Scottish Court of Session Decisions

These were two appeals against the interlocutors of the Sheriff of Forfarshire, pronounced in two actions before him, arising out of the same circumstances, one of which was at the instance of Andrew Lawson Fenton and others, the “Forfar Games Committee,” petitioners, against John Charles Anderson, their secretary; and the other was an action of multiplepoinding at the instance of James Grant and others, calling themselves “The Committee of Management of the Forfar Games,” real raisers, against the said Andrew Lawson Fenton and Others, the “Forfar Games Committee,” seeking to obtain payment of the balance of the funds in the hands of the said Forfar Games Committee, and deposited in the Bank of Scotland at Forfar.

It appeared from the condescendence and proof that the Forfar Games, which had been discontinued for some years, were resuscitated in 1865, and held at Forfar from 1865 to 1868, under the auspices of a committee known as “The Forfar Games Committee,” and which was composed of gentlemen who had collected subscriptions for the purpose, and of some others whom they had called in to their assistance. In 1865, 66, and 67, this committee held public meetings in Forfar previous to the games, with a view of popularising them, but were not responsible to or controlled by the public in any manner. The committee dur-these years, of their own accord, added to their number on several occasions persons whom they thought would be useful to them. Amongst others they took in Mr Anderson, the appellant in the first action, and made him their secretary in 1868. The duties of his office were to keep books and papers belonging to the committee, conduct the correspondence, and generally see that all the directions and resolutions of the committee were given effect to. All said books and papers were accordingly given into his charge, with the exception of those in the hands of the treasurer. In the latter end of 1868 Mr Anderson began to neglect his duties as secretary of the committee, and on 9th June 1869 he ceased to carry out their instructions altogether, and refused to give obedience to them. Accordingly, on 13th July of that year, at a meeting of committee, he was denuded of his office, and Mr Andrew Lawson Fenton, one of the committee, was appointed secretary in his room, with instructions to call upon the appellant to deliver up to him all books and papers in his possession belonging to the committee. With this the appellant refused to comply, and accordingly the summary petition, mentioned above as the first of the two conjoined actions, was brought by the committee to obtain delivery of the said books and papers.

In the course of the early part of 1868 some persons having become dissatisfied with the conduct of the games by the committee, began to agitate for a change in the management. With these the appellant allied himself. These persons, the majority of whom were not subscribers, upon the footing that “The Forfar Games Committee” were responsible to the public, having formed themselves into an interim board of management, called a public meeting of the inhabitants of Forfar, and obtained themselves appointed “a Committee of management of the Forfar Games” with a view to superseding the old committee. Having so obtained themselves appointed a committee of management, they raised the second action—that of multiplepoinding in the hands of the Bank of Scotland—against the old committee, alleging a sum of £75, the balance in the hands of the old committee from the previous year's games, as the fund in medio.

A record was made up in both actions, and proof led, which turned very much upon the accuracy of the minutes of meeting produced by the appellant

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Mr Anderson, as minutes of meeting of “The Forfar Games Committee,”

In the first action the Sheriff-Substitute ( Robertson) pronounced the following interlocutor:—

