you about half-past 10; but as it is market-day at Stowmarket, must return very shortly, and hope your client will be in the way and a satisfactory arrangement completed. This letter is without prejudice. "Yours truly,

"W. Roberts, Esq., Solicitor, Debenham. (A. O. F. v. Hipperson.)

"OSCAR W. ROBERTS."

"Ipswich, Nov. 19th, 1874.

"I have seen my clients this morning, and they have instructed me to consent to your letter of the 18th inst. The appeal will be heard within three weeks, of which your client will have due notice.

This count then concluded like the first. Demurrer and rejoinder.

Mr. Mereweather in support of the demurrer. It is only by force of the Friendly Societies Acts that an officer of a society can be sued. By section 7 of 21 & 22 Vic., c. 101, "In any proceeding under the said recited Act (18 & 19 Vic., c. 63) or this Act, against a society, it shall be sufficient to make the secretary or other officer of the society, at the time of the plaint or complaint being entered or made, the defendant in such proceeding, by his name and the title of the office he holds in the society "that refers only to plaint or complaint, and not to an action. By section 19 of 18 & 19 Vic., c. 63, "The trustees of any such society, are hereby authorised to bring, or defend, or cause to be brought or defended, any action, suit, or prosecution in any court of law or equity, touching or concerning the property, right, or claim to property of the society for which they are such trustees; and such trustees shall, in all cases concerning the real or personal property of such society, sue and be sued, plead and be impleded, in any court of law or equity, in their proper names, as trustees of such society, without any other description It will be argued for the plaintiff that the secretary is substituted for the trustees by section 7 of the second Act; but that is not so, section 19 remains, and applies to actions, while section 7 applies to proceedings in the County Court and before justices. But even if the secretary is to be taken as substituted for the trustees, this is not such an action as is contemplated by section 19; for it simply relates to a contract compromising a law proceeding, and does not touch or relate to the real or personal property of the society. [Lush, J.: It is an action relating to the right of the society; the words are, Any action touching or concerning the property of the society."] "Right or claim to property" means right to property or claim to property, which this is not.

Mr. Loyd, for the plaintiff, was not called upon.

66

Blackburn, J. I am of opinion that there must be judgment for the plaintiff. The friendly society had entered into a contract for the compromise on equitable terms of a pending proceeding against them. The plaintiff sues on that contract, being the attorney for the member

who had commenced the proceedings against the society. Nothing is stated to show that the client might not have sued the society. The question is, how is the plaintiff to enforce the agreement? The friendly society is constituted under the statute, and by the enactments of the statute it is not everything that the society can do; but there are certain matters included in which the society has a concern, either relating to property or by which it is liable to have its funds taken away. By 18 & 19 Vic., c. 63, s. 19, “the trustees of such society are authorised to bring or defend any action, suit, or prosecution in any court of law or equity, touching or concerning the property, right, or claim to property of the society; and such trustees shall and may, in all cases concerning the real and personal property of such society, sue and be sued in any court of law or equity in their own names.' It seems to me that in this action the society is interested in a contract in which the right to property is concerned, and that is not a matter ultra vires. Then section 7 of 21 & 22 Vic., c. 101, says that in any proceeding under the recited Act or this Act against a society, it shall be sufficient to make the secretary or other officer the defendant. Is an action which would lie against a trustee under the first Act a proceeding under that Act? I think it is; and it is unnecessary to enquire whether this would be a proceeding under the second Act. Judgment must, therefore, be for the plaintiff.

Lush, J. I am of the same opinion. Certain contracts are competent to the society to make. The employment of a solicitor seems to be contemplated by sections 19 and 24. How is he to recover his costs? Surely he is not to be left without a remedy. Practically it would be so, if he must sue every individual member. It must have been the intention of the Act to do away with this difficulty, and to enable him to proceed against the officer of the society. It seems to me that the terms of section 19 are wide enough to include the present case. Right" means something beyond" property," or "claim to property."

Field, J. It seems to be established that this contract was one which the society might lawfully enter into. The society is a fluctuating body, and such body having entered into the contract, the legislature, to prevent the injustice which would ensue if there was nobody who could be sued but the members of the society at large, has given facilities by naming persons who may sue or be sued, viz., the trustees under the first Act, for which the secretary or other officer is substituted in the second Act. And they are to bring or defend any action touching or concerning the property, right, or claim to property of the society. The question is whether that goes far enough to include the present The property of the society might certainly be affected in the present action; and, therefore, I think the action is rightly brought against the officer.

case.

Judgment for plaintiff.

N.B.-See Friendly Societies Act, 1896, 59 & 60 Vic., cap. 60, sec. 94.

CASE 64.

COURT OF SHEA v. THE UNITED

COMMON

PLEAS.

1867.

SOCIETY OF ST.

SICK AND BURIAL

PATRICK.

Prohibition-County Court-Usual and principal place Wednesday, of business-Affidavit-Friendly Societies Act, 18 & 19 Vic., cap. 63, sec. 41.

Nov. 13.

The 41st section 18 & 19 Vic., c. 63, provides a remedy for disputes under the rules of a friendly society, after an arbitrator has allowed forty days to elapse from the making of the claim without giving his decision, in the County Court of the district within which the usual or principal place of business of the society shall be situate.

Application was made to the court for a prohibition to restrain the plaintiff from proceeding against the defendants in the Bloomsbury County Court on the grounds, as stated in an affidavit by the defendants' secretary, that the defendants' usual and principal place of business was at Liverpool, and that the defendants were willing to settle the dispute by arbitration.

Held that the affidavit did not show sufficient cause for the interference of the court, and that even if the breaches of the Act had been more fully alleged, they would have been questions of fact which might be considered by the County Court itself on a plea to its jurisdiction, and were not grounds for a prohibition.

