Scottish Court of Session Decisions

The Friendly Societies Act 1896 provides as follows—section 56 (1)—“A member of a registered society (other than a benevolent society or working-men's club) or branch thereof, not being under the age of sixteen years, may, by writing under his hand, delivered at, or sent to, the registered office of the society or branch, or made in a book

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kept at that office, nominate a person to whom any sum of money payable by the society or branch on the death of that member, not exceeding one hundred pounds, shall be paid at his decease.”

This was an action of multiplepoinding raised in the Sheriff Court at Glasgow to determine the right to a sum of £36, 8s. due under a contract of insurance between the late Mrs Mary French and the Liverpool Victoria Legal Friendly Society. The sum was claimed by James Morton on the one hand, and James French and others, the next-of-kin of the late Mrs Mary French, upon the other. The case raised the question, inter alia, whether a nomination ( infra) in favour of James Morton which bore to have been made by Mrs Mary French was valid.

The next-of-kin stated, inter alia, the following plea—“(1) The nomination under which the said James Morton claims, not being a writing under the hand of the said Mary French, is of no effect.”

The nomination in favour of Morton was—“I, Mary French, of 57 Jamieson Street, Govanhill, Town of Glasgow, not being under the age of sixteen years, hereby revoke all previous nominations, if any, made by me, and do hereby nominate James Morton, of 32 Carfin Street, Govanhill, Town of Glasgow, to receive the money payable on my death on insurance dated 25/6/04 (5316782) (as per ordinary branch policy) in accordance with the table of assurance and rules of the above-named society in use at the date of such assurance and any alterations or amendments of the said rules.

“Signed by me in presence of two disinterested witnesses this twenty-first day of June One thousand nine hundred and five,

her

Signature Mary x French

mark

Widow

Friend

(In case of a female, state if single, married, or a widow) (The person nominating must here state what relation, if any, he or she is to the person nominated)

First Witness William Shearer, Address 9 Kelvingrove Street, Glasgow. Second witness (who must be the agent or collector) Geo. Evans, Address 111 Allison Street, Glasgow.

“I hereby certify that the signatures of the witnesses and member are genuine, and that they are in the handwriting of the persons named, and that I was present when they attached their signatures, and that I signed my name at the same time as witness.

Signature (of agent or collector) Geo. Evans.

District

Glasgow.

Agent Stephen H. Payne,

143 West Regent St.

Collector's name Geo. Evans,

Collector's address 111 Allison St., Glasgow.”

The Sheriff-Substitute ( Davidson) held that the nomination was good, and ranked and preferred Morton to the fund in medio.

On appeal the Sheriff ( Guthrie) (without recalling the Sheriff-Substitute's finding as to the nomination) upon another ground ranked and preferred the next-of-kin.

Morton appealed to the Court of Session, and argued—The nomination was good. The document was not a will or an ordinary inter vivos deed falling under the ordinary rules governing the authentication of deeds. It was a privileged document of the nature of an assignation valid for the special purposes of the Friendly Societies Act, one of the main objects of which was the abolition of unnecessary legal formalities, of which the subscription, &c., of a notary which was here desiderated was a typical example. It was a “writing under her hand,” being authenticated by her hand in the only way her hand could authenticate, viz., by mark, and that the mark was hers could not be disputed, because two witnesses testified by their signatures to the fact that it had been adhibited by her. The Insurance Company were apparently satisfied—a matter of the utmost importance—for the nomination was nothing more nor less than a transfer, and it had been decided in Marino's case, L.R., 1867, 2 Ch. App. 596, that the custom of a company must be taken into account in determining what was necessary in the matter of its transfers. In England the nomination would have been good, the mark being sufficient— Baker v. William Dening and Others, 8 Adol. & Ellis, 94; Addison on Contracts (10th ed.), p. 37—and it was very undesirable that in a matter such as this the law of the two countries should differ.

Argued for the respondents—The nomination was bad. The document was either a testamentary deed, or a deed inter vivos, an assignation. In England such a deed had been held to be testamentary— Baxter [1903] P 12. All testamentary deeds and all deeds inter vivos, except the limited class of documents in re mercatoria (to which this could in no view belong—Bell's Com. i, 342), required when the party could not write the intervention of a notary—Bell's Lectures on Conveyancing, vol. i, p. 49; Ersk., iii, 2, 7, and 8; Stirling Stuart v. Stirling Crawford's Trustees and Executrix, February 6, 1885, 12 R. 610, 22 S.L.R. 391; Crosbie v. Wilson, June 2, 1863, 1 Macph. 870; Graham v. M'Leod, November 30, 1848, 11 D. 173; Conveyancing Act 1874, sec. 41. In any case in which the ordinary law as to signature was relaxed it was expressly stated in the statute, e.g., under the Marriage Notice (Scotland) Act 1878, sec. 16, subscription might be by mark. There was no such express statement in the Friendly Societies Act.