BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Murray v. Johnstone [1896] ScotLR 33_714 (8 July 1896) URL: http://www.bailii.org/scot/cases/ScotCS/1896/33SLR0714.html Cite as: [1896] ScotLR 33_714, [1896] SLR 33_714 |
||
[New search] [Printable PDF version] [Help]
Page: 714↓
[Sheriff of Dumfriesshire.
A curling club having won and become the owners of a cup presented for competition— held ( diss. lord young) that the majority of the members at a meeting specially called to consider and determine as to the disposal of the cup, were not entitled, against the wishes of the minority, to present the cup to the skip of their highest winning rink at the competition.
In 1869 Sir Sydney H. Waterlow, sometime M.P. for the County of Dumfries, presented a silver cup, since known as the Waterlow Cup, as a trophy to be played for by the curling clubs of Dumfriesshire. The inscription on the cup was as follows:—“Dumfriesshire Challenge Cup. Presented to the Curling Clubs of the county by Sir Sydney H. Waterlow, M.P., 1869, to be played for annually, and open to all comers resident in the county. the winner three consecutive years to keep the cup.”
In 1889 a proposal was brought forward to make at the next annual meeting of the Dumfriesshire curling clubs an alteration in the condition under which the cup was played for. Notice of this proposal was given to Sir Sydney H. Waterlow, who in reply intimated that he would be satisfied with any alterations which met with the approval of the majority of the clubs. Thereafter at a meeting of representatives from all the curling clubs of Dumfriesshire on 9th October 1890 certain regulations for the competition for the Waterlow Cup were adjusted. These regulations, inter alia, provided “that each club desirous of competing for the cup must send out not less than one-half of their rinks of four players each, but no club to send less than three rinks.… The club which has gained the highest number of shots per rink shall be the winners, and the skip of
Page: 715↓
the highest winning rink from the winning club shall be the holder of the cup till next match. The cup shall become the property of the club winning twice in succession or three times in all (after date December 1890).” The cup was won in 1891 and 1893 by the Upper Annandale Curling Club, and as there was no play in 1892, the cup became the property of the club as having been won by them twice in succession. The skip of the highest winning rink from the winning club in both years was Michael Johnstone, Archbank, Moffat, and the cup was handed over to him as custodier for the club.
In November 1893 a special general meeting of the Upper Annandale Curling Club was called, the business being stated, inter alia, ‘to decide as to the disposal of the Waterlow Cup.’ At this meeting, held on 16th November, forty-four members out of a total of eighty-seven were present, and two motions were submitted to the meeting with regard to the cup—(1) That the cup be kept by the club as their own property, and (2) That it be presented to Michael Johnstone. On taking the vote it was found that there was a majority of votes in favour of presenting the cup to Michael Johnstone, and on the result of the vote being communicated to the latter he accepted the cup. The minority protested, and in consequence of a requisition, a special general meeting of the club was held in February 1894, attended by fifty members, at which meeting a motion to rescind the resolution gifting the cup to Michael Johnstone was unanimously carried. The secretary thereafter applied to Michael Johnstone for the cup, but the latter refused to part with it.
William Murray and four other members of the club, as individual members, and also as a committee elected to represent the club, raised an action in the Sheriff Court at Dumfries against Michael Johnstone, to have the defender ordained to deliver up the cup to the pursuers, or to the president or secretary of the club.
On 11th October 1895 the Sheriff-Substitute ( Campion) pronounced an interlocutor finding that the cup, according to the conditions on which it was played for, had become the absolute property of the club, that the members of the club had power at the special general meeting of 16th November 1893 to make a gift of the cup to defender, and that they were not entitled at any subsequent meeting to rescind said gift, and therefore assoilzieing the defender.
The pursuers appealed to the Sheriff ( Vary Campbell), who on 12th November adhered.
The pursuers appealed, and argued—The cup was the property of the club. The property of the club was the common property of the members of the club so long as they remained members. No doubt it differed from the usual case of common property in this respect that the right of the individual members could not be enforced or attached till the dissolution of the club. But nevertheless a member had a contingent right in the assets of the club, and was entitled to object to any of its property being put to uses not reasonably incidental to the purpose for which the club existed. It was clearly ultra vires of a majority of the club to give away club property— in re St James Club, 1852, 2 De G. M. and G. 383. In the case of moveables which were common property the consent of all the proprietors was required, just as in the case of heritable property—Stair, i. 7, 15; Rankine on Landownership, p. 510, &c. Unincorporated companies require to act by unanimous resolution in disposing of their property—Lindley on Company Law, 5th ed. p. 315. It was admitted that the committee managing a club were entitled to make use of its funds for purposes reasonably incidental to the object for which the club was formed, just as in the case of a company the majority could spend money for purposes reasonably incidental to the carrying on of the business of the company— Hutton v. West Cork Railway Company, 1883, L.R., 23 Ch. D. 654, opinion of Bowen, L.-J., p. 671. But directors, or the majority of the shareholders of a company, and the managers or the majority of the members of a club, were not entitled to give the property of the club in gratuities to themselves or any of their number— York and North Midland Railway Company v. Hudson, 1853, 16 Beavan, 485, or to dispose of the property on objects not in accordance with the purposes of the company or club— Tomkinson v. South Eastern Railway Company, 1887, L.R., 24 Ch. D. 675. The analogy of the law of incorporations could be extended to this case. The members of incorporations were trustees, and could not by a majority make a gift to themselves of the property of the incorporation— Howden v. Incorporation of Goldsmiths, June 2, 1840, 2 D. 996; Thomson v. Incorporated Candlemakers of Edinburgh, March 16, 1855, 17 D. 765.
Argued for the defender—A club was not in any proper sense of the term a corporation at all. Its purpose was not to hold property. Whatever might be the interest of the members of this club in the cup, it was not a proprietary interest. You might no doubt have a case where the property of a club was illegally diverted from club purposes. But what was the purpose of a curling club? To promote curling. Then what more legitimate act could a curling club do in order to promote curling than to give a trophy to the person who had been mainly instrumental in winning it. As to the method of voting adopted in this case, if the rules did not contain any provision on the subject the vote of the majority present at a meeting properly summoned must be held to rule. The interlocutors of the Sheriffs should be affirmed.
At advising—
Lord Justice-Clerk—The pursuers and defenders are not at variance as to any of the practical facts of the case. In 1869 Sir Sydney Waterlow presented a cup for competition by the curlers of the county of Dumfries. It was presented as a challenge
Page: 716↓
I cannot but express my regret that such a question should have been brought before a court of law, but as it has come before this Court, and a judgment is insisted on, there is no alternative but to deal with it, and I think we must do so by recalling the judgments of the Sheriffs and pronouncing a decree for delivery.
The case has been dealt with by both of the Sheriffs on the assumption that the cup was won by the Upper Annandale Curling Club, and that they were the owners of it. The only question considered by them was whether the cup had been validly gifted to the defender. Both Sheriffs are of opinion that the cup was validly gifted to the defender, and they therefore decided the case in his favour, and held that he was entitled to keep the cup.
I therefore, in the first place, address myself to the question whether the decision of the Sheriffs on this matter is right or not, and I may say at once that I am of the same opinion as the Sheriff. In my judgment the cup was validly presented by the club to the defender, and no revocation of the gift could be made at any subsequent meetings of the club. An argument has been presented to us on the application of the law of common property to this case. No authority appears to have been suggested to the Sheriffs that the law of common property had been infringed by the presentation of the cup to the defender. But such an argument was addressed to us. In my opinion the law of common property is ridiculously inapplicable to a case of this kind. The idea of the law of common property applying to the money or the furniture in possession of the officers of a club is extravagant on the face of it. No club could be carried on on such a footing. This club, I suppose, has no property except the annual subscription of half-a-crown from each of its members. I suppose it is contended that in accordance with the maxim melior est prohibentis if one member objects no use can be made of club property.
Page: 717↓
But I desire to state an objection that occurs to me to the pursuers invoking the authority of the Court. The cup was presented by Sir Sydney Waterlow in 1869, upwards of a quarter of a century ago, to the curling clubs of the county of Dumfries. What are they? Are their numbers fixed? Nobody seems to know how many there are. To whom did he, or more probably his election agent, give the cup? Nobody knows. It is said that rules were originally framed to regulate the competition. Who framed them? Again the answer is “We do not know.” The rules to be effectual would require to be made by representatives of the various clubs and to be approved by Sir Sydney Waterlow. There is no evidence to that effect. The statements made by the pursuers that the cup was won by the Upper Annandale Curling Club, and that the cup is in the possession of the defender, are admitted by the latter, but quoad ultra not known and not admitted. In these circumstances where there is no evidence to show that the cup ever passed from Sir Sydney Waterlow, he is the proper person to settle this dispute, and to decide who is entitled to the cup. I think he is the only proper person. This would end the unseemly litigation in this Court. I do not think it is seemly for this Court to determine as to the winning of a sporting cup or a box of cigars or a gallon of brandy, and we should avoid as far as we with propriety can from interfering in a matter of the kind.
Although I have adverted to this as in my opinion a good reason for our not determining the matter, I am quite willing to decide the case on the ground taken by the Sheriffs, that at a meeting of the club properly called, the cup was presented to the skip. I agree with the Sheriffs that there was no illegality in this, and no impropriety on account of which we can interfere. If the cup was legally presented, it was impossible for the club to change their mind and revoke the gift.
It has been suggested that the property of the cup is or may be still vested in the original donor. I cannot take that view. I think his right of property ceased when he handed over the cup to the person to whom he gave or sent it, to be held for the benefit of the successful competitors. It was then a delivered gift, and the donor could not recal it. It was no longer his. But as between the parties to this case no such question is raised. It is admitted that the cup was won by the club, and it is at this stage that we are alone concerned with any question of property in it. The club having won the cup, and thus become the owners of it, could the club by a majority, and against the wishes of the minority, make a donation of the cup to one of its members or to a stranger? That appears to me to be the only question raised by this appeal, and viewing the case in that light I have felt no difficulty in disposing of it. The cup is the property of the club, but the club not being a corporation cannot hold any property apart from its constituent members. The cup is therefore the property of the members of the club. Each member of the club has as much right and interest in the cup as another. It is quite true that each member has that right only so long as he remains a member, and cannot, even during his membership, sell or transfer his interest. But so long as he remains a member he has a joint right with all other members in everything that belongs in property to the club. This view of the rights of a member of a club is not without authority, some of which was cited at the debate. If I am right so far, I think the question is solved. No one can be deprived of his property except by his consent or by the action of the law, and consequently the majority of the members of this club cannot deprive the minority of what belongs to them. Had it been a
Page: 718↓
Had I been of opinion that the club by a majority of its members was entitled to give this cup away, I should have agreed with the Sheriff that the resolution passed at the meeting of 16th November 1893 was conclusive, and could not have been gone back upon. But I think the resolution came to at that meeting by a majority was ultra vires, and not binding on the club. I think therefore that the interlocutors appealed against should be recalled, and decree granted in terms of the first conclusion in the prayer of the petition.
The cup having thus become the property of the Upper Annandale Club, the next question is, whether it was effectually gifted to the defender under a resolution passed by a majority of the club. It would have been a handsome act if the club had unanimously voted for giving the cup to the defender. He was skip of the winning rink for two of the years in which it was won for the club, and as probably the club did not possess any local habitation in which to keep it, it was not unreasonable that it should be given to the defender if that course were legal. But the question is, had a majority the power to do so against the wishes of a substantial minority?
I am of opinion that it was beyond the powers of a majority of the club to alienate the trophy. The cup was the common property of all the members although it was won for the club by the exertions of individual members. And although, as I have said, it would in the circumstances have been a graceful act to give it to the defender, it is not surprising that some members of the club, especially those other than the defender who played in the winning rinks in 1887, 1891, and 1893, should prefer that the cup should remain as evidence of their success, and not pass as his absolute property into the hands of an individual member who might any day cease to be a member of the club.
The law of common property is most familiar to us in relation to heritable subjects. The application of the law to moveable subjects is not so well defined or illustrated by decision. But I see no reason to think that in principle the law is not the same. In the case of heritable subjects, while the general rule is that any one proprietor can prevent any extraordinary use of the subject or alterations upon its conditions without his consent, there is an exception to the rule, viz., that necessary operations in rebuilding or repairing cannot be so prevented, and if all parties cannot agree, the will of the majority rules. So in regard to moveables, anything necessary for, and properly incidental to, the purposes of the joint proprietorship may be done by a majority.
The right of a member of a club (not proprietary) in the property of the club is of a peculiar description. While the club exists as a going concern, he is not entitled to insist on a sale and a division of the price. When he dies, his right, such as it is, does not pass to his representatives, and if he retires from the club his whole interest therein ceases. But as long as he remains a member of the club his right is one of common property.
The test whether in any particular case the disposal of club property by a committee or by a majority of members is or is not ultra vires is to inquire whether the proposed use or disposal of the article or fund is incidental to the purposes and proper management of the association. If it is not, a resolution so to dispose of it will not be sustained. In the present case if they had merely resolved that the cup should be held for the club by the defender as long as he remained a member, the resolution might have been justified as a reasonable act of management. But what is proposed is to alienate the club's property, and this I think cannot be done by the vote of the majority.
In the course of the argument it was urged that in this view it would be illegal for a majority of the members of a club to make a present out of the club funds to a secretary on his retiring, or to an old servant, or to present a medal or other prize to a member. Such a question seldom, if ever, arises. If the gift proposed is substantial, it is usually made or eked out by private subscription among the members. If it is trifling, nobody objects. But if objection were taken by a minority, each case would depend upon its own circumstances, and fall to be decided according as the gift was or was not fairly authorised by the constitution and purposes of the club. Here what is proposed to be done is not to buy a prize or souvenir for the defender, but to present him with a valuable trophy,
Page: 719↓
On the whole matter I am of opinion that the appeal should be sustained, and that the defenders should be ordained to deliver up the cup to the pursuers. He would have acted wisely if he had adhered to his original resolution to refuse the offer.
The Court pronounced the following interlocutor:—
“Sustain the appeal: Recal the interlocutor appealed against: Ordain the defender to deliver to Mr John Young, secretary of the Upper Annandale Curling Club the silver trophy known as the ‘Waterlow Cup,’ the property of the club, which was handed over to the defender as custodier for the club for the season 1893–94, within twenty-one days from the date hereof, and decern.”
Counsel for the Pursuers— Salvesen— Constable. Agent— G. Brown Tweedie, Solicitor.
Counsel for the Defender— H. Johnston— Clyde. Agents— J. & A. Hastie, Solicitors.