Plaintiff commenced an action in the Bloomsbury County Court of Middlesex against the defendants for £16, the amount of a policy alleged to have been effected by her late husband, as a member of defendants' society.

The rules and tables of the defendants' society have been duly certified under the Friendly Societies Acts.

The usual and principal place of business of the said society is situate in Liverpool, and not within the jurisdiction of the County Courts of Middlesex, and the cause of action did not arise within the district of the said Middlesex County Courts.

By the rules of the society, disputes were to be settled by arbitration, pursuant to 18 & 19 Vic., c. 63.

These facts were stated in an affidavit by the society's secretary, but no evidence was produced that the society had no usual office in London, and although it was stated that the defendants were willing to settle the dispute by arbitration, there was no allegation that the time required by the Act had elapsed since the claim had been made.

Mr. Morgan Lloyd moved for a prohibition to restrain the plaintiff from proceeding against the society in this action: I submit that the plaint ought to have been issued from the Liverpool County Court, and that there is no jurisdiction in London. [Bovill, C. J.: The affidavit should allege that the defendants have no usual place of business in London, as well as that their usual and principal place is in Liverpool.]

BRAR

The words of the Act are not "an usual place" but "the usual or principal place."

In the case of Brown v. London and North Western Railway, 11, W.R. 884, it was held that a railway cannot be said to carry on business at any place other than at their principal office, and they cannot, therefore, be properly sued in the County Court of a district where they have a large but not their principal station.

This was also held in Minor v. London and North Western Railway Company, 1 C.B.N.S. 325. Next, this is not a case within the jurisdiction of the County Court at all. It is a matter which might be settled by arbitration, and the defendants are quite ready to have the question decided by that means. It is only when an arbitrator fails to make an award in forty days after the claim has been put in that the claimant may apply to a County Court.

Bovill, C. J. I am of opinion that this rule should not be granted. The first ground relied upon for a prohibition against this case being proceeded with in the County Court was that the usual and principal place of business of the society is at Liverpool, and not within the jurisdiction of the Middlesex County Courts; but there is no allegation that the society has no usual place of business within the district of these courts. The language of the Act is, that application can be made to the County Court of the district in which the society have their "usual or principal place of business; and the reason for altering in the affidavit the disjunctive to the copulative conjunction may be the fact that the society has an agent with an usual office or branch in London; I think that would have been an "usual place of business" within the meaning of the Act. There is, therefore, no force in the first point made for the defendants. Then it was argued that the case was one for arbitration, and the forty days had not elapsed. There again the affidavit is silent, and no information is given as to the time when the claim was first made. But, further, even if it had been alleged that the forty days had elapsed, I still say that would have been a question for the consideration of the County Court and not ground for a prohibition.

Willes, J.: I am of the same opinion. I do not see why the society should not have several usual places of business.

In the case of the Mayor of London v. Cox, L. Rep. 2, Eng. & Ir. Appeals 239 (Sept., 1867), it was certainly held that where the foundation for the jurisdiction of an inferior court is itself defective a prohibition may be applied for, but that decision by the House of Lords does not displace the judgment of the Ex. Ch. 2, H. & N. 407, in the same case in which Crompton, J., said: "The courts may very properly in the exercise of their legal discretion refuse a prohibition where the question being one of fact seems proper for the decision of the inferior court, and where there is no reason to suppose that they will come to a wrong decision and exceed their jurisdiction." Looking at the smallness of the amount in the present case, I think at present this is an unnecessary application.

:

Byles, J. I concur in all that has been said both by my lord and my brother Willes.

Keating, J. also concurred.

Rule refused.

COURT OF APPEAL. 1.886.

May 15. Before LINDLEY, FRY AND LOPES, L.J.J.

CASE 65.

JONES v. SLEE.

APPEAL FROM THE CHANCERY DIVISION.

Friendly Society-Proposed Amalgamation Claimants dissatisfied with arrangement-Application to County Court-Prohibition-Friendly Societies Act, 1875 (38 & 39 Vic. cap. 60), secs. 22, 24, 25 and 30.

By section 24 of the Friendly Societies Act, 1875, With respect to the resolutions by registered societies and to the proceedings which may be taken by virtue thereof, the following provisions shall have effect -Any society may, by special resolution, transfer its engagements to any other registered society which may undertake to fulfil the engagements of such society. By sub-section 6 no special resolution is to take effect until a copy thereof has been registered. By section 25, "with respect to the dissolution of registered societies, the following provisions shall have effect:-If any member of a dissolved society or person claiming any relief, annuity, or other benefit from the funds thereof, be dissatisfied with the provisions made for satisfying his claim, such member or other person may apply to the County Court of the district and such court shall have the same powers in the matter as in regard to the settlement of disputes under this Act. By section 30, sub-section 10, in all disputes between a society and any member or person insured, etc., such person or member may, notwithstanding any provisions of the rules of such society to the contrary, apply to the County Court and such court may settle such dispute in manner herein provided."

A friendly society entered into an agreement with another friendly society for the transfer of its business. Before the special resolution was confirmed, certain members of the transferring society obtained, ex parte, from the County Court a receiver of its assets, and also commenced proceedings against the secretary asking for relief against the proposed transfer on the ground that the plaintiff's were dissatisfied with the provisions made for satisfying their claims.

Held, affirming the decision of Bacon, V.C., that the plaintiff's proceedings were premature, the existence of a special resolution being a condition precedent to commencing proceedings, and that a prohibition against the County Court proceedings must be granted.

The Swansea Royal and South Wales Union Friendly Society, which was registered under the Friendly Societies Act, 1875, on the 9th March, 1886, entered into a provisional agreement with the London, Edinburgh and Glasgow Assurance Company, Limited, for the transfer of its