"

bears that minors might" vote, "their curators, where they any had, consenting,"-thus leaving it to be inferred that a minor heritor, when he has no curators, was himself entitled to vote. This doctrine, however, is not distinctly deducible from the terms of the report itself, or from that given in 5 Fac. Dec. 729; and it is made more doubtful by a MS. note by Boyle, Ld. J. C., on the Session Papers, in these terms, Refuse, with variation, as to minors with consent of their curators." Read in connection with the interlocutor of the Lord Ordinary, this note seems rather to contradict the rubric.

Maclaurin, in Points of Law, p. 77, says that it has been decided that a minor could not vote as a commissioner of supply at the election of a collector of the cess; and in support of this dictum, he refers apparently to Hay v. Hepburn (1735, M. 8929). As reported, however, the judgment here pronounced seems to be rested on a principle which is beyond the scope of the point in question, and does not truly affect it, viz., that a minor cannot hold an office which involves the exercise of judicial functions. For it was here held that as a commissioner of supply is by the nature of his office a judge, and also liable as a cautioner for the collector, a minor was not eligible for appointment as such; and, therefore, on this ground, an objection to his vote was, in a competition between two persons for the post of collector, sustained. Hence, unless ruled by the case of Rutherglen, supra, it would rather appear that the point has not yet been in terminis decided, whether a minor without curators is entitled to take part in, and vote at, heritors' meetings generally. Principle, however, seems rather to support the affirmative view; and although, quoad capacity, law makes no avowed distinction between the age fourteen and twenty-one, it is probable that, at all events, a minor on the verge of majority (not having curators) would be found entitled, as in the management of his own affairs, to take part in the proceedings at such meetings.

The point seems more doubtful whether a minor heritor having curators can vote at the meetings in question without their concurrence. While there are not wanting considerations which suggest that he might be entitled to do so, legal principle seems, on the whole, rather to point to a different conclusion; and the case of Rutherglen may, perhaps, oe viewed as supporting, if not affirming this latter view. Voting by proxy at heritors' meetings being recognised, a minor heritor having curators, can with their consent grant a mandate to another to attend and vote for him. A mandate executed by the minor alone, in such circumstances would not, it is apprehended, be effectual; and as the case of Cadder, supra, decides, the mandate would be invalid if granted by and in name of his curators alone.

As pupillarity is in the eye of law a state of absolute incapacity, heritors who are pupils-and a similar remark applies to those who are insane-are not entitled, because not competent, to vote at heritors' meetings. The interests of all such heritors must be attended to and protected by their guardians, one of whom may be authorised and deputed by the others to represent them, and take part in the pro

ceedings, and vote at the meeting on behalf of their ward; or they may concur in granting a special mandate to this effect to a person not of their number as their proxy.

The principle upon which, at common law, the nature and extent of the rights of the chairman of an ordinary meeting depend, is not clearly fixed. It has been maintained that having regard to the true character of the duties to be discharged by him, expediency and propriety require that his position at the meeting should be a disinterested and an impartial one, and that to secure as far as possible this result, he should not be entitled, qua individual, to exercise any direct influence on its deliberations, by voting on any motion proposed; and that he should be entitled to vote only in the event of an equal division of opinion among the ordinary members of the meeting, and as it was ex necessitate and in order, qua chairman, to extricate matters from a dead lock. On the other hand, it has been argued, that so to limit the right of a chairman to take part in the business of a meeting would, in many cases, be to exclude him from the exercise of a personal right or privilege, in violation of the rule nemini officium suum debet esse damnosum. There appears to be considerable plausibility in both views. The instances in which the former rule applies are numerous. Thus, the Lord Justice General in the High Court of Justiciary, the Speaker in the House of Commons, and the Moderator of the General Assembly or of a Presbytery, each has only a casting vote, and not a deliberative vote. On the other hand, it appears as the result of judicial decision and dicta on the subject, that at common law, and apart from statute or inveterate usage, the preses of ordinary meetings, such as those of heritors, has not a casting vote, but only a deliberative vote.

