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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Boyes v Incorporation of Tailors of Canongate [1834] CA 13_1 (12 November 1834) URL: http://www.bailii.org/scot/cases/ScotCS/1834/013SS0001.html Cite as: [1834] CA 13_1 |
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Subject_Corporation—Society—Insurance—Penalty.—
1. If a contributor to the charitable fund of an incorporation, be in such distress as to be entitled, according to the regulations, to relief from the fund, he does not incur a forfeiture of interest in the fund, though he should fail to pay up his quarterly contributions for two years together, and the incorporation attempt to enforce against him a regulation that forfeiture shall be the consequence of such failure to pay. 2. Circumstances in which this rule was applied, though the incorporation had reserved power to themselves to judge whether the distress of any applicant entitled him to relief; and no application, on the ground of distress, had been made; and the payment of all arrears of contribution was tendered by the party as a condition of being reponed against the resolution which had declared his interest to be forfeited.
The Incorporation of Tailors of Canongate have a Widows' Scheme. for the benefit of their members. Andrew Boyes, in 1810, became a member of the Incorporation, and a contributor to the Widows' Scheme. The by-laws of the Incorporation required a payment of £10, as entry-money, besides a payment of £15 to the Widows' Scheme. It was farther enacted by the following regulations, that “each member shall pay the sum of one shilling, quarterly, to the funds of the Incorporation, and if he suffer this payment to be two years in arrear, he shall forfeit, on the part of himself, his wife, and children, all interest in the funds of the Incorporation; his name shall be struck off the roll, and he shall no longer be considered a member.” “Each member shall pay
_________________ Footnote _________________ * This case was decided on 4th July, 1834, but omitted under its proper date.
Boyes paid his entry-money, and also his quarterly contributions till November, 1827. He then left Edinburgh, and, having failed to make any farther payments, the Incorporation, on 4th February, 1830, minuted a declaration in their records, that he had forfeited all interest in their funds, for himself, his wife, and children. Boyes afterwards raised an action against the Incorporation, to have it found and declared, either, that, on paying up all arrears and interest, he was entitled to be admitted to the benefit of the whole privileges of a member of the Incorporation and Widows' Scheme; or otherwise, that he was entitled to repayment of the whole sums advanced by him, with interest. In support of this, he alleged, that in or about August, 1829, he had directed a friend, named Dalgliesh, to uplift and apply a sum of his, in payment of his arrears to the Incorporation; that no demand for arrears was made on him by the Incorporation, and it was only in February, 1830, that he learnt from Dalgliesh the arrears were unpaid; and that he immediately sent and offered full payment of arrears and interest to the Incorporation, on condition of their rescinding the resolution which they had lately passed for forfeiting him, but this was refused. He averred in his condescendence (under articles 10, 11, and 12,) as follows:—“That at the time the arrears of quarterly rates were incurred by him, he was absent from town, and labouring under bad health to such a degree, that he was unable to carn almost any thing for the support of himself and family, and was regularly receiving aid from different benefit societies of which he was a member.” “That by Article 4 of the Regulations of the Incorporation,” &c., it is provided, “that each superannuated member, and each member's widow, shall receive the sum of £1, 10s. sterling yearly, from the funds, the superannuacy of the member to be judged of by the Incorporation;” and by Article 13, “that, in addition to the provision above stated for widows, if any member be disabled from working by distress, he shall be allowed £6 per annum, including the £l, 10s. from the Incorporation; and the members to be the sole judges of his claim, as mentioned in Article 4.”—“That in virtue of the rules just quoted, the pursuer would have been entitled to the foresaid allowance of £6 per annum from the funds of the Incorporation, had he applied for it; but he did not do so, expecting that his health would get better.”
He therefore pleaded, that, if he proved he was in such distress and bad health, as to have been entitled to draw an annual payment out of the funds, he could not incur a forfeiture from merely failing to contribute to
_________________ Footnote _________________
* The Widows' Scheme.
them; that, as he had onerously acquired his right to relief, in terms of the regulations, the Incorporation could not have capriciously withheld it, if duly applied for; and that the failure to make application could not expose him to forfeiture, if such distress actually existed as would have supported the application if made. He was therefore entitled to be reponed against the resolution of the Incorporation, if he proved the existence of bad health and destitution as alleged.
The defenders denied the pursuer's allegations; but separately pleaded, that they had reserved absolute and unqualified power to judge whether the bad health and distress of any applicant were such as to entitle him to relief, and the whole averments of the pursuer were therefore irrelevant, because even a proof of bad health and destitution would not show that he was ever relieved from his quarterly payments; that the allowances from the funds had been computed in reliance on this reserved power, and would be deranged if it were not to receive full effect; and that, as the pursuer had made no application at the time when his alleged distress existed, and when alone the defenders could have thoroughly investigated the subject, they could not now be forced into any enquiry.
The Lord Ordinary “sustained the relevancy of the 10th article of the condescendence, as explained by the 11th and 12th articles; and as the pursuer's averments in these articles are denied by the defenders, appointed the case to be called, that parties may be heard on the mode of ascertaining their truth.” *
The Incorporation reclaimed; but the Court adhered.
_________________ Footnote _________________
* “ Note.—If the pursuer could establish to the satisfaction of the defenders, that he employed Dalgliesh to pay the quarterly rates during his absence, and if, immediately on learning that this had not been done, he tendered payment of the arrears, only a few months having then elapsed from the period of the forfeiture of his right, it would seem rather a harsh enforcement of the rules of the society to reject Ms claim for re-admission. But, considering that this is substantially a case of insurance, and that the party, in such a case, is bound, at his own risk, to see that the periodical rates are duly paid, the Lord Ordinary does not think himself authorized to dispense, from more consideration of hardship, with the strict rule of the Society. On the other hand, as illness, incapacitating for work, was one of the contingencies, entitling a member of the Society to positive relief from the funds, a fortiori, it must afford a ground for suspending the periodical contributions; and, therefore, the Lord Ordinary has no doubt that the 10th article of the condescendence, as explained by the 11th and 12th, is relevant, and must be admitted to proof.”
Solicitors: R. Urquhart, S.S.C.— J. Macandrew, S.S.C.—Agents.