“ Forfar, 19 th January 1871.—Finds in point of fact that public games had been held in Forfar prior to 1865, but that they had been discontinued for several years: Finds that in June 1865 a public meeting was called in Forfar to consider the propriety of reviving these games: Finds that the result of this public meeting was the organisation of a committee, who were to canvass the town and neighbourhood for subscriptions, and in the event of sufficient funds being raised, were to carry out the games: Finds that this committee collected a sum of money which in their opinion justified them in giving games that year: Finds that the committee, with additions to their number, from time to time collected subscriptions and carried on games for four years, until the present dispute arose in 1869: Finds that the petitioners are a majority and quorum of this acting committee: Finds that the petitioners as a committee had no constitution, written or implied, under which they were responsible to the general public: Finds that the subscribers, during the four years in which games were given by the petitioners, allowed them to carry out the games, to make their own arrangements, to appoint their office-bearers, to keep accounts, and dispose of the profits realised by the success of the games, and generally to perform all the functions of a working committee without challenge or hindrance from 1865 to 1868 inclusive: Finds that on the 30th June 1868 the petitioners met and appointed the respondent Mr John Charles Anderson to be their secretary: Finds that the respondent accepted the appointment, and that the books and papers called for in the petition were handed over to him, or came into his custody as secretary to the petitioners: Finds that after the appointment of the respondent to this office he continued for some time to keep the minute-books and perform other business for the petitioners: Finds that at a meeting of the petitioners, held on the 9th June 1869, the respondent was instructed to carry out certain recommendations contained in a report by Messrs Strachan and Fenton, which report is contained in pages 20 and 21 of No. 7 of process: Finds that by this recommendation the committee were advised to procure a correct list of all the subscribers, by intimation to them by handbill to send in their names: Finds that the respondent failed to carry out his instructions in this matter, and without any authority from the petitioners proceeded to call a meeting for the 15th June 1869, which in point of fact was a public meeting, and was intended by him to be such: Finds that at this public meeting a board of management was created by the public superseding the petitioners, and claiming to exercise the management of all funds or property belonging to the games: Finds that the respondent was appointed secretary to this board: Finds that in consequence of these unauthorised proceedings on the part of the respondent, the petitioners deposed him from his office as secretary, and demanded the delivery of the books and documents called for in the petition: Finds that the respondent refused and still refuses to deliver up said books and documents: Finds in point of law that the petitioners are not responsible to the general public, but to the subscribers, for their management and intromissions with subscriptions: Finds that the books and papers called for belong to the petitioners in their capacity as a committee, and as representing the subscribers to the games: Finds that the respondent, having been denuded of his office of secretary to the petitioners, has no present right or title to the books and papers in question: Finds further, in point of law, that the meeting of 15th June 1869, above referred to, not being a meeting of subscribers, had no right in law to transfer the management of the games from the petitioners to a board: Finds that the respondent, as secretary to this board, has no right to the custody of the property of the petitioners, or to the books and papers called for: Therefore ordains and decerns the respondent to deliver up the books and documents called for, conform to the prayer of the petition: Finds the respondent liable in expenses: Allows the petitioners to lodge an account of these, and remits it, when lodged, to the Auditor of Court for taxation and report, and decerns.

Note.—This action is raised to recover certain books and papers in the hands of Mr J. C. Anderson, solicitor, Forfar. There can be no doubt that he obtained the custody of these books while he was secretary to the petitioners, who formed, and still form, an acting committee for the management of the Forfar Games. Mr Anderson is no longer their secretary, having been deposed from his office in July 1869; and as he declines to restore these books and papers to the petitioners, it becomes necessary to examine narrowly his alleged right or title to keep them back. It is proved that for four years the petitioners successfully carried on the Forfar Games. They held constant meetings, they added to their number, appointed office-bearers, and acted in every way as the sole representatives of the subscribers. The Sheriff-Substitute thinks the respondent has failed to show that the committee were either in fact or in law responsible to the general public. It is quite true that their existence originated at the public meeting held at the West End School. But the moment that subscriptions were asked for, and a sum of money was raised, they became the representatives of the subscribers, who had the power of controlling their actions or of impeaching their management. From the proof there is little doubt that this was their true position. Their chairman, who is a lawyer, all along considered that the general public had no right to control their actions; and although he has changed his mind now, and has allied himself to the respondent's party, he has only done so quite recently. For nearly four years he repudiated the right of the public to interfere with the committee, and he has had considerable difficulty in reconciling his present attitude with his former opinions. In point of fact the general public exercised no hold over the committee. There never was a public audit of their accounts, there was no annual election of office-bearers, the public could hardly be got together sometimes to bear a statement from the committee, and in 1868 there was no public meeting at all. The want of a defined constitution was felt by various members of the committee, and efforts were made and resolutions were proposed from time to time with a view to amend this, but no fixed basis or settlement was ever come to. It is quite true that the committee called public meetings from time to time, which were presided over by their own chairman. This was very natural, and it kept the games before the public eye, and infused popularity into their proceedings. But

