Scottish Court of Session Decisions

The Lord President said—The question raised is whether a person, in order to obtain the privilege claimed by the pursuer, must be not only a son-in law of a member, but also the husband of a member's daughter. The following are the rules as to the entry of members founded on by the pursuer:—“1. Any individual having, neither by birth nor marriage, any claim or title to be admitted a member of the fraternity and incorporation shall be admitted a member on payment of £30 sterling. 2. Sons and sons-in-law of guild brethren, excepting as hereinafter mentioned, shall be admitted members of the fraternity and incorporation as follows, viz.:—If not exceeding twenty-one years of age, by payment of the sum of £1, 1s.; and if exceeding that age, according to the scale or table of fees hereunto annexed, which is hereby declared to form part of these rules, in the same manner as if it were herein engrossed. 3. Where an individual has been admitted a member of the fraternity, in virtue of a right acquired through marriage with the daughter of a guildbrother, his children by a previous marriage shall not be admitted members of the fraternity and incorporation other wise than is specified in the first article thereof.” The claim of the pursuer is founded on the expression “sons and sons-in-law” in rule second. A question has been raised whether these rules were or were not intended to extinguish and ignore the previous unwritten law of the guildry. If they were, it is said the words must be read in their popular sense, and not as qualified by previous usage. On the other hand, it was contended that these rules only put into words what was the previous law of the fraternity. And it is said that previous to 1852 the usage was to admit sons-in-law, but only during the lifetime of their wives. I think that, in regard to the condition of things before 1852, when there were no rules, the usage is the thing to be looked to. It is said, on the one hand, that there is no instance of any son-in-law being admitted after his wife's death. On the other hand, it is said there is no instance of anyone being rejected, and therefore there is no usage on the subject. There is a case in 1791 of a Mr Henderson, who was admitted after his wife's death; but that was an exceptional case. He had applied during his wife's life, and the consideration of his application had been delayed through the fault of the Dean of Guild, and he was therefore admitted. That is the plain meaning of what was done, whatever be its value. Except that case, there is no case of admission, and none of an application tabled and refused. But there are cases proved where the parties would have been entitled to admission if after their wives' deaths they had been admissible; and these were not parties who did not care about entering, but who contemplated entering, and were deterred by those whom they consulted as to the usage. There are also one or two instances of persons being urged to enter before their wives' deaths, lest they might lose their privilege under the unwritten law of the corporation. The preponderance of evidence is in favour of the defenders, and the fact of no instance occurring is corroborative of it. I therefore think it established that the usage was to reject persons in the position of the pursuer. There is a minute of 1780 founded on by both parties. It is in these terms:—“Which day there was an overture laid before the guildry, in order for to have a standing law made annent the admission of the sons-of-law of gild brethren who had neglected to enter during the life of their wife, who had been the daughter of a gild brother; which being considered by the meeting, they appoint the Dean of Guild and his council to draw up a proper overture, to be laid before the guildry at their next meeting; and also that this overture shall comprehend the grandchildren of gild brothers whos father had neglected to enter; and that this overture shall be put in the book in order that the same may be turned into an act at next anniversary meeting, if so they shall approve thereof.” This minute shows that it was in contemplation to alter the standing law as it stood at the time—namely, the usage. It was contended for the pursuer that this was a proposal to prevent admission after a wife's death, and that nothing having been done upon it, the law must have been as he contends. I think it could not be a proposal of that kind. Sons-in-law after the wife's death were kept out already according to the usage, and it must have been a proposal to let them in. This being so, do the regulations of 1852 abrogate the unwritten law? Is the term “son-in-law” used in a different sense in them from its sense previously. If it was intended to make any difference it would have been clearly stated, and I am not satisfied that the rules were intended to alter the law, or to do anything but remove doubts.

Lord Curriehill concurred. He thought that if an alteration of the laws was made in 1852 there might be a question as to the power of the brethren to make it. He thought that the true theory of the society's law was to provide for the daughters of members as well as sons. The sons had a right to enter as such. The law gave the daughters the same privilege, by admitting their husbands on the same terms.

Lord Deas said the Lord Ordinary proceeded on the footing (1st) that it was quite competent to make these rules; and (2d) that it was incompetent to inquire into previous usage in such a case as this. He greatly doubted the first point, and also the legality of making by these rules what the members themselves called “a new constitution.” He had no doubt of the competency of looking to usage. Before 1852 there was nothing but usage, and he concurred as to the result of the proof upon it. Being satisfied of this, he was clear that the term “sons-in-law” could not be held to be used in the rules in any other sense than that in which it had been used from time immemorial.

Lord Ardmillan also concurred. He founded mainly on the overture in 1780, which, he said, it was impossible to read as an overture to prevent the admission of persons in the position of the pursuer. Nothing followed on it; therefore the practice remained. But in 1791 a person claimed admission whose wife was dead. It was as clear as day from what was done in that case, that the practice was not to admit, because he was admitted on the special ground that the matter had been delayed by the Dean of Guild. This exception proved the rule.