June 19, 1913. Henderson's I am of opinion that the assessment is wrong, and that the appeal should be allowed. agree LORD KINNEAR.-I am entirely of the same opinion, and I with your Lordship that for the purpose of this case the word "deed" is a word of ordinary language, because it is not in our system a term of art. I agree also that it is unnecessary to attempt any exact definition of what the word "deed" means; but I take the definition which was suggested in the ingenious argument for the Inland Revenue, in which it was said that a deed was any formal instrument which creates a legal relation. Now this writing is certainly formal; indeed it is unnecessarily formal and cumbrous for the purpose for which it is made; but it does not, by itself, create any legal relation whatever. Taken by itself it is nothing, and it has no effect or meaning. Its whole force depends upon its reference to the foregoing trust-disposition and settlement, which is undoubtedly a deed in the ordinary sense in which we use the word. It is an acceptance of the office conferred by the trust-disposition and settlement. It is a mere note of acceptance which might have been made in any form, or which might have been dispensed with altogether, if the persons named as trustees were willing to act, because their attendance at meetings and a note to the effect that they had been present was quite enough. It is true, of course, that the trust-disposition does not, in itself, constitute the particular persons as trustees until they do accept; but so far as anything like a deed is concerned, it is that instrument and that instrument alone which creates the trust. The fact of acceptance may be proved by writing or by parole, and, if by writing, by any informal note under the hand of a trustee or by any note made by the agent of the trust at a meeting of the trustees. I therefore agree with your Lordship that the assessment here was wrong, and that the appeal should be allowed. LORD MACKENZIE concurred. THE COURT sustained the appeal, found that the instrument in question was not chargeable with any stamp-duty, and ordered the Commissioners to repay to the appellants the sum of 10s. MORTON, SMART, MACDONALD, & PROSSER, W.S.-SIR PHILIP J. HAMILTON ARTHUR M'GOWAN, Pursuer (Appellant).—Graham Stewart, K.C.— No. 138. THE CITY OF GLASGOW FRIENDLY SOCIETY AND OTHERS, Defenders June 19, 1913. (Respondents).-Moncrieff, K.C.-Lippe. ALEXANDER BOAG, Defender (Respondent).-Gilchrist. M'Gowan v. City of Glasgow Friendly Society-Jurisdiction-Exclusion of jurisdiction-Rule of friendly Friendly society for settlement by arbitration of disputes between society and members Society. --Election of member to board of management contrary to rule-Declarator that election void-Competence of action-Whether rule permissive in form is in effect imperative-Friendly Societies Act, 1896 (59 and 60 Vict. cap. 25), secs. 9 (3), 68 (1), First Schedule (8). In an action by a member of a friendly society against the society for declarator that the appointment of another member to the board of management was void in respect that under the rules of the society he was ineligible for election, it was in defence denied that he was ineligible, and it was also pleaded that the action was excluded by a rule of the society that "all disputes between the society and any member as such .. may be determined by arbitration." The rule was passed under the Friendly Societies Act, 1896, which provides that every dispute between a member and the society shall be decided in manner directed by the rules of the society "without appeal, and shall not be removable into any Court of law. " Held that the action was competent in respect that the jurisdiction of the Court was not excluded in a case where the averment was that the society had acted in violation of its rules and constitution. Opinion reserved, per Lord Salvesen, on the question whether the rule of the society as to the settlement of disputes was in effect imperative though in form merely permissive. Process-Reduction-Necessity for reduction-Friendly Society-Election of member to board of management—Declarator that election void-Necessity for reduction of minutes of meeting at which election made. The rules of a friendly society provided that members should be represented by delegates elected by themselves, and that minutes of the district meetings at which the election took place should be kept and transmitted to the secretary of the society. It was further provided that the delegates should elect from among themselves a board of management. Held that an action for declarator that the election of a member to the board of management was void, in respect that he was ineligible to act as a delegate, could competently be brought without reduction of the minutes of the meeting at which he was