Scottish Court of Session Decisions

This petition was presented by Miss Beatrice Clugston, David Davidson Balfour, James Campbell, David M'Cowan, honorary treasurer of the

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Glasgow Royal Infirmary, and John Pirrie, treasurer of the Glasgow Convalescent Home, in the following circumstances, as stated in the petition—In December 1866 a bazaar was held in Glasgow under the auspices of the Royal Infirmary Dorcas Society, Glasgow, for the purpose of raising funds for the establishment of a home for the reception of patients recovering from fever, and a children's hospital, both in or near Glasgow, both of which charities were promoted by the petitioners, Miss Beatrice Clugston, Mr David Davidson Balfour, and Mr James Campbell. The funds realised at the said bazaar, which amounted to £4893, 0s. 3d., were appropriated in certain proportions, in pursuance of an arrangement among the parties interested—(1) Towards the establishment of a convalescent fever home, the bazaar having, as already mentioned, been held under the auspices of the Glasgow Royal Infirmary Dorcas Society (the Royal Infirmary being then the only institution for treating fever patients); and (2) in aid of a sick children's hospital. The former sum amounted to £1976, 4s. 6d., and the latter to £2916, 15s. 9d. The sum appropriated to the Sick Children's Hospital had been applied towards the erection of the Sick Children's Hospital in Garnethill, Glasgow. The sum set aside for the Convalescent Fever Home was inadequate to meet the expense of erecting or establishing such a fever home as was originally contemplated, and there was great difficulty in finding in the neighbourhood of Glasgow a site suitable for the purpose. The total sum under the charge of the petitioners at the date of presenting the petition was £3476, 9s. 6d.

The petitioners averred—“The conditions with regard to fever and other infectious diseases existing in 1866 differed from those which the petitioners found to exist on entering upon their duties, in respect (1) that the treatment of these complaints was not then fully assumed by the local authority, (2) their hospital accommodation was limited, and (3) it was situated in the centre of the town. The necessity for a fever home which existed at the date of the bazaar now, however, no longer exists, for since that date the local authority of Glasgow, under the powers and obligations conferred by The Public Health (Scotland) Act 1867, have wholly taken in hand the hospital treatment of infectious diseases. Their accommodation is ample, the Hospital being situated in the country, with several acres of pleasure ground attached. The convalescents are kept apart from acute cases, and are retained until fit for work. It is thus obvious that the functions which it was intended should be discharged by the fever home are now fully and efficiently discharged as statutory duties with which private benefactions like the fever fund cannot be mixed up. The petitioners therefore believe that in these circumstances it is not only inexpedient, but that it has become impracticable, for them to carry out the objects for which the fund was created, and it cannot be anticipated that anything will occur to alter the position of matters.” The petitioners stated the various applications which had been made to them for the funds, and they prayed the Court “to authorise the petitioners to make payment to the directors for the time being of the Glasgow Royal Infirmary, and to the office-bearers for the time of the Dorcas Society in connection with the Belvedere, Knightswood, and Govan Fever and Smallpox Hospitals, of one-half share each of the said sum of £3476, 9s. 6d., together with any further interest that may accrue thereon, the said sums to be paid on the receipt of the secretary and treasurer for the time being of the said Royal Infirmary and Dorcas Society respectively, under deduction always of the expenses hitherto incurred or to be incurred by the petitioners in connection with said Fund, including the expenses of and incident to the present application, the sum to be paid to the directors of the said Infirmary to be applied by them towards the erection of a home for nurses in connection with said Infirmary, and the sum to be paid to the said Dorcas Society to be applied by it to the purposes of that society; or otherwise, to settle a scheme for the administration of the said fund, with the interest that has accrued and may yet accrue thereon.”

Answers were lodged for the Glasgow Royal Infirmary and the Dorcas Society in connection with the Royal Infirmary. They admitted the statement of facts contained in the petition, and further stated—“A society named the Dorcas Society in connection with the Royal Infirmary, which concurs in these answers, has been in existence for more than twenty years. The primary object of this society is to provide warm clothing and other necessaries for the convalescent poor who are about to leave the Infirmary. It was this society which in 1866 organised and held the bazaar mentioned in the petition. The funds raised at the different stalls, and apportioned to the Children's Hospital, have been duly paid or applied to that institution, which is now in operation. The remaining funds now in question were intended, as the respondents aver, for the benefit and increased efficiency of the Glasgow Royal Infirmary, the particular means then in view being the establishment of a Fever Convalescent Home in connection with that Infirmary, which then treated infectious fevers and other infectious diseases… The local authority has since assessed the city, and erected at Belvedere, near Glasgow, accommodation for fever patients at the public expense, and maintained it at an expense out of the rates of some £35,000 per annum, with ample grounds for convalescents. … At the present time, and in the present state of the Infirmary funds, the particular means of maintaining its usefulness and efficiency most urgently required appears to its managers to be the provision of a suitable nurses' home in close proximity to the wards. Such a home has long been contemplated, and would have been built before now but for the want of funds.” They accordingly moved the Court “to appoint the fund to be paid to the Glasgow Royal Infirmary, and pleaded that the money having been raised in connection with and for the benefit and further efficiency of the Glasgow Royal Infirmary by adding to its charitable arrangements a Fever Convalescent Home, and that particular purpose having through public legislation become no longer necessary, the money should now be applied to the next best means for promoting the further efficiency of the same Infirmary, viz., a nurses' home.

