Scottish Court of Session Decisions

Lord Justice-Clerk.—I have attended minutely to both acts of Parliament, and viewed them with reference to both cases, which depend on the same principle, and I must own, that, though I am perfectly satisfied that these acts show great anxiety on the part of the legislature for the interests of these societies, and have established a code of regulations for their guidance, I have not been able to see any thing in them to load me to doubt the propriety of the judgments pronounced in the Inferior Court. It is important to attend to the nature of the constitution of the society. The risk of unskilful calculation is contemplated and provided for, though I am not satisfied that the calculation was so far wrong if the society had succeeded in obtaining a sufficient number of members. They make a number of most salutary regulations, and retain power to alter and amend the rules (which enabled them to extend the period of contribution), and to call on the members to contribute if the funds should turn out insufficient. In 1825 they availed themselves of the power to extend the period of contribution. This woman's husband paid till within a few months of ten years, and she completed that period. Then, according to their constitution, she was entitled to an annuity at the rate of £10. Her right was thereby perfected, and vested in her; but afterwards, they say they will cut down the annuity from £10 to £4. They might have reduced it to 4d. on the same principle. This, as it appears to me, was a violation of the solemn contract, under which her husband had paid his contribution; and I hold that they had no power to affect her right after it was completed. She was no longer a member; and, by the 33 Geo. III., she could not be affected by after regulations. Then does 10 Geo. IV. make any difference? It is a consolidated act, repealing various statutes, and among others the 33 Geo. III., but it contains this provision, that the repeal shall not invalidate any thing done under the previously subsisting acts. Then, can it be said that this woman is not in a situation to maintain that something had been done in pursuance of that act, of the 33 Geo. III.? I hold it is as clear as the sun, that this clause saves the rights of all parties perfected before the passing of the 10 Geo. IV. It seems to me plain, that there was to be no remodelling without the clause to save completed rights, and that such remodelling was only to have effect as to the parties making the alterations, but cannot retrospectively affect the rights of persons perfected, and who were no longer members of the society. Therefore, it is of no consequence that it was remodelled under the new act, as this cannot interfere with interests vested before the passing of the act. Then the only other question is that of jurisdiction in respect of the provision for settling disputes. Now the cases referred to are toto cœlo different from the present. The 33 Geo. III. applied only to members of the society under which the cases of Cooper and Lindsay fell, and there was no clause in that act extending the provision to persons not themselves members. The 10 Geo. IV. extends to all parties; but the applicability of this to the parties here depends on principles already referred to, whether the remodelling can affect previously existing rights; and as I hold it cannot, I am of opinion that they are not limited to the mode of settlement there provided, but that they are entitled to apply to the ordinary Courts. Therefore, I am for adhering in the suspension, and refusing the bill of advocation.

Lord Glenlee.—I agree.

Lord Meadowbank.—I am decidedly of the same opinion, and on the same grounds. I am satisfied that this case must be regulated by the 33 Geo. III., and that rights previously completed could not be affected by any remodelling under the 10 Geo. IV. This was just a mutual assurance, which did not confine the claims to the stock of the society by subscription. In that case there would have been a strong ground for applying the principles of equity founded on by the advocators. But looking to the rules, it is clear the parties did not rely merely on the amount of Subscribed stock, but on the solvency of the subscribers. In that situation, and considering that the act authorized an association of this description, I concur with your Lordship.

Lord Medwyn.—I am quite aware of the weight of authority against the opinion I entertain, but I am bound to state it. I have endeavoured to divest my mind of the feeling of injustice of allowing this woman to draw so much more than the others, and to determine the question by rules of law alone. If I could consider her a proper creditor, I would not be inclined to come to a different conclusion from your Lordships. But I cannot hold that she has a vested right to any particular sum, or more than a right to draw an equal sum with other widows No doubt this is a society of mutual insurance, but it is one where only the subscribed fund is bound, and with a reserved power to alter the rates. This power was given by article 39 of the regulations, under which this society was established. Under these rules, these widows Were creditors no doubt, but not under an unconditional contract as for payment of a debt. Then comes the act 10 Geo. IV., which was necessary, because the rates in such societies had been generally calculated too low and the main object of it was for the regulation of existing societies, and not merely for the establishment of new ones. Under this act this society did remodel their rules, altering the rates of payment. If I could hold the same opinion of the saving clause as your Lordships, then there could be no doubt; but looking to the whole scope and tenor of the act, I cannot put that construction on it. I drink it was only to save what was actually done, as payments already made; for otherwise, it would be inconsistent with the subsequent provisions as to the parties to be affected by the new rates. This is the material question, what parties are to be affected? It is expressly declared, sect. 8, that the new rules are to be binding on the several members and contributors, and it does not stop diere, but goes on, “and their representatives.” I hold this intended to effect the widows and children of contributors. It could only have been introduced to include them, as members living can properly have no representatives. It was just the same as “all parties” in the former act. The terms are as comprehensive as possible, and they are also confirmed by the terms of the arbitration clause, “any member or person claming on account of any member.” It is said this cannot be the construction, as they are no longer members, and that it would be unjust, as they cannot appear and vote. This is answered by the other clause, as to dissolution requiring the consent of all parties receiving relief on account of sickness, &c., but excluding the voice of the widow, although I hold dissolution must have put an end to her claim for annuity. [Lord Meadowbank and the Lord Justice-Clerk—The claim would still hold against the members.] If I thought that the rules authorized another mode of making up the deficiency, and entitled her to rely on the solvency of the individual members, it would affect my opinion, but I cannot agree to that, Therefore, I think the widows were bound by the rules, as remodelled under the 10 Geo. IV., and that they cannot be in a better situation than widows under that act. As to the competency, there could be no objection, because the action was brought before the rules were remodelled. I think, however, the rate has been withdrawn, and that the parties here must be claimants on the fund merely under the new regulations, and are bound by the arbitration clause. If the fact were disputed that the existing funds would afford the rate sought for, it might be Subject to control of the Court, whether the reduction was duly made; and in that case, I Would be for remitting, With instructions to enquire if the funds could afford nothing more than £4, and in such case only to allow the reduction.

Lord Glenlee.—Cases may occur where Parliament would be justified in annulling previous contracts, which could not be explicated without ruin to the great body of the people, and, for expediency, it might be warranted in placing them on a new footing. But it is not to be inferred by implication that such is intended; and we are to consider if there is any thing plainly disannulling rights previously acquired, and substituting new ones. Where, however, is the clause implying that here? Whether the first clause expressly saves every thing or not, it is certainly much more like saving than disannulling, and that the new act was not to be in prejudice of obligations already come under; and, on the whole matter, I think the interlocutor right.