appointed a delegate, or of those of the meeting at which he was elected to the board. Lanarkshire. ON 4th March 1912 Arthur M'Gowan, Kilmarnock, brought an action 2D DIVISION. in the Sheriff Court of Lanarkshire at Glasgow against (1) the City Sheriff of of Glasgow Friendly Society, registered under the Friendly Societies Acts, (2) Robert Pirie, M.D., and others, the trustees of the Society, and (3) Alexander Boag, Uddingston. The claim of the pursuer was:-"(1) For declarator (a) that the pretended election of the defender Alexander Boag as a member of the board of management of the City of Glasgow Friendly Society at the annual general meeting of delegates of said Society, held on adjournment on 13th December 1911, was null and void, in respect M'Gowan v. City of Glasgow Friendly Society. June 19, 1913. that under the rules of the Society he was ineligible as a delegate thereof, and therefore as a member of the said board of management, by reason of his being more than ten weeks in arrears with his subscriptions as a member of the said Society, both at the time of his pretended election as a delegate and also at the time of his pretended election as a member of the board of management of the said Society; and (b) that the pursuer was duly and legally elected a member of the said board of management at the said annual general meeting, in respect that he, as a candidate for election as a member of the said board of management, received the largest number of votes at said annual general meeting after the defender the said Alexander Boag, who was ineligible as a delegate and member of the said board of management as aforesaid; and (2) for interdict against the said The City of Glasgow Friendly Society and the said trustees thereof summoning the said Alexander Boag to meetings of the said board of management as a member thereof, and paying him any remuneration as a member thereof, and also against the said Alexander Boag acting as a member of said board of management." The pursuer, after averring that he was a member of the Society, continued :-(Cond. 4) "At the meeting for the election of delegates,* held in the Motherwell district in March/April 1909, the * The rules of the Society provided :-" IV. (1) To enable members to arrange for the management of the Society they shall be represented by delegates, and annual general meetings and special meetings of the Society for that purpose shall consist of meetings of delegates elected as hereinafter provided. (a) Each district shall be represented by one delegate for every thousand members. The Friendly Societies Act, 1896 (59 and 60 Vict. cap. 25), enacts :— Sec. 9. "(3) The rules of the society shall contain provisions in respect of the several matters mentioned in the First Schedule to this Act. Sec. 68. "(1) Every dispute between "(a) A member or person claiming through a member or under the rules of a registered society or branch, and the society or branch defender the said Alexander Boag was present and was a candi-June 19, 1913. date for the office of delegate, and after a vote was declared elected M'Gowan v. a delegate." (Cond. 5) "At the date of said meeting and of his City of pretended election as a delegate the said Alexander Boag was over Glasgow fourteen weeks in arrears with his subscriptions, and was therefore not Friendly Society. entitled to be present at the meeting, and was not eligible to act as a delegate. This was apparent from the books of the Society, and was known, or should have been known, to the said Society. . The said Alexander Boag's pretended election as a delegate was therefore null and void. (Cond. 6) "At the annual general meeting of the Society which was called for June 1911, and held, after adjournment, on 13th December 1911, the defender the said Alexander Boag and the pursuer were candidates for election as members of the board of management, and the said Alexander Boag was declared elected. The pursuer was declared not elected. The said pretended election of the said Alexander Boag as a member of the said board of management was in breach of the rules, incompetent, and null and void in respect that he was not then eligible to act as a delegate, and was therefore not a competent candidate for election as a member of the said board of management by reason of his being more than ten weeks in arrears with his subscriptions as a member of the said Society at the date of his pretended election as a delegate. He was also more than ten weeks in arrears at the date of his pretended election as a member of the said board of management. (Cond. 7) "At the said adjourned annual meeting of the Society, held on 13th December 1911 the pursuer received the largest number of votes as a candidate for election as a member of said board of management to fill said vacancy therein immediately after