Scottish Court of Session Decisions

The Ancient Order of Foresters is a friendly society registered under the Friendly Societies Act. It has branches throughout the United Kingdom, and for the government of these branches it has a system of courts (1) the High Court of the Order, (2) the District Courts and (3) the Branch Courts.

Law la, section 3, of the General Laws of the Order provides that “the funds and property of each branch (court or district) of the Order, whether acquired before or after the same was registered as a branch, shall vest in the trustees for the time being of such branch for the sole use and benefit of the members of such branch, and persons claiming through such members according to the rules of the said branch; and the whole of the funds and property of each branch shall be under the exclusive control of the members and trustees thereof, subject only to the General Laws of the Order with respect to the investment of such funds and their application to the objects of the branch and the objects of the district Branch with which the Court may be connected, and also the objects of the Order.” Law 88, section 2, provides that the functions of the District Arbitration Committee shall be to hear and decide inter alia any charge made by an officer of the district against any officer of a Court in the district for violation of the rules of the Court or District or General Laws, when such violation infers penalties of suspension, expulsion, or a fine exceeding £1, 1s.

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Section 4 of the same Law provides that the decision of the Committee shall be binding until reversed or altered upon an appeal to the Final Arbitration Committee. Under Law 90, section 3, appeals require to be taken within three months of the decision appealed against.

In 1897 John Stevenson, the secretary of Court “Captain Boyd,” the Larkhall Branch of the Order, obtained relief from his branch on the ground of sickness. It was reported to the Glasgow District Court that he had obtained this relief on insufficient grounds. Upon a complaint being presented in proper form against Stevenson for this and other irregularities, and after evidence had been led the District Arbitration Committee on 27th July 1898 passed a resolution expelling him from the Order, calling upon him to hand over all books, papers, and properties belonging to the Order to the district secretary and finding him liable in the expenses of the arbitration meeting amounting to £1, 13s. 6d.

The decision of the Arbitration Committee was intimated to Stevenson, and he on 30th July 1898 wrote the secretary of the Glasgow District acknowledging the intimation and asking time to pay the expenses awarded against him. He never appealed against the decision.

Thereafter however he refused to deliver up the books in terms of the decision, and the Glasgow District raised an action against him in the Sheriff Court at Hamilton in which they prayed the Court “to interpone the authority of the Court, to the award of the Arbitration Committee of the Order, dated 27th July 1898, and to ordain the said John Stevenson, defender, to hand over and deliver the following books and papers, viz., Register of Members Contribution Book, Sick and Funeral Fund Book, Subscribing Benefit Fund Book, Treasurer's Cash Book of the Court ‘Captain Boyd’ Branch of the Glasgow District of the Order and belonging to the Order in his possession, to the District Secretary at the registered office of the Order, 2 South Apsley Place, Glasgow.”

This action was raised in terms of section 68 of the Friendly Societies Act 1896 (59 and 60 Vict. cap 25), which provides that every dispute between a member of a registered society and the society or branch 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 county court,” which in terms of section 102 of the Act means in Scotland the Sheriff Court of the county.”

The defender averred that on 4th August 1898 he handed over the books in his possession to Court “Captain Boyd” and pleaded, interalia–”(l)The pursuers have no title to sue. (2) All parties are not called.”

On 10th November 1898 the Sheriff-Substitute ( Davidson) sustained the first plea-in-law for the defenders.

Note.—… “After hearing the charge the Arbitration Committee expelled the defender and found him liable in costs, all of which procedure was, I think, quite within their right; but when they further ordered him to deliver to their secretary all the property of the Order in his possession, they were on totally different ground.… Of what Order? These (the books, &c.) are not the property of the general body of Foresters. Clause 1A, section 3, of the Constitution of the Order provides that ‘the funds and property of each branch (court or district) of the Order shall vest in the trustees of said branch, and the whole funds and property of each branch shall be under the exclusive control of the members and trustees [thereof, subject only to the General Laws of the Order with respect to the investment of such funds and their application.’ The pursuers, therefore, have no right of property over the effects of which they ask delivery. They have certain rights in regard to the books of the Court, which are defined in clause 41, section 2; but there is nothing in that section which gives them any right to demand delivery of them, unless perhaps from a contumacious Court, who refused their examiners access for the purpose of checking the audits.”

The pursuers appealed to the Sheriff ( Berry), who on 4th February 1899 adhered.

Note,—… “As regards the books and property, delivery of which is sought for in the petition, it appears from the General Law IA, section 3, that these belong to the Larkhall Branch not to the Glasgow District, and that the latter are not entitled to claim delivery of them from the defender. It is from the branch they must be claimed, if at all.”

The pursuers appealed, and argued—The defender did now dispute the jurisdiction of the District Arbitration Committee. The defender had not appealed to the Superior Court of the Order against the decision. That being so, the pursuers were entitled to enforce their decree in the civil courts in terms of the Friendly Societies Act 1896, and the Sheriffs had no power to consider the terms of the decision of the committee. Rombach v. M'Cormack, Dec. 1, 1896, 4 S.L.T., case 264. The question, to whom did the books, &c., legally belong? could not be decided in the present action, and the defender if he had parted with the books had done so after the decision of the committee had been intimated to him, and was not entitled to plead that the books were now in the hands of another.

Argued for defender—The decision of the Sheriffs was right. The books, in terms of the General Laws of the Order, belonged to the branch and not to the district. The latter had therefore no title to sue. In any event, the books being now in the hands of the secretary of the branch, the branch must be made a party to the case. The books were not now in the defender's possession, and the Court would not issue a decree against the defender ad factum præstandum to deliver up books which were not in his possession.