Scottish Court of Session Decisions

This was an appeal from a judgment pronounced by the Sheriff of Renfrewshire (Fraser). The pursuer raised an action against the Greenock Lodge of the United Operative Masons Association of Scotland, concluding for a sum of £80, “being the amount of the provision to members disabled for life by any real accident received while following their employment as a mason, according to the rules and regulations and laws of the said United Operative Masons Association of Scotland.”

The Sheriff-Substitute ( Tennent) pronounced the following interlocutor:—

“ Greenock, 12 th July 1872.—The Sheriff-Substitute having heard parties' procurators on the relevancy of this cause, in respect that it is stated at the bar that the Association is in course of considering and disposing of the pursuer's claim, and of bringing it before the branches of the Association, who it is stated are, in terms of Law 8, class IV., the parties who are to vote on the claim, and that this will be done in four weeks after the end of July current, continues the cause till the last court day in September.

Note.—By the terms of the rules of the Association of which the pursuer is a member, the Association, according to the rules and procedure laid down, are to determine upon the pursuer's claim. It is stated at the bar that they are at present exercising that power. At all events they do not seem to have over-stepped the time given them to do so. The Sheriff-Substitute will certainly not take that power out of their hands, more particularly in the face of provisions as to voting upon the claim which may exclude the interference of any civil Court. After the lapse of the time to which this case is continued the case may be resumed for consideration on the relevancy, according to the state of matters and what may have been done before that time.”

The pursuer appealed to the Sheriff, who pronounced the following interlocutor:—

Edinburgh, 9 th December 1872.—The Sheriff having considered this process, with the debate thereon, dismisses the action as incompetent; finds no expenses due to or by either party, and decerns.

“Note.—It is with regret that the Sheriff finds himself obliged to pronounce the foregoing interlocutor, because he thinks the pursuer is entitled to the money he asks, and that the Masons Association are bound in common honesty to pay him. To refuse payment of a just demand like this will do far more damage to the Association by shaking confidence in its management, than the Association would lose though they paid down the money. At the same time, after the judgment of the Second Division of the Court in Manners v. Fairholme, 6th March, 1872, 10 Macph. p. 520, no other course is open to a Court of law than to dismiss this action. The pursuer is a member of a voluntary club, which is managed by a central committee, and locally by lodges, of which there are 83 in Scotland. Each member is entitled in case of accidents to a certain provision under class IV. of the Society's rules and regulations. It is there said that ‘members disabled for life by any real accident received while following their employment as a mason, may lay an application before the Society according to Law VII. of this class, and if a majority of those voting on the application shall consider him entitled, he Shall receive the sum of £80 sterling.’ Law VII. enacts that three months must elapse from the time of accident before any member can make such an application, and after six months it is incompetent. Then comes Law VIII., which is as follows,—‘When any application is made, the lodge applied to shall appoint a doctor and delegate to examine the applicant, and if satisfied that he is disabled for life from following his trade, to send such information to the central committee, who, if not satisfied, may authorise a lodge, or appoint a delegate, to investigate the case,—the delegate to send a full report to the C.C., who shall submit the same to the Society. A majority of those voting on the application shall be held binding, without power of appeal to any court of civil law or equity; but should any dispute arise between a member and the Society, the same shall be submitted to arbitration, as in Law 14, class III., each party to pay one-half of the expenses, the C.C. to pay over the amount within one month after the decision of the Society is known. Any delegate sending a false statement shall pay a fine of £1.’

“Now the pursuer duly complied with all these regulations. He sent in his application in time to his lodge, and the lodge forwarded it to the central committee. He was examined by doctors, and by

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delegates from the lodge, and from the central committee, and then the central committee put the matter through what are called the ‘Fortnightly Returns,’ and the vote was taken as to whether or not the application should be refused or granted. This vote is that, not of the lodge to which the applicant belongs, nor even of the central committee, but of all the lodges in Scotland who chose to vote. Of these there are, as already stated, 83; and of that number 39 only have voted, and the pursuer's application was refused by a majority of votes.

Complaint was made to the Sheriff that the lodges who voted against the application did so under error, that they were misled by a misprint of a medical certificate, for which the central committee was responsible. The Sheriff cannot give effect to these complaints. He has no power to ordain the lodges in Scotland to take another vote, and in order to make his claim relevant the pursuer must aver that the money was voted to him by a majority of those who did vote. It is said that the Greenock Lodge, since this action was in Court, have sympathised with the pursuer, and have come to the conclusion that he is entitled to his money. This may be quite true; but unfortunately the Greenock Lodge is not the society, and has no power to vote away money. The very same specialty existed in the case of Manners v. Fairholme; but it was found practically to be of no avail in supporting the claim. The Sheriff has also followed that case in finding neither party entitled to expenses.”

The pursuer appealed to the Court of Session.

Argued for him—The Society, in dealing with the pursuer's application, have been acting under a new set of rules, which differ in certain important particulars from the old ones. The new rules, however, were only passed two days before the accident occurred, and a copy was not sent to the pursuer as it ought to have been; and, in any event, the new rules were not finally passed, being still subject to amendment.

Argued for defenders—(1) This is an attempt to enforce a contract which is illegal, being in restraint of trade—(This argument was given up, there being no averment in support of it on record); (2) The action is brought against the wrong parties, viz., the Greenock Lodge, instead of against the Central Committee; (3) a majority of the Society are the only judges.

At advising—