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the Sheriff-Substitute can nowhere find that this was imperative on the committee, or that the subscribers ever consented to hand over all their rights to the public at large. The committee had no guarantee from the general public that in the event of the games proving a failure in a pecuniary sense they would be reimbursed their outlay. The committee took the sole risk, and were responsible to the tradesmen whom they employed to make preparations, and the Sheriff-Substitute rather thinks that if the games had been a losing concern the public would not have been so eager to take the management. But by prudent conduct the committee have not only paid all their expenses, but have realised upwards of £70, and with this sum of money the respondent's board now wish to intromit, and they have raised a multiplepoinding to secure it. It is not easy to ascertain the meaning of the word ‘public’ as used by the respondent. Who is this ‘public?’ The working men of Forfar, the electors of the burgh, the inhabitants of the town and neighbourhood, the general public at large, any one who attended a meeting—all these definitions have been given to the term. Even the rights of the ladies have not been overlooked. It is difficult to see why the public of Forfar should have a better right to this money than the public of Kirriemuir or Brechin. The money has been made by the committee trading with the subscribers' capital. The subscribers, apart from the public, have never been called together—their views have never been ascertained as to what should be done with this money. There is this, however, to be said, that for four years the subscribers have been satisfied with the management of the committee, and have never called it in question; and until they do so, the Sheriff-Substitute thinks he is quite justified in allowing this money, as well as the minute-books and other property of the subscribers, to remain in the hands of the petitioners. If the Sheriff-Substitute is right in holding that the ‘public’—and by this word he means whatever the respondent means—have no constitutional hold over the committee, and that the petitioners are only responsible to the subscribers, then the respondent's case breaks down. For he only holds the books and papers called for by virtue of his office as secretary to the new board of management appointed by a public meeting, which board, he says, supersedes the committee. The respondent has endeavoured to prove that the steps which were taken to have this new board appointed and this new constitution created were taken at the instance of the committee themselves. But he completely fails to prove this. On the contrary, it is proved that the committee never sanctioned any such step. The minute of a meeting held on the 9th June 1869, for which the respondent is responsible, and on which he relies—this minute has been proved to be inaccurate, and totally inconsistent with the facts. The Sheriff-Substitute accordingly holds that the proceedings on the 15th June 1869, when the board of management was created, and all other subsequent proceedings by this board, are incompetent and illegal in so far as the property of the committee is concerned. If this view be correct, the respondent has no right to keep up the books and papers called for. He must give them back to the petitioners, from whom he got them.

It may be that this new board of management is admirably constituted, and probably will give games in Forfar to the entire satisfaction of every one. But they must start on their own footing, and without the assistance of the funds or property of the petitioners, or at least they must first call together the subscribers and obtain their consent.

The great length to which the proof in this case has attained is explained by the fact that the minutes of the meetings held by the petitioners, contained in Nos. 7 and 12 of process, are very informal and incomplete. This necessitated parole evidence—(See Dickson on Evidence, sec. 118, and case of M'Cartney, 5 W. and S. 504).”

The Sheriff ( Maitland Heriot), on appeal, dismissed the appeal, and “adhered to the interlocutor appealed against, with the following variation:—Finds that it is unnecessary to determine in this case whether or not the petitioners are responsible for their management to the subscribers to the games, and therefore recals any findings to that effect, and decerns.”

In the multiplepoinding the Sheriff-Substitute ranked and preferred the original, “Forfar Games Committee” to the whole fund in medio, and that for the reasons set forth in his interlocutor in the former action.

The Sheriff adhered on appeal.

Against both these judgments of the Sheriff Mr Anderson and the new committee of management appealed to the First Division of the Court of Session.

The cases were argued and decided together.

Guthrie Smith and Vary Campbell for the appellants.

Fraser and Scott for the respondents.

At advising—