Scottish Court of Session Decisions

This action arose out of differences between the Dick Trustees and the late Principal Williams. The pursuers in the action were the office-bearers and a large majority of the members of the Edinburgh Veterinary Medical Society, while the defenders called were the Corporation of Edinburgh, as trustees of the, late Professor Dick, Professor Fearnley, at the time Principal of the Edinburgh Veterinary College, Clyde Street, and several members of the pursuers' Society. The purpose of the action was to have it declared that the pursuers constituted the Edinburgh Veterinary Medical Society, and had right to all its property and effects, and particularly to the library and certain specimens now situated in the college in Clyde Street, formerly occupied by the Society. Defences were not, however, actually put in for any of the defenders except the Dick Trustees and Principal Fearnley.

The pleas in law for the pursuers were—“(1) The pursuers being the office-bearers and a large majority of the whole members of the said Veterinary Medical Society, they, along with the remaining members thereof, constitute the said Society, and have right to the whole property and effects belonging thereto. (2) The foresaid library and other articles in the Edinburgh Veterinary College being the property of the said Society, the pursuers are entitled to remove the said articles from the said college, and to have the custody and use and enjoyment thereof, without any control or interference on the part of the defenders, or any of them. (3) None of the defenders appearing in this action having any right or title to the said library, or other property, they are bound to deliver the same to the pursuers. (4) The said defenders having refused to allow the pursuers to remove the said library and other articles from the said college, and the whole grounds on which they claim right to retain the same being groundless and untenable, and, separatim, being jus tertii of the defenders, the pursuers are entitled to decree against them, in terms of the conclusions of the summons, with expenses. (5) The defenders have no title to maintain the pleas stated by them in defence.”

The pleas for the defenders were—“(1) The pursuers have no title to sue the present action. (2) The pursuers' averments being unfounded and irrelevant, the defenders ought to be assoilzied. (3) The pursuers having connected themselves with a Veterinary School other than the Edinburgh Veterinary College, have forfeited all right to the use of the library and periodicals of the Edinburgh Veterinary Medical Society of the said college. (4) It is an essential part of the constitution of the said Veterinary Medical Society, in the intention of its originators, and also by its rules, that it shall be an adjunct of the Edinburgh Veterinary College, and only exist in connection therewith, and the alleged alteration of this part of the constitution of the Society is invalid. (5) The pretended alterations made by the pursuers on the rules of the Society not having been legally proposed and carried, cannot be given effect to. (6) In respect that the library of books and other effects concluded for were founded and in part endowed by Professor Dick, as a library and museum intended to be auxiliary to the study of veterinary science and medicine in the Edinburgh Veterinary College, and that the said library and museum, by the rules of the Society, are to be locally connected with the said college; the defenders are not entitled to make delivery in terms of the conclusions of the summons.”

The Lord Ordinary pronounced the following interlocutor:—

“ Edinburgh, 10 th April 1874.—The Lord Ordinary having heard the counsel for the parties, and considered the closed record, proof, and process; finds and declares that the defenders, the Lord Provost, Magistrates, and Council of the city of Edinburgh, as trustees of the deceased William Dick, professor of veterinary medicine in the Veterinary College, Edinburgh, under his trust-disposition and settlement libelled on, and the defender, William Fearnley, as Principal of the said Veterinary College, have no right or title to the library, materia medica, and other specimens, models, and other property belonging to the Edinburgh Veterinary Medical Society, and the members thereof, presently situated within the premises in Clyde Street, Edinburgh, of the said Edinburgh Veterinary College: Finds and declares that the pursuers, as office-bearers and members, and the other members of the Edinburgh Veterinary

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Medical Society, have right to the whole books, periodicals, materia medica, and other specimens, models, and effects purchased for or acquired by and belonging to the Edinburgh Veterinary Medical Society, and presently situated within the said premises in Clyde Street, and decerns: Appoints the pursuers to lodge in process, on or before the first sederunt day of May next, a list of the said books and other effects which they aver to be the property of the said society, and to be in the possession or under the control of the said defenders: Reserves all questions of expenses, and appoints the cause to be put to the roll with a view to further procedure.