On this principle it was held in Thom v. Dalrymple (unrep. in C. of S., H. of L. 1763, 6 Paton 737), that in the election of the Rector and other officers of King's College, Aberdeen, the Principal, who was ex officio chairman of the meeting, was not entitled to a double or casting vote. In Playfair v. MacDonald (unrep. in C. of S., H. of L. 1809, 5 Paton 265), reversing the judgment of the Court below, it was decided-but solely and exclusively in respect of inveterate usage to this effect, which was held to have prescribed the rule in the matterthat the Principal of the College of St Andrews was entitled both to a deliberative and a casting vote. Conflicting opinions were expressed by the judges of the Court of Session in this case as to the law on the point in question. Thus, Meadowbank, Ld., said, "It is founded on common sense that the dignior persona must have preponderance, and therefore a double vote." This view was substantially that adopted by Lord Woodhouselee. On the other hand, Lord Hope, J. C., with whose opinion Lords Hermand and Armadale concurred, said, "I think there is no double vote, and that nothing but statute or inveterate custom can bestow this;" while the doctrine announced by Lord Craig was that the Principal must either have two votes or none at all.

In the case of Cadder, supra, it was authoritatively decided that the preses chosen by, and being himself one of the members of a meeting of heritors convened for the election of an assistant and successor to the parish minister, under the Act 1690, c. 23, was not entitled to a casting vote, while the judgment recognises that he was entitled to a deliberative vote. Assuming, as may fairly be done, the view that the decision in this case was rested on no specialty, it seems to settle the doctrine as above stated, viz., that at common law, and apart from statutory provision, the chairman of an ordinary meeting of heritors is not entitled to a double vote, and that the vote which he may give is an original or deliberative, and not a casting vote. The application of this rule in the case of an equal division of unexceptionable votes on a given resolution, would be that quoad hoc the meeting would prove abortive. This is a serious practical objection to the propriety of the rule, and affords a strong argument against its soundness, at least its propriety. The only reason that such an inconvenient result did not follow in the case of Cadder was because certain other votes were successfully objected to, and equality of division was thus avoided.

In the case in question the point was raised, but not decided, viz., whether a meeting could by consent actual or constructive specially confer on the chairman and as a condition of his appointment, a right to exercise a casting as well as a deliberative vote.

At the meeting of heritors called for the purpose of considering and adopting measures for providing or maintaining church, manse, glebe, or churchyard accommodation, or other parochial requirements of a relative nature, resolutions may be passed to carry a given measure into effect; remits may be made to men of skill, or others, and their reports disposed of; plans and estimates may be approved of; contracts may be concluded, and instructions issued for commencing or proceeding with a given operation; assessments may be imposed to defray the expenses incurred; and a collector appointed to levy from the different heritors the shares of contribution due by them respectively. In a word, the heritors, as a corporate body, may at such meetings take all the steps necessarily or properly connected with carrying into practical effect the general resolution adopted.

If an heritor consider himself aggrieved by any resolution passed at the meeting, his remedy is to apply for redress to the Court of Session, who, as laid down in case of Mauchline (9 Dec., 1834, 13 S. 154, §4), possess authority" to control and direct the body of the heritors in their proceedings referred to. Mere dissent, however, although accompanied by the proper precautionary step of a protest, will not necessarily protect the heritor against the operative effect of the resolution. To secure such protection, he ought to bring the resolution complained of under review of the Court of Session. The mode of doing this has hitherto been by suspension or advocation, according to the nature and practical effect of the resolution. By the recent Act, 31 and 32 Vict., c. 100, § 64, however, the process of advocation is abolished; and although a resolution passed at a meeting

of heritors can scarcely be with propriety styled a judgment of any Sheriff or other "inferior Court or Judge " as specified in the succeeding section, such a construction may perhaps be put upon it, to the effect of permitting review by way of "appeal" in lieu of that by way of advocation, so as to save to this extent a corresponding unintended repeal of the jurisdiction of the Court of Session.

