush. 430.

2 See The Attorney-General v. The Meeting-house in Federal Street, 3 Gray, 1.

3 See Attorney-General v. Dublin, 38 N. H. 459; Attorney-General v. Meeting-house in Federal Street, 3 Gray, 1; Attorney-General v. Rochester, 5 De G. & M. 797; Attorney-General v. Clapham, 4 De G., M. & G. 591; Drummond v. Attorney-General, 2 H. L. Cas. 837.

* Mr. Lewin for other defendants.

87

THE LORD JUSTICE KNIGHT BRUCE. The controversy in this suit (a cause by information and bill) concerns the trusts upon which a small landed property at Berwick-upon-Tweed, on part of which stands a building called the Low meeting-house, or now (as it seems) more generally, Hyde Hill chapel, is held. It is and has for many years been a place of worship for Protestant dissenters: that is, as the relators and plaintiffs say, for Protestant dissenters of a particular class and description, not Protestant dissenters generally, a limitation of the term which (as I understand) the counsel for the appellants, who are three of the defendants in the cause, do not concede or admit. But that it has always been, and ought to continue to be, used as a place of worship for Protestant dissenters in some sense, and that, of this place of worship and its congregation, there ought to be a settled minister, having the right, while duly retaining that office, and willing and able for the purpose, to perform its functions, are propositions common to the disputants, and to be taken for granted; as likewise is the proposition that the term "Protestant dissenters" must in the cause be understood as a term used in England concerning the congregation of a place of worship situate in England.

The main or perhaps substantially the sole question is, as to the fitness and qualification for the particular ministerial office that has been mentioned of the gentleman who at the time of the commencement of this suit filled it, namely, the appellant Mr. Murdoch, and as to the fitness of the two other appellants, who are two of the trustees of the property for the purposes to which it is applicable, to continue in the trusteeship. But there is substantially, I think, no difference between the cases of the appellants. *For if Mr. Murdoch ought not to continue to be the minis- *88 ter, it seems to me plain enough that, entertaining the same views and associated and acting together as to every thing material in this litigation, the three ought alike to be removed or retire. And if Mr. Murdoch ought to be allowed to continue as the minister, there is no case against either of the other appellants. The chief or sole contention of the relators and plaintiffs (the principal respondents in this appeal) may, with sufficient accuracy for every present purpose, be stated thus: They may be considered as insisting, first, that it is absolutely necessary to a due administration of

the trusts by which the property is bound, that the minister on the foundation should be, when appointed, and should, while its minister, continue to be, in communion with the Established Church of Scotland, should, when appointed, be or have been a licentiate of the Established Church of Scotland, and should, while the minister on the foundation, be and continue a minister of the Established Church of Scotland.

They insist, in the second place, that Mr. Murdoch (with whom the other appellants make common cause), though when he became the minister on the foundation, and for some years afterwards, he had those qualifications, did subsequently and before the institution of this suit, avow and pursue opinions and a line of conduct disqualifying him as a minister of the Established Church of Scotland, and cease not alone to be a minister of that church, but also to be in communion with her.

Each of these propositions is combated by the appellants, who insist that Mr. Murdoch is a proper and fit person to be and continue the minister upon this foundation, that he was so when first

elected and placed upon it, and that he has ever since con*89 tinued to be so. Such is the main or sole issue, or such the main, or sole issues, before us for determination, and that determination must depend (for the controversy, if not merely of fact, is more of fact than of law) on the evidence, the admissible evidence, before the Court; especially as it has been stated by the counsel on each side, that they believe the case as it stands to contain all the evidence capable of being usefully brought forward.

Now, though it will, I think, be convenient to deal with the second proposition of the relators and plaintiffs first, it may be as well previously to notice the earliest entry in one of the two only books belonging or relating to this meeting-house, which have, so far as I am aware, been produced; a book, namely, in the nature of a kirk-session record, or kirk-session book. That entry shows the manner in which Mr. Murdoch's election and appointment took place, and is thus:

"Session Record of Hyde Hill Chapel, Berwick-upon-Tweed, in connection with the Church of Scotland.

"1836. At a meeting of the congregation of Hyde Hill chapel, formerly known by the name of the Low meeting, the congregation proceeded to elect a pastor from among four candidates who had

preached on trial, viz., the Rev. Alexander Murdoch, Rev. Robert Broomfield, Rev. Alexander Rennison, and the Rev. William M. Thompson, when the Rev. Alexander Murdoch, assistant to the 'Rev. James Melville Macculloch, of Kelso, was chosen by a majority of eighty-seven votes."

"1836. A call signed by the elders and trustees and seatholders was given to the Rev. Alexander Murdoch, and an application made to the presbytery of Kelso praying that reverend body to take him on trial for ordination, to which they readily acceded."

*“At a meeting of trustees on the 12th day of June, 1836, *90 a deputation from the congregation, consisting of Messrs. William Wilson, William Smith, and William Rutherford, elders and trustees, and Mr. Robert Marshall, trustee, was appointed, who attended the meeting of the presbytery upon Tuesday, the 14th day of June, which day the Rev. Alexander Murdoch was ordained to the pastoral office on that occasion, as also on Thursday, the 16th day of June, when the Rev. Alexander Murdoch was inducted; the Rev. James Thompson, of Ednam, moderator of the presbytery of Kelso, presided."-" On sabbath, the 19th day of June, the Rev. James Melville Macculloch preached on the forenoon, and introduced their pastor to his flock."

I may also at the same time observe, that, with respect to the same transaction, the other of the two books has these entries:

"Low Meeting, 5th May, 1836.

"The committee having met agreeable to the resolutions of the 2d inst. proceeded with the election, when the numbers were as follows; viz.,

"The chairman having announced the above to the meeting, informed them that the election lay between Mr. Murdoch and Mr. Rennison, and would take place on Monday 1st at four o'clock, and close at eight o'clock."