the defender the said Alexander Boag, and was eligible for election as a member thereof. He was accordingly then duly and legally elected to the exclusion of the said Alexander Boag. Defences were lodged for the Society and for Alexander Boag, in which it was denied that the latter was in arrears with his subscriptions either at the date when he was appointed delegate or at the date when he was elected to the board of management. They also averred that Boag had been re-elected as a delegate at a meeting held on 25th April 1912. The pursuer pleaded, inter alia ;-(2) The defender the said Alexander Boag not being eligible to act as a delegate of the said Society, in respect that at the date of his pretended election as a delegate he was more than ten weeks in arrear with his subscriptions as a member of the said Society, his pretended election as a member of the board of management of said Society, as condescended on, was null and void, and decree of declarator and interdict should be granted as craved with expenses. or an officer thereof shall be decided in manner directed by the rules of the society or branch, and the decision so given shall be binding and conclusive on all parties without appeal, and shall not be removable into any Court of law or restrainable by injunction; and application for the enforcement thereof may be made to the [Sheriff]. First Schedule: "Matters to be provided for by the rules of societies registered under this Act. "8. The manner in which disputes shall be settled." The defenders pleaded, inter alia;-(1) No jurisdiction. (2) No title. (3) No interest. (4) The action is incompetent. (5) The action is irrelevant. On 13th June 1912 the Sheriff-substitute (Boyd) repelled the first five pleas for the defenders, and allowed a proof. The defenders appealed to the Sheriff (Millar) who, on 20th July 1912, recalled the interlocutor appealed against, sustained the fourth plea in law for the defenders, and dismissed the action. The pursuer appealed to the Court of Session, and the case was heard before the Second Division (without Lord Guthrie) on 18th and 19th June 1913. Argued for the appellant;-The action was competent, and the pursuer was entitled to a proof of his averments. The pursuer did not now insist on the conclusion for declarator that he had been elected to the board of management. There was, therefore, no operative conclusion directed against the Society, and accordingly the rule in the case of Gall1 had no application. The action was not excluded by the rule that disputes between the Society and a member "may" be determined by arbitration. In the first place the rule was permissive, and not imperative as in Melrose v. Trustees for Edinburgh Savings Bank.2 "May" was only interpreted as "must" in Acts of Parliament where powers were conferred on public authorities to be exercised for the public benefit, as in the case of Gray v. St Andrews and Cupar District Committees of Fifeshire County Council. In the second place the rule did not apply to this case. It applied only to disputes about money matters, as appeared from the references to "the Small-Debt Court" and "the amount in dispute." Nor was this a dispute between the Society and a member "as such"; because the pursuer was not acting merely in his individual interest, but was vindicating the rules in the interest of all the members. But even if the rule was imperative and applicable to all disputes between the Society and a member, it could not oust the jurisdiction of the Court where the dispute arose with reference to an alleged infringement of the constitution committed by the Society. If the Society was in breach of the rules, it could not appeal to the rules to determine the manner in which the dispute should be settled. Unless the pursuer could come to the Court, he had no remedy, for the arbitrator could not make his award effective by interdict. It was not necessary to conclude for reduction of the minutes of the meetings at which Boag was appointed a delegate and a manager. It was Boag's election as a manager at a meeting of delegates which the pursuer sought to have declared void; he had no concern with what passed at the meeting of members at which he was elected a delegate, and there was no provision in the rules regarding the minutes of delegates' meetings as there was in the case of members' meetings. In any event the minutes were merely records of what passed at the meetings, and had nothing to do with the question of eligibility, which was the real question in dispute. The constitution of this Society had already been under the consideration of the Court 1 Gall v. Loyal Glenbogie Lodge of the Oddfellows Friendly Society, (1900) 2 F. 1187. 4 2 (1897) 24 R. 483. 3 1911 S. C. 266. Symington's Executor v. Galashiels Co-operative Store Co., Limited, (1894) 21 R. 371. |