from himself, and the fact of his being a trustee such money was vested in him as well as in Clapham and the other trustees. The Bench, after consulting with their clerk, dismissed the case.-In the second charge, as to the £150, Mr. Law said he should offer no evidence, and it was therefore dismissed.

COUNTY COURT. TRUSTEES OF GOOD INTENT LODGE OF ODDFELLOWS (WEST HARTLEPOOL) v. WATSON.

1877. Feb. 10.

Friendly Society-Clearance-Transfer of Member from an unregistered Lodge-Claim by Lodge to which Member was transferred for sick and funeral money paid within 12 months from date of transfer allowed.

At Hartlepool County Court, February 10th, 1877, before Mr. E. J. Meynell, Judge, the decision in the case of the Trustees of the Good Intent Lodge of Oddfellows, West Hartlepool, versus Watson, secretary of the Benevolent Lodge, Wolsingham, was delivered by his Honour. The case was heard a month previous, Mr. R. H. Young, of West Hartlepool, appearing for the plaintiffs, and Mr. Maw, of Bishop Auckland, for the defendant. His Honour gave judgment as follows:

The plaintiffs are the trustees of the Good Intent Lodge of Oddfellows, a duly registered branch of that society; the defendant is a secretary of a lodge called the Loyal Benevolent Lodge of Oddfellows, but which in 1872 was not registered. The 46th general rule of the Oddfellows Society provides for the transfer of a member of one lodge to another, but if he falls sick or dies during twelve months from such transfer, the transferring lodge is to be liable for all claims, and the member is to be paid sick money and funeral benefit at the rate allowed by such lodge. A man called Brown, a member of the unregistered lodge, was transferred in August, 1872, to the Good Intent Lodge, the trustees of which were ignorant that the rules of the Loyal Benevolent Lodge were not registered. Brown fell sick and died within the twelve months. The secretary of the Good Intent Lodge, in accordance with rule 46, wrote to the defendant on September 23rd :

Good Intent Lodge, West Hartlepool, September 23, 1872. Mr. Cuthbert Watson, secretary, Benevolent Lodge, Wolsingham.

Sir and Brother, -Your member, Brother Robert Brown, whom we accepted by clearance, has declared himself on the funds by surgeon's certificate, which I have enclosed, dated September 5th. Please state what amount we are to pay him per week, or per day, as you are aware that you are held responsible for twelve months, according to general law. Your immediate attention will oblige.-Yours fraternally,

55, Scarborough Street,

West Hartlepool.

H. S. STEEL, Secretary.

He received the following reply:

Loyal Benevolent Lodge, Wolsingham, October 2nd, 1872.

Sir and Brother, -I write these few lines to inform you of what our lodge allows in sickness, 8s. per week for the first 26 weeks, and 7s. per week for the next 26 weeks. I wanted information before I answered your letter, or else I ought to reply sooner.- Yours fraternally,

CUTHBERT WATSON, Secretary.

The Good Intent Lodge paid on Brown's behalf £17 14s. 8d., and which, according to rule 46, the Loyal Benevolent Lodge, if duly registered, would have been obliged to pay, and to recover this sum the action is brought. Had the Loyal Benevolent Lodge been a registered society, the matter is one which probably would have come under the general arbitration rules, but being an unregistered society it was argued and conceded that these rules would not apply. Mr. Young contended that the trustees could recover from the defendant for money paid to the use of the defendant at his request, relying on the letters. I think that contention is right. The members of an unregistered friendly society are either in the position of partners or as members of a club, and the latter seems a more accurate description of their position. It is not material in this case whether they are partners or not, as by the County Court Act one partner can be sued without joining his co-partners. I think the defendant's letter is a sufficient request to pay the money, and that it is paid to his use. If not recoverable as money paid, it perhaps may be so as money paid and received, and I would amend by adding such a claim if necessary. It appears to me the money is recoverable, and I find for the plaintiffs.

COURT OF
COMMON

PLEAS.

CASE 98.

WORMWELL v. HAILSTONE.

TINDAL, C. J. An Officer of a Society or other person sued is not personally liable.

1830.

June 17.

In an action against the clerk of the trustees of a turnpike road, under a statute which permits the trustees to sue and be sued in the name of their clerk, execution cannot issue against the clerk personally.

QUEEN'S
BENCH

DIVISION.

1888.

March 23
and
June 12.
Before
CAVE, J.

AND

CASE 99.

ASHBY v. COSTIN.

Administration-Insurance (Life and Accident) Benefit Society-Contract of member with Society-Death of member intestate entitled to allowance-Discretion of committee to pay allowance to other than deceased's administrator-Right of assured's administrator to death

allowance.

GRANTHAM, J. The defendant's brother was a servant in the employment of the London and North Western Railway

Company, and was a member of an insurance society formed of the workmen of that company, the company making contributions to its funds. The members were entitled to a death allowance on their death happening when on duty. The allowance was proportioned to their weekly contributions. The defendant's brother, who was killed when engaged in his duties, lived with her. He made no will. The defendant applied to the committee of the society to be paid the sum due to her deceased brother, and the committee, under one of their rules, paid it over to her. By the rule in question the committee were empowered to pay such allowance to such person or persons as in their discretion they might think fit, it being always understood that the extent to which the committee should be bound to the payment of death allowance should be, in the case of a married man, to his widow or children, or to his parents, or to any of them, in such proportions as the committee should determine; and in the case of a single man, to his parents, brothers, or sisters, or any of them, in such proportions as aforesaid, unless the deceased members, married or single, should have otherwise bequeathed the money, in which case it should be paid to the person to whom it had been so bequeathed; but should there be no such surviving relatives, nor any such special bequest, then the funeral expenses only to a reasonable amount should be defrayed by the society. But every such case, and all other cases, should be subject to the decision of the committee. The plaintiff, the brother of the deceased, took out letters of administration to his estate, and brought an action as administrator against his sister for the payment over to him of the money paid to her by the society, and the County Court Judge gave judgment for the plaintiff. The defendant appealed.

Held that the appeal ought to be allowed, as the deceased had entered into a valid contract with the society, by the terms of which, in the event of his dying unmarried and intestate, the committee might, in their discretion, pay his death allowance to any relative they might think fit within certain classes, and that as the committee had so paid the allowance to the defendant, their decision was final and binding, and she was entitled to retain the money.

This was an appeal from the decision of the County Court Judge of Hertfordshire, in which he gave judgment for the plaintiff, who, as administrator of his deceased brother, had brought an action to recover the sum of £80, part of the deceased's estate, from the defendant, his sister.

The deceased, Alfred Augustus Ashby, was a servant in the employment of the London and North Western Railway Company, and a member of the insurance society of that company.

Each member of the society was entitled, if injured in the service of the company, to a certain weekly allowance proportioned to the amount of his subscription.

The deceased, who was unmarried and lived with the defendant, was killed in the service of the company, leaving no will; and the committee of the insurance society paid over to the defendant £80, being the amount of his death allowance.

The committee, under rule 27, to which the deceased was a party, claimed to exercise a discretion when a member died intestate and unmarried, to whom among certain relatives and in what proportions they should pay the death allowance due to the deceased member.

The plaintiff, the brother of the deceased, took out letters of administration of his