Scottish Court of Session Decisions

The summons in this suit, at the instance of the Trustees of the Court Royal Archer, No. 1544, Ancient Order of Foresters' Friendly Society, Greenock, against John Ramsay and others, claiming to be trustees of the same Friendly Society, concluded for declarator that the pursuers are the trustees of Court Royal Archer, 1544, Ancient Order of Foresters Friendly Society, Greenock, and are entitled to all the rights of such trustees, and in particular to the custody of certain documents, consisting pass books, bills, &c., specified in the summons.

The question in this case was whether the pursuers had a right to represent the Court Royal Archer, a subordinate court of the Ancient Order of Free Foresters, or, if not, to sue as trustees of a separate association. The main facts of the case, and the dispute out of which the action arose, are sufficiently set forth in the following interlocutor of the Lord Ordinary ( Mure)—

“24 th April 1874—The Lord Ordinary having heard parties' procurators, and considered the closed record, proof adduced, and whole process, finds that the case, as disclosed in evidence, resolves into and depends upon questions as to which the jurisdiction of this Court is excluded: Therefore dismisses the action, and decerns; Finds the defenders entitled to expenses, of which appoints an account to be given in, and remits the same, when lodged, to the auditor to tax and report.

Note—This action has been raised by the pursuers as ‘Trustees of the Court Royal Archer, No. 1544, Ancient Order of Foresters Friendly Society,’ in order to have it declared that they possess that character, and, as such, are entitled to the custody of the monies, securities, and documents belonging to that Society; and it concludes against the defenders, as erroneously alleging themselves to be trustees of the Society, for delivery of those monies, securities, and documents. It is founded on certain clauses of the Friendly Societies Act 1855 (18 and 19 Vict., cap. 63), by which it is provided that all the estates, real and personal, of any such Society, shall be vested in the trustees for the time being; and by the 19th section of which the trustees are authorised to take proceedings in any court of law or equity concerning the property of the Society for which they are trustees.

Ex facie of the summons, therefore, the action appears to be one which this Court has jurisdiction to entertain, and there is, accordingly, no plea to jurisdiction specially stated in defence. But the defence consists of a denial of the pursuers' statement that they are trustees of the ‘Court Royal Archer, No. 1544, Ancient Order of Foresters' in question; and in the statement of facts for the defenders they enter into an explanation of certain disputes which arose between the members of the Society, including the pursuers and defenders, in the years 1869 and 1870, at a time when the pursuers were not the trustees of the Society, which resulted in the suspension of the Society as originally constituted, and the granting of a new dispensation by the Executive Council of the Ancient Order of Foresters. The effect of this, the defenders contend, was to abrogate and supersede the Society as originally constituted, and to substitute, by the new disposition, under the name ‘Court Royal Archer, No. 1544,’ the Society of which the defenders are trustees, in its place.

The defenders' allegations as to the suspension and reconstruction of the Society having been denied by the pursuers, a proof was allowed; and at the discussion which took place upon the proof the question of jurisdiction was distinctly raised by the defenders, and after repeatedly considering the evidence applicable to the nature of the disputes which led to the suspension and reconstitution of the Society, and the present relative position of the pursuers and defenders, the Lord Ordinary has come to the conclusion that the plea to jurisdiction is well founded, because the right and title of the pursuers to maintain the action depends mainly on the legality of the suspension and proceedings following upon it, which are challenged by them. For if the suspension was a valid act on the part of the Executive Council, the pursuers can scarcely, it is thought, maintain that they are trustees of the Society, in as much as the order of the Executive Council by which the Society was suspended, and was for all practical purposes in abeyance, had been issued prior to the month of June 1870, in which the pursuers allege that they were elected trustees. And if the new dispensation, by which those of the original Society who

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had been opposed to the proceedings which led to the suspension, were substituted for, and continued as the ‘Court Royal Archer, No. 1544, Ancient Order of Foresters,’ was a valid exercise of power on the part of the Executive Council, then the monies, securities, and documents in question fall, it is thought, to be retained by them. Now these acts of the Executive Council are challenged by the pursuers on various grounds, the decision of which is necessary for the disposal of the pursuer's case, but the consideration of which appears to the Lord Ordinary to be excluded from the jurisdiction of this Court,—some of them by the rules and laws of the Society, and others in respect of the 41st section of the Act 18 and 19 Vict., cap. 63.

This suspension and new dispensation appears to have been issued in the following circumstances:—

1. In the autumn of 1869 a dispute arose between the members of the Society relative to the election of surgeon, which led to an appeal on the part of the minority to the ‘Arbitration Committee,’ being the first court of appeal constituted by the laws of the Society. That appeal was dismissed by the Arbitration Committee, upon which an appeal was taken to the ‘District Arbitration Committee’ of the Order, being the next court of appeal, and whose decision is, by rule 88, section 4, of the General Laws of the Order, declared to be binding until reversed or altered upon an appeal to the ‘County Arbitration Committee.’ Under this appeal to the District Court the parties, now respectively represented by the pursuers and defenders, appear to have been fully heard, after which a decision was pronounced reversing the decision of the ‘Arbitration Committee,’ finding that the party who had been elected surgeon had no legal right to the office, and appointing the decision to be complied with not later than the 18th of April 1870. This decision was pronounced on the 2d of April, and was not appealed against. But at a meeting of the Society held on the 15th of April, a motion to comply without qualification with the District Arbitration Committee's decision having been put, an amendment, to comply with the decision ‘by paying a fine of two pounds,’ and reserving the right to appeal to the County Arbitration Court, was put and carried.

