THE CONVENERY OF THE INCORPORATED TRADES OF EDINBURGH v THE GOVERNORS OF HERIOT'S HOSPITAL (Court of Session)

‘The Lord Ordinary having considered the closed record and the process, and heard parties thereon, sustains the defences, assoilzies the defenders, and decerns; finds the pursuers liable in expenses; appoints an account thereof to be given in, and when lodged, remits the same to the Auditor, to tax and report.’

The 3. and 4. William IV. cap. 7, therefore, required to make no special provision on this subject, because the alteration which it introduced in the mode of the members' appointment would have produced no change in the right of the Council, as such, to govern the Hospital. But it does make provisions which meet the pursuers' idea , that the foundation is not in favour of the Council, whatever it may consist of, but of its original parts.

Cases may possibly emerge hereafter which may create difficulty, by producing a repugnance between the foundation and the modern constitution of the Council. The complaint of the pursuers, that their Deacons may be altogether excluded from the management, if it be stated as a mere grievance, is not for the Court, which is only to settle rights. But they ought to recollect, that formerly only eight of them could ever be Governors, whereas now the whole thirty-three, of which the Council consists, may. It is said that there are more than eight of them in the Council now.’

Lord Ordinary, Cockburn. Act. Dean of Fac. (Hope,) M'Neill. Alt. Rutherfurd, More. Alex. Cuningham, W.S. and M'Ritchie, Bayley & Henderson, W. S. Agents. S. Clerk.