Scottish Court of Session Decisions

This was an appeal from the Sheriff-court of Ross-shire in a cause which originated in the Small-Debt Court, but had been remitted to the Sheriff's ordinary roll. The conclusion of the summons was for the sum of £5, 4s., being the balance of aliment due to the pursuer as a member of the defender's society, in consequence of what the pursuer alleged was a temporary inability to work. The defence was that the pursuer had received all that under the rules he was entitled to; and, further, that the rules of the society provided for settlement of all differences by arbitration. The Sheriff-Substitute assoilzied the defenders' proceedings upon a certain resolution of the society, adopted at a meeting on the 8th April 1867, whereby the rates of aliment were fixed as contended for by the defenders.

The Sheriff ( Moncrieff) altered. He added the following Note to his judgment:—“It is not disputed that the pursuer is entitled to the amount of allowance claimed, unless the rates of aliment were altered at the meeting of 8th April 1867, or unless the pursuer is barred by the 28th rule from pursuing in this Court.

There are two ways in which the rules of the society may be effectually altered, so as to increase or decrease the rates of aliment therein specified. The one is the method provided by the 29th of the society's rules, and the other that provided by the 18 and 19 Vict., cap. 63, section 27.

It was not contended at the debate that the formalities prescribed by the 29th rule had been complied with; and the position that was maintained was, that the alterations had been affected, and the rates of aliment decreased, by the simpler method prescribed by the Act of Parliament.

It appears to the Sheriff to be impossible to hold that the rules wore so altered under that section as to exclude the present claim. It is provided undoubtedly by the section of the Act above referred to that the rules of a friendly society may be altered by the members at a meeting specially called for the purpose. But there is a provision that the alterations made at such meeting shall be transmitted to the registrar, with a declaration by one of the officers of the society

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that the directions of the Act under which such society was established have been duly complied with, or that the rules of the society itself respecting the making or altering rules have been observed; and upon the registrar being satisfied that the alterations are in conformity with law, he is bound to give to the society a certificate to that effect. And the Act specially provides that ‘unless and until the same shall be so certified as aforesaid, such rules, alterations, and amendments shall have no force or validity whatever.’

In the present case, the meeting at which the alterations are said to have been made was held on 8th April 1867. But the alterations said to have been made at that meeting were not transmitted to the registrar till 12th May 1869. The registrar thereafter sent a certificate in somewhat peculiar form, the effect of which, as giving force or validity to the alterations from its date, it is not necessary to consider; because this action was raised on 16th April 1869 for aliment due for a period prior to the rules having been communicated to the registrar, or his certificate received, and when, according to the express provisions of the statute, the decrease in the rate of aliment relied on by the defenders was invalid and ineffectual.

“In regard to the 28th rule of the defenders' society there is perhaps more difficulty. The rule provides for settlement of disputes by arbitration, and for an exclusion of appeal to the Civil Court against the judgments of such arbiters; and the 40th section of the Act of Parliament, already referred to, provides that all such disputes shall be decided in manner directed by the rules of such society. But, upon the whole, the Sheriff does not think that this case has been incompetently brought in this Court. A rule by which the ordinary jurisdiction of the Court is said to be excluded falls to be strictly construed. And, strictly construed, this rule does not appear to the Sheriff to apply to the present case. The rule specially deals with differences or disputes among the members. This is a difference between one of the members and the society itself. Nor is this entirely a formal distinction; it will be found to involve substantial difference. In regard to a dispute between two members, arbiters selected in the manner provided by the 28th rule might be able to apply their minds to it in the entire absence of any personal interest, and with perfect freedom from all bias. It is not so, however, in the present case. In this question all the members of the society are interested in one way or the other, and it appears to the Sheriff to be quite reasonable that the rule should provide for the former case, and not for the latter.

Whether the reference would be rendered invalid by the absence of the names of arbiters in the special circumstances of this case it is not necessary to inquire, if the Sheriff is right in the view he has already expressed.”

The defender appealed.

Trayner, for the respondent, objected to the competency of the appeal. The case was one which had been raised and decided in the Small-Debt Court, and if review was competent it was competent only before the Circuit Court of Justiciary ( Graham v. Mackay, 6 Bell's App. 241). The fact that the Sheriff had remitted the case to his ordinary roll did not change its character, or make it other than a Small-Debt case, and the 14th clause of the statute (1 Vic., cap. 41), which provided that such remitted case “shall thenceforth be conducted according to the ordinary forms and proceedings in civil causes,” was intended only to regulate the procedure before the Sheriff, and not to confer a right of review which was not otherwise competent.

Shand for the appellants—The action here was raised no doubt for recovery of £5 odds in the Small-Debt Court; but the case involved more than the mere question of whether that sum was due or not. The pursuer's claim was for aliment from a friendly society, and the defence was rested upon a construction of the society's rules. This case really raised a question of future liability, as well as the extent of that liability; and judgment here would be res Judicata between the parties. The pecuniary conclusion of an action is not the sole test of whether it can be appealed; the value of the cause is the test, and it may be much greater than the sum for which decree was sought; Drummond, 12th January 1869, 7 Macph. 347. The value of the present case was beyond £5, for it involved the liability of the society for the aliment of the pursuer for an indefinite period.

At advising—