2. This resolution of the Society to comply to a certain extent only, and under reservation of the right to appeal, having been communicated to the officials of the ‘District Arbitration Committee,’ was not considered by them to be a compliance with their decision; and a notice to that effect having been forwarded to the Executive Council of the Order, they, on the 19th of May, in terms, it is said, of the 44th section of the General Laws of the Order, suspended the Society from all the rights, privileges, and benefits appertaining to the said district and the Ancient Order of Foresters; and intimation of this suspension was duly made to the Society on the 30th of May thereafter. Now the effect of this, as contended for on the part of the defenders, was to deprive the whole members of the Court suspended of the privileges of membership, and of their right and power to act as a Court of the Ancient Order of Foresters until the suspension was recalled; and it is distinctly shown upon the evidence that it was while this suspension was in operation that the pursuers, other than James Dewar, were nominated trustees.

3. Following upon this suspension, an application appears to have been made by some of those members of the Society who had been all along willing to comply unqualifiedly with the decision of the District Court to the Executive Council of the Order for authority to carry on the Society. Upon this a new dispensation was issued on the 31st of July 1870, authorising the defender John Ramsay, and certain other parties, to hold a Court of Ancient Foresters at Greenock, under the title of ‘Court Royal Archer, No. 1544,’ and which it is alleged they have since accordingly done. And it further appears from the evidence that at the date of the suspension and new dispensation the monies, securities, and documents, of which the pursuers seek to enforce recovery, were in the possession of the late John Love, one of the then trustees of the Society, who, after the issuing of the new dispensation was re-elected a trustee along with the defenders James Inglis and Alexander Miln, and that since Mr Love's death those securities and documents have been in the possession of the defenders.

4. After the issuing of this new dispensation those of the Society who took the same view of their rights and position as the pursuers, continued to meet separately; and on the 16th of February 1871, at a meeting called for considering the question, a motion was unanimously carried to ‘comply with the District Arbitration Committee's decision of 2d April 1870, and request that our suspension be raised according to law.’ Upon this a certificate of compliance was immediately forwarded by the ‘District officers’ to the ‘Executive Council,’ requesting that the suspension might be raised, and the suspended members of ‘Court Royal Archer, No. 1544,’ restored to all the rights and privileges of the Order; and on the 21st of February a letter of reinstatement was issued by the Executive Council, and forwarded to the district officers, cancelling the suspension, and providing ‘that Court 1544 comprising the minority previously reinstated, and the majority now reinstated, will be henceforth recognised as held under the dispensation granted by the Executive Council on the 20th July 1870.’

5. Notwithstanding this reinstatement of the pursuers and those who acted with them, and official reunion of the various portions of the original Society, the parties appear to have continued to meet separately, as they were not able to agree as to the precise terms upon which they were to meet together; and they have differed, among other things, as to which of them is entitled to the custody of the monies, books, and documents to which the present action relates.

Looking at the whole matter, therefore, in a general point of view, the question thus raised as to the books and documents is a dispute between different portions of the Society, for which the rules of the Society do not appear to have prescribed any particular mode of settlement; and falls therefore, it is thought, within the provisions of the 41st section of the 18th and 19th Vict., cap. 63, by which an exclusive jurisdiction is conferred on Sheriffs of counties in such matters; Davie v. Colinton Friendly Society, Nov. 10, 1870. And when the grounds upon which the proceedings relate to the suspension and new dispensation are challenged, as maintained in argument by the pursuers before the Lord Ordinary, are examined, they appear to him to raise points as to which the jurisdiction of this Court is also excluded. For the main questions raised were—1. Whether the

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deliverance of the District Court of Arbitration of the 2d of April 1870 was a sound deliverance; 2. Whether the District Court was wrong in holding that the resolution of the 15th of April 1870 was not a proper compliance with their decision of the 2d of April; 3. Whether the suspension following upon the certificate of noncompliance was legal, and issued according to the rules of the Society; 4. Whether the new dispensation was properly issued, and within the power of the Executive Committee to grant; and (5) Whether the mode in which the district officers were authorised to reinstate the pursuers was one which the pursuers were bound to comply with. Now these propositions, with the exception perhaps of the first and second of them, appear to the Lord Ordinary to raise questions for the settlement of which no special provision is made by the rules of the Society, and which, therefore, the Sheriff of the county is alone competent to deal with; while for the first of them a mode of final settlement appears to be prescribed by the rules, viz., an appeal to the ‘County Arbitration Committee,’ because, subject to such appeal, the decision of the District Arbitration Committee is declared to be binding,—Rule 88, sect. 4.

On these grounds, the Lord Ordinary has come to the conclusion that he has not jurisdiction to dispose of this case, and he has therefore dismissed the action.”

The pursuers reclaimed.