Note—The Edinburgh Veterinary Medical Association was established in 1834, for the advancement and diffusion of veterinary knowledge, particularly among veterinary students, to whom there were by its rules afforded opportunities for the discussion and consideration of questions connected with their profession. The minutes and rules of the society previous to 1841 have been lost; but by the rules of that year it is provided, that ‘the members of the association shall consist of veterinary surgeons and veterinary students only, that members shall be elected by the association, and that out of the members there shall be chosen six office-bearers—namely, a president, two vice-presidents, a treasurer, secretary, and librarian.’ It appears from the minute-books that the title of the ‘Edinburgh Veterinary Medical Association’ was retained until 1865; in that year the title of the ‘Edinburgh Veterinary Medical Society’ was adopted, and it was afterwards retained. Mr Gamgee having in 1857 started another veterinary school in Edinburgh, a bye-law was passed by the society on 20th January 1858, providing that the members shall consist of veterinary surgeons and veterinary students attending the London or Edinburgh veterinary colleges, and that if any member should attend any rival school or society in Edinburgh he should forfeit his membership and the whole privileges thereof. The right of students to become members was subsequently limited to those attending the Edinburgh Veterinary College, and in 1868 the above-mentioned rule was altered to the effect of providing that a member becoming a student of any other college should not cease to be a member of the society, so far as attending its meetings, but should forfeit his right to the use of its library and periodicals. In 1863 the rules, as altered, provided that Professor Dick should be president, and that the other lecturers in Clyde Street College should be vice-presidents of the society. It was afterwards provided in 1868 that the principal of the college should be president. These rules, as so altered, remained in force until October 1873.

The minute-books of the society show that the society managed its own affairs, applied its funds, which were derived from the entry-money and fines of members, in the purchase of books and periodicals, and otherwise for the benefit of the members made from time to time catalogues of its library, and framed rules which regulated the use of its library by the members.

Professor Dick died in 1866. By his trust-disposition and settlement he conveyed his means and estate to his sister in liferent, and to the defenders, the Lord Provost and Town Council of Edinburgh, in fee, as trustees, for the purpose of maintaining in efficiency his veterinary school in Clyde Street. Mr Williams was appointed by these trustees principal of the college in 1867, and held that office until he was succeeded by the defender, Mr Fearnley, who was appointed principal in August 1873. Mr Williams thereafter started another veterinary school in East London Street, Edinburgh.

No place is specified in the rules where the society should hold its meetings and keep its library; but the society always held its meetings in the theatre or lecture-room of the Clyde Street school down to 1873, and kept its books in a room there, called the reading-room, where its periodicals lay on the table for the use of its members. This was done by permission of Professor Dick, and afterwards of his trustees, no payment being made for the same.

The first meeting of the veterinary society for the winter session of 1873–74 was held, in conformity with its rules, on 31st October 1873, and it took place, by permission of Mr Fearnley, in the college lecture-room. Mr Fearnley took the chair. Upon a motion being made that another member should take the chair, Mr Fearnley immediately stated that he dissolved the meeting, and ordered the members of the society to leave the room. This they did, and nearly the whole of them forthwith adjourned to No. 5 St Andrew Square, where they proceeded with the business of the society directed by the rules to be done at that meeting. A very large number of the students resolved not to attend the Clyde Street College, but to attend the lectures given by Mr Williams. These members, who constituted a majority of the student members of the society, considered that the objects of the society would be best promoted by the students of both schools having perfect freedom of attendance at its meetings, and the full use of its library. Accordingly, at the said adjourned meeting of 31st October a committee of six members was appointed to alter the rules, and to submit them, as altered, to the society for approval. The report of this committee was submitted to a meeting of the society, held on 14th November 1873, in No. 5 St Andrew Square, when the proposed alterations on the rules were submitted and unanimously approved of. These rules were also, at a meeting held on 5th December 1873, unanimously ordered to be authenticated by the president's signature. By these altered rules, it is provided that any veterinary student may be elected a member, that the president, vice-presidents, and office-bearers shall be elected by the society annually, and that every member shall have the use of the library and all the advantages of membership.

On Monday, 17th November 1873, Mr Fearnley and ten student members of the society who bad resolved to study at the Clyde Street College, held a meeting in the Clyde Street lecture-room, and proceeded with the election of office-bearers and also of members, on the footing that they constituted a meeting of the society, and they, and other persons elected by them as members, have since that date held meetings in the same place, on the same footing. Mr Fearnley and these ten members were aware of the meetings held in St Andrew Square, and six of them had attended the adjourned meeting on 31st October held in that place.

The trustees of Mr Dick, and Mr Fearnley, having refused to deliver the library and other effects of

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the society to the office-bearers and members meeting in No. 5 St Andrew Square, the present action has been raised against them, and also against the student members of the society who met in Clyde Street on 17th November 1873, and others, to obtain such delivery. No appearance has been entered by these student members, and the only defenders who have lodged defences are the Lord Provost, Magistrates, and Council, as Mr Dick's trustees, and Mr Fearnley.

These defenders plead that it is an essential part of the constitution of the society that it shall be an adjunct of the Edinburgh Veterinary College, and only exist in connection therewith; and that the library and other effects concluded for were founded and in part endowed by Mr Dick as an auxiliary to the study of veterinary science in the Edinburgh Veterinary College.

The Edinburgh Veterinary College is not incorporated; it is merely a private school for teaching veterinary science and medicine. The buildings in Clyde Street, in which it is carried on, were the property of Mr Dick, and now belong to the defenders, his trustees, for the purposes of his trust-settlement. The Edinburgh Veterinary Medical Society is a voluntary association, which is not dependent upon the Veterinary College, or upon Mr Dick or his trustees for its existence. It was no doubt started for the purpose of assisting in their studies Mr Dick's students, then and for many years afterwards the only veterinary students in Edinburgh, and accordingly it was allowed the gratuitous use of his lecture-room for its meetings, and of a room in his premises for its library and reading-room. But it is a separate and independent association, having office-bearers chosen by its members, who are entrusted with its affairs. The expenses of the society were paid out of its own funds, and its books were purchased with these funds, or were presented to it, and it had and has a treasurer for the care of its funds, a librarian for the management of its library, and a curator for the care of its property. Its books are the property of the society and of its members, and not of Mr Dick's trustees, or of their veterinary college or school, and that college may cease to subsist without affecting the existence of the society. The Lord Ordinary is therefore of opinion that the above-mentioned pleas of the defenders, Mr Dick's trustees, and of Mr Fearnley, are not well founded, and that these trustees, and Mr Fearnley as principal of the college, have no right or title to the library, museum, or property of the society.

Mr Fearnley, being principal of the college, was, by the rules of the society then in force president of the society, and entitled to take the chair at its first meeting during the winter session of 1873–74, held on Friday, 31st October 1873. But the Lord Ordinary thinks that Mr Fearnley was not, as president, entitled to dissolve that meeting. If the motion made was contrary to the regulations, be should have ruled accordingly; but if it was in accordance with these regulations, he should have put it to the meeting. Being principal of the college, he had charge of its premises, and the members of the society did right in leaving these premises when ordered by him to do so, although nothing had occurred at the meeting which rendered any such order necessary, or, as the Lord Ordinary thinks, proper. Mr Fearnley's act did not prevent the society from proceeding with its business on that night in accordance with its rules, and the majority of the members at that meeting were entitled, the Lord Ordinary conceives, to adjourn as they did to No. 5 St Andrew Square, and to transact the business of the society prescribed to take place at its first meeting. The members were also entitled to meet there weekly afterwards, and to conduct its business in accordance with the rules. According to the usage of the society, the management of that business was left, as in the case of similar societies, to its student members, who were bound to attend under the penalty of a fine for nonattendance. It appears to the Lord Ordinary that the student members who met in St Andrew Square on 31st October, and weekly afterwards, were entitled to hold these meetings, and that the defenders, Mr Dick's trustees, and Mr Fearnley as principal of their college, are not entitled to object to what was done at these meetings. The rules of the society provided that meetings should be held every Friday during the winter session, and no notice of these was prescribed or required. The whole ordinary members knew that the society was holding its meetings at No. 5 St Andrew Square. The Lord Ordinary considers that these meetings were meetings of the society; that the procedure at these meetings was in accordance with the rules; and that the meetings which took place in Clyde Street on and after 17th November were not meetings of the society.

The defenders object to the procedure whereby the rules of the society in force in October 1873 were altered, on the ground that the rule was not complied with which provides that ‘none of these rules shall be cancelled or altered unless a fortnight's notice be given, and then only by the votes of a majority of at least two-thirds of the society.’ That majority means, it is thought, and according to the usage of the society is, a majority of two-thirds of the members present at a meeting of the society, and cannot mean a majority of two-thirds of those who had joined the society since its commencement in 1834, and were alive. Edinburgh; and if the latter view were the correct These members are, it is proved, upwards of 400 in number. Very few of them are resident in construction of the rule, the result would be that the rules could never be altered. The procedure whereby the rules were altered was, in the opinion of the Lord Ordinary, sufficient compliance with the above-mentioned rule. These rules were altered on the report of the committee appointed for the purpose. More than a fortnight's notice was given before the alteration, and the rules, as altered, were adopted unanimously on 14th November, and were unanimously appointed to be authenticated by the president of the society on 5th December 1873.

On these grounds, the Lord Ordinary is of opinion that the pursuers, as office-bearers and members of the society, have right to obtain possession of the library, museum, and other property of the society, in order that they may hold and administer the same for behoof of its members. It is of importance to the prosperity of the society, and benefit of veterinary students in Edinburgh that its affairs should be conducted so as to give its benefits to every veterinary student who is or may desire to become a member, irrespective of the school at which he may study. The Lord Ordinary therefore trusts that an amicable arrangement may be made, which may render it unnecessary to pronounce any finding under the petitory conclusion

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of the summons. Such an arrangement would be beneficial not only to the students of both schools, but also to the society, whose finances are scanty enough to secure the beneficial objects for which it was instituted and exists.”

The defenders reclaimed.