Although on the refusal or failure of the heritors as a body to take self-action in any of the matters now alluded to, the Presbytery of the bounds is entitled to adopt such measures as in its opinion may be necessary, this power of procedure is not such as confers on Presbyteries a right to give practical relief to one or more heritors against the resolutions of a majority. To this effect Presbyteries have not at least hitherto been deemed Courts of Review; and unless-which, however, does not seem to be the case-the recent Ecclesiastical Buildings and Glebes Act (31 and 32 Vict., c. 96) has introduced an alteration in this respect, the appropriate remedy for an heritor to adopt who wishes to protect himself against the consequence of a resolution passed by his co-heritors, is that above pointed out.

In a case now pending, the point was raised-but, under an arrangement of parties, withdrawn from judicial consideration— whether, after a given course of action-such as rebuilding, as opposed to repairing merely, the church or manse-had been adopted by a resolution duly passed at one meeting of heritors, such resolution could be, at a subsequent meeting of heritors, competently recalled and negatived by a counter resolution, and the adoption of a different, and an inconsistent course of action thereby affirmed. This question appears susceptible of an alternative answer. Where nothing of a practical nature has followed upon the first resolution, and res sunt integra, there seems no reason why it may not be competently recalled, and followed by a different resolution. A resolution by a body of heritors is just a formal expression of their will; and, in point of principle, they seem as much entitled to change their opinion on a given subject as they were entitled to form it originally. On the other hand, if something practical has been done under the resolution, and res non sunt integra, as, if expense has been incurred, or a transaction entered into by some of the heritors, or a contract concluded with a third party on the faith of it, then the case of Mauchline, supra, tends to support the viewalthough it does not by any means decide the point-that the counter resolution would in such circumstances be void or voidable, by the parties interested, to maintain the binding character of the original resolution; or otherwise, that if the counter resolution is to receive effect, its promoters should be bound to make good the loss or damage incurred as consequent on the change of mind, on the part of the body of heritors, which it implies.

When due notice of the meeting at which a given resolution is adopted has been given to all the heritors, and when the resolution is competent in itself, and has been passed in a formal and regular

manner, and when, in adopting it, the meeting, or those by whose influence or votes it was carried, have been acting honestly in the matter, the result, as was laid down in the case of Mauchline, supra (13 Shaw, p. 154), is, that each heritor is bound by such resolution, and by the acts generally of the meeting, "whether he be sane or insane, major or minor, present at the meeting or absent, voting with the majority or with the minority, acquiescing in or protesting against what is done."

While a resolution regularly passed implies, inter alia, that the subject of it comes within the scope of the business for which the meeting has been called, and has been embodied in a motion properly made and seconded, and carried by a majority of the heritors present duly qualified to vote upon it, or by their proxies, the amount of the majority is unimportant, and so likewise is the number of persons who have attended or voted at the meeting. This remark is well illustrated by the case last referred to. Here the meeting (of 28th Sept., 1826), at which the resolution was passed to repair the church in conformity with certain plans previously lodged, was attended by only one heritor. Nevertheless, the resolution so passed by him was held to be binding in its consequences on all the heritors; and, on this principle, the advocator, as one of their number, was held liable in a ratable proportion of the expense incurred in executing the repair operations.

The instances seem rare in which individual heritors have pleaded exemption from liability under a resolution of their own body, on the ground or allegation that the meeting was chargeable with culpa in passing it. At the same time, the validity of such a plea is recognised when the culpa amounts to culpa lata quæ dolo equiparatur. As the heritors present at a meeting are by law invested with the character and powers of doers or mandataries for the whole body, the doctrine of responsibility for fault or neglect in their conduct under the contract of mandate applies.* Hence, where the conduct of the meeting passing a given resolution, or embarking on a given course of action, involves the degree of fault or culpa expressed in the above brocard, it seems consistent with judicial authority to say that an absent or an opposing, protesting, or non-concurring heritor will not be held liable for the result of such resolution or course of action. The kind of fault referred to may be one of commission or of omission, and it may amount to, or consist in, either (1) fraud, or (2) wilful misconduct, or (3) gross negligence.

When the heritors present at a meeting, or a majority of them, are guilty of a fraud, or are practising deception against the minority, or against any absent member, in passing a given resolution, or in doing or ordering a certain thing to be done, then law will step in to protect such absent or dissentient member from liability under or in

* See Mackenzie's Roman Law, p. 197, where the theory of responsibility for fault is very clearly explained, and the rules applicable thereto stated.