Answers were also lodged for the Magistrates and

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Council of Glasgow, as local authority of the burgh under the Public Health (Scotland) Act 1867, and for the Dorcas Society in connection with the Belvedere, Knightswood, and Govan Fever and Smallpox Hospitals. These respondents stated—“The compearers the Magistrates of Glasgow having, under the powers and obligations conferred and imposed upon them by the Public Health (Scotland) Act 1867, undertaken the treatment of infectious fever cases, they in 1870 purchased the estate of Belvedere for the purpose of erecting thereon a fever hospital. The City of Glasgow Fever Hospital, Belvedere, was finally finished, with 390 beds, having cost altogether the sum of £76,176.… A difficulty arose almost at once in the hospital management with reference to the clothing of convalescents on dismissal. Prior to 1871 the Dorcas Society in connection with the Royal Infirmary of Glasgow was in the habit of supplying fever convalescent patients with warm clothing, but that society having intimated that they would be unable to render any more assistance to convalescent fever patients after the expiry of the month of December in that year, a meeting of parties interested was held in the Corporation Galleries, Glasgow, at which, in order to meet the want thus indicated, the Dorcas Society in connection with the Glasgow Fever Hospital, whereof the office-bearers are compearers, was established. The chief object of the members of the society is to provide warm clothing for the fever convalescents on leaving the hospitals. They also occasionally assist convalescents to go to the country for a short time to effectuate complete recovery. In 1877 the burghs of Partick, Hillhead, and Maryhill erected on the estate of Scotstoun “The Joint-Burghs Hospital, Knightswood,” and in 1883 “The Govan Combination Fever Hospital” was erected by the burghs of Govan, Govanhill, and Kinning Park, and Govan (Landward) Parish. As these institution came into existence the Dorcas Society extended their operations so as to include the convalescent fever patients of these hospitals, and the name of the society was in 1886 changed to the Dorcas Society in connection with the Belvedere, Knightswood, and Govan Fever and Smallpox Hospitals.” Under these circumstances the compearers submitted that inasmuch as the funds were undoubtedly originally raised for the purpose of the Convalescent Fever Home, and inasmuch as the institutions above mentioned were the only institutions which answered that description, the fund should be made over for the benefit of the patients treated therein. The Magistrates of Glasgow, while they had no desire that the said funds should be applied in diminution of the rates, were of opinion that the same should be preserved and applied for the benefit of convalescent fever patients, and the compearers were willing that the fund should be either paid to the Corporation of Glasgow, to be held by them in trust for the compearers, the Dorcas Society, so long as the said society should continue to further the objects which it then set before it, or otherwise, if the Court should so think fit, that the fund should be paid directly to the office-bearers of the said society. But they submitted that in any view the whole fund should be paid to one or other of them, and not diverted, as it was proposed by the petitioners and by the compearers the directors of the Royal Infirmary, to objects which had no connection with the particular purpose for which the fund was originally raised.

Argued for the petitioners—They proposed to devote the funds to objects as nearly as possible similar to the original intentions. The Court in the exercise of its nobile officium could deal with the question— Clephane v. The Magistrates of Edinburgh, February 26, 1869, 7 Macph. (H.L.) 7; M'Andrew, May 19, 1868, 5 S.L.R. 504; Caird and Others, February 25, 1874, 1 R. 529.

Argued for the Royal Infirmary and others—The Court as a court of equity would apply the fund to the next best object failing that for which it was collected. It had been so held in England in the case of subscriptions— Attorney-General v. Stewart, 14 L.R., Eq. 17—[ Lord President—I do not think it likely that this Court will go so far in the exercise of its equitable jurisdiction as the Courts of England have under their doctrine]. The Dorcas Society of the Infirmary were originally intended to be the recipients of the fund— Glasgow Royal Infirmary, March 19, 1877, 14 R. 680; Mitchell v. Burness, June 19, 1878, 5 R. 954; Bayne v. Black, February 22, 1849, 6 Bell's App. 317; Burnet's Trustees, November 17, 1876, 4 R. 127; Grant v. M'Queen, May 13, 1877, 4 R. 734; M'Dougall, Petitioner, June 29, 1878, 5 R. 1014.

Argued for the Magistrates and Council of Glasgow and others—The petitioners did not ask for payment of the funds in order to relieve the rates, but for clothing patients whom they were not entitled to relieve out of the rates. The question was, what was the object of the charity they represented, and who were benefited by it? These were the convalescent fever patients of Glasgow. The funds were raised originally for such persons, and were not intended merely to increase the efficiency of the Infirmary.

At advising—