Scottish Court of Session Decisions

This action was raised in the Sheriff-court of Greenock at the instance of the respondent, as executor of his mother, to recover the amount for which the deceased had insured her life with the appellants' society. The defence was a denial of the resting-owing, on the ground of misrepresentation as to the deceased's age at the time of effecting the insurance, but an offer to pay what would have been due in respect of the premium really paid, and calculating the deceased's right upon her real age and not her age as represented.

The Sheriff-Substitute ( Tennent) sustained the second plea in law for the defender, which was that the secretary of the society had not been made defender in terms of section 7 of 21 and 22 Vict., c. 101, and dismissed the action. The action had been directed against the society and its agent at Greenock. On appeal, the Sheriff recalled this interlocutor, and remitted to the Substitute to proceed with the cause. Thereafter the Sheriff-Substitute

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having allowed a proof of the defender's statements, the pursuer appealed. The Sheriff-Principal pronounced this interlocutor:—

“ Edinburgh, 14 th April 1870.—The Sheriff having considered this process, sustains the appeal for the pursuer; recalls the interlocutor appealed against; repels the third and sixth pleas for the defender: Finds that the now deceased Janet Leitch was a contributor to the Scottish Legal Burial and Loan Society: Finds that she died on 4th June 1868: Finds that on her death her executors were entitled to receive from the defenders, in respect of said contributions, the sum of £34: Finds that the pursuer has been decerned by the Commissary of Buteshire executor-dative qua one of the next of kin to the defunct: Therefore grants warrant, and ordains the clerk of court to pay over to the pursuer the sum of £10, 6s. in his hands, with any interest that has accrued thereon; and decerns against the defenders for the balance of the sum concluded for, being £23, 14s., with interest thereon as concluded for: Finds the pursuer entitled to expenses; allows an account thereof to be lodged; and remits the same to the auditor to tax and report.

Note.—The only remaining points in this case not disposed of are the third and sixth pleas stated by the defender. These pleas are untenable. The twelfth rule says, ‘if at any time it be proved, to the satisfaction of a majority of the committee, that any person or persons gained their admission by giving a false account of their age or state of health, or having any disease on them at the time of their entry, and not making the same known, they shall be expelled, and forfeit all monies paid.’ The punishment here to be applied is to the contributor himself. He is to be expelled from the society, and he is to forfeit all the monies paid. The rule is inapplicable to the case of an executor after the contributor is dead. A penal clause like this ought to be rigidly construed. It is clearly implied that the contributor himself, who has been held to have done wrong, is to have an opportunity of proving his innocence to the satisfaction of the committee, which in very many cases an executor would have no means of doing.”

The defenders appealed to the Court of Session.

Millar, Q.C., and Campbell, for respondent Leitch, objected to the competency of the appeal, in respect that by rule 19 of the society the decision of the dispute by the Sheriff was final. That rule is as follows:—“Every dispute between any member or members and the executors, administrators, nominee or assignee of a member, and the treasurer or other officer, or the committee of the society, shall be referred to and decided by the Sheriff of the county, or two Justices of the Peace, in the manner provided for by sections 5, 6, and 7 of 21 and 22 Vict., c. 101.”

The clauses of 21 and 22 Vict., c. 101, referred to, embody section 40 of 18 and 19 Vict., c. 63, which is as follows:—“Every dispute between any member or members of any society established under this Act, or any of the Acts hereby repealed, or any person claiming through or under a member, or under the rules of such society, and the trustee, treasurer, or other officer, or the committee thereof, shall be decided in manner directed by the rules of such society, and the decision so made shall be binding and conclusive on all parties without appeal.”

Trayner, in answer, admitted that there was no appeal on the merits under the statute; but this appeal was directed against the judgment of the Sheriff, which it was not within his competency to pronounce. The word “Sheriff” in the statute included Sheriff-Substitute ( Fleming v. Dickson, 19th December 1862); and as the Sheriff-Substitute had pronounced a judgment which by the statute was final and without appeal, the judgment now complained of was null. The respondent could only get the judgment of the Sheriff-Principal by an appeal under the Sheriff-court Act of 1853. But such appeal was equally excluded as an appeal to the Supreme Court by the Friendly Societies Act.

At advising—