Scottish Court of Session Decisions

This was a petition presented by Captain William Smith, boxmaster and sole surviving member of the Society of Sailors of Dunbar, craving the Court to settle a scheme of administration of the funds of that Society.

The following facts were set forth in the petition:—From time immemorial there have existed in Scotch seaport towns funds formed by the sailors for the necessitous or aged of their own number, and known as the “Sailors' Box.” Such a box existed at Dunbar, and at the beginning of the 18th century had fallen under such bad management that the Provost, Bailies, and Magistrates intervened and assumed the control of it.

In 1730 certain shipmasters, for themselves and the other sailors of Dunbar, presented a petition to the Town Council praying them to grant a charter erecting the petitioners “into a society or body politick for the levying, managing, and applying of the said charity for the relief and behoof of poor sailors within this burgh, and other indigent seafaring persons.” The petition proceeded upon the narrative that “it is of great use in society for men of every craft and employment to erect funds of charity among themselves towards the relief and support of their own poor,” that a Sailors' Box had been kept in the burgh time out of mind, and that the funds by which it was supported were “aduty of eight pennys on the pound Scots out of all wages paid to masters, mates, and sailors, together with such dontations and free gifts as were made to the Box by persons charitably disposed.” In response to this petition the Town Council erected into a society or one body politic “all shipmasters residing in or sailing from the burgh, together with such others as have removed or shall remove their residence, and do or shall exercise their employment elsewhere, but nevertheless do or shall contribute and pay into the Poor's

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Box of Dunbar at least the poor money arising from their own wages.” They also granted to the Society or their boxmaster the full power of levying and collecting the duties and taxations used and wont, payable to the poor of their trade, commonly called the Sailors' Box, with power to lend out the Society's money upon good security, and to take the rights and securities therefor in favour of their boxmaster for the time and his successors in office for the use of the poor; and further, with power to the Society to settle at the general meetings “pensions and salarys for relief and support of poor sailors belonging to the said burgh, and their wives and children.” The Council also appointed that there should be a box for the use of the Society, and that the Society's writs and cash “over what is needful for occasional charitys throughout the year,” should be kept therein.

In 1806 the Society codified its bye-laws, and printed them after its charter. The code of bye-laws proceeded on the preamble that “we recognise our charter dated 15th September 1730 … and are determined to keep its original end and design always in view, which was the relief of our distressed fellow-creatures of like occupation as ourselves, who have joined or may join with us in this laudable institution.”

The following were among the bye-laws:—“Art. 3—No person shall be admitted a member who is above forty years of age, unless he has paid to the Box before, and then he must enter anew and pay up his full arrears, namely, ten shillings if a master, and six shillings if a sailor, for each year he has omitted payment, but this exception is not to be misconstrued by those who, finding old age coming on, take advantage of the Box and enter for the sake of a superannuated salary; therefore this door of admission, which is opened only for the sake of those who may have thought themselves aggrieved, will be shut at the end of twelve months from the date hereof; and at any rate, every person when he enters must be in perfect health, able and willing to work, and should it be found that any members hath entered above forty, or hath entered labouring under any disease, or shall by intemperance or irregularity bring trouble upon themselves, they shall forfeit all right they had to a pension. Note.—Anyone who formerly paid to the Box, and wishes to be readmitted a member as above, must procure, at his own expense and trouble, testimonial proof that he really did pay, and at what time he ceased to do so. Art. 5—Every master shall pay a guinea at his entry, and two shillings and sixpence per quarter afterwards, and every sailor shall pay half a guinea at entry, and one shilling and sixpence per quarter afterwards, and all hands shall pay, in sickness or in health, in pay, or out of pay, at home or abroad, and if absent must pay by proxy; and one year's absence, if the member had an opportunity to attend a meeting, or one year's neglect of payment, is deemed a total desertion of the Box, unless it can be proved that the proxy betrayed his trust in the absence of the member. Art. 9—A member under sickness or misfortune, on his intimating the same to the boxmaster, shall be entitled to receive, if a master, six shillings per week, and if a sailor four shillings per week, out of the funds of the Box, but if he continue half a year in distress he shall thereafter only receive the one half of these rates, and should be continue a whole year unwell, he shall then, as long as he continues so, receive, if a master thirty shillings, and if a sailor fifteen shillings half-yearly; but no member who has not been at least twelve months in the Box shall be entitled to receive anything out of it; and so soon as a member that hath been in distress is able to go to sea, or to pursue any other business so as he doth procure a livelihood, his pension from the Box shall cease. Art. 10—If a member turned of sixty years, whether a master or a sailor, intimates in writing to the managers that he intends to go no more to sea, he shall only pay half contribution, but should be go to sea again, he must resume paying the whole, and when a member through old age becomes unable to go to sea he shall receive from the funds of the Box thirty shillings if a master, and fifteen shillings if a sailor, half-yearly; but if he is so able as to pursue another business, and doth so, and procures thereby a livelihood, his pension from the Box shall cease. Art. 17—If a widow upon the Box marry again, she no longer gets anything from the Box, or if a member on the pension-list marry and continues on the list till he dies, his widow is not a widow with us, that were an imposition on the Box, but although he should marry while getting from the Box, if he afterwards gets completely better and goes to sea again, at least for twelve months, his widow, if he leaves any, shall be on the same footing with those of the other members. Art. 18—The entry-money shall be placed on a rising scale for seven years to come, to commence twelve months after the date hereof, that is to say, it shall be a guinea during the first year to a master, and half a guinea to a sailor, in the second year it shall be two guineas to a master, and one guinea to a sailor, and so onward, increasing each year by the addition of the first year's payment; consequently at the end of the seven years a master will pay seven guineas, and a sailor three guineas and one half; but it is reserved for the managers to modify this article if they shall think meet at a future period. Art. 20—Should a member remove his residence from this to any other port he is nevertheless considered as a member while he continues to pay his contribution regularly, and if he continues so doing till he die, his widow is entitled to a pension.”

Pecuniary assistance was sometimes given out of the funds of the Society to poor sailors within the burgh not being members of the Society, and to other indigent seafaring persons. In support of this statement the petitioner adduced the following extracts from the minute-books of the Society by way of illustration:—

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“ Minute dated 21 st November 1733.

Pensions to inhabitants, in all five pounds five shill. sterl.	£5	5	0
Transient charitys, two pounds twelve shillings and one penny	2	12	1

Minute dated 21 st November 1733.

The same day Captain Robert Macklish was allowed four shillings sterling paid by him to eight French sailors	£0	4	0
and they (the boxmasters) have paid out to transient sailors, which is approven of, being four Dysart men ship wreckt at Holy Island, four shillings	0	4	0

Minute dated 3rd August 1829.

It was suggested at this meeting that James Paterson, a sailor belonging to this town and well known to the members of this Society, was in great distress through sickness and want of the means of support, this meeting commiserating his distressed circumstance and knowing that there have been at various times donations made to individuals in distress, we direct the clerk to send him merely as a charitable gift one pound sterg.”

In the course of the present century the trade of Dunbar gradually decayed, and the membership of the Society decreased. The petitioner, who was now close upon eighty years of age, was appointed box-master in 1874, and since his appointment there had never been a quorum of officebearers. No minute existed subsequent to 28th November 1874. The funds of the society amounted to £2834, yielding an annual income of £85, whereof pensions to the petitioner and the surviving widows of three deceased members absorbed £61. The three last-mentioned annuitants were all over seventy years of age. The scheme of administration proposed by the petitioner was that the income of the fund should be distributed in annuities of £4 or £5 to old men, old women, and orphans, preference being given to seafaring persons and their wives and children.

Answers were lodged by the Lord Advocate, who admitted the facts stated by the petitioner, and averred that “as matters now stand the Society must come to an end with the lives of the petitioner and the said annuitants, in which event the whole property of the Society as bona vacantia will fall to Her Majesty as ultimus hæres. The Society is a friendly society, and is not a society for charitable purposes. It is, at all events, not a proper charity in such a sense as to entitled the Court to settle a scheme for the future administration of the Society or of its funds.”

The respondent accordingly submitted that the petition should be dismissed as incompetent.

Argued for the petitioner—The Sailors' Box was a charitable institution, not a friendly society. The very word “charity” was employed in its charter, which contemplated the giving of assistance to other than members of the Society. Such assistance had been given. Charity was nothing more than relief of poverty— Baird's Trustees v. Lord Advocate, June 1, 1888, 15 R. 682, per L. P. Inglis, 688. It was the marked presence of the charitable element here which distinguished the present case from that of Mitchell, &c. v. Burness, June 19, 1878, 5 R. 954 (where see opinions of L.P. Inglis, Lord Deas, and Lord Shand). Kirk-Session of Prestonpans v. School Board of Prestonpans, November 28, 1891, 19 R. 193, also referred to. The charitable element was much more noticeable in the Society than the contractual. No member was entitled to relief merely because he was a member. He must be in want, in sickness, or over a certain age— Banty v. Mackey, L.R. (1896), 2 Ch. 727.

The respondent argued—This was not a charity. It was a friendly society embodying a contractual arrangement between certain sailors in Dunbar. Art. 3 of the bye-laws made no provision for sailors outside the Box, and indeed made subscription to the Box a condition of participating in its benefits. The Society was in no way different in principle from a sickness or accident assurance society— Bain v. Black and Others, February 22, 1849, 6 Bell's App. 317, per L.C. Cottenham, 329; Cunnack v. Edwards, L.R. (1896), 2 Ch. 679; and Mitchell, ut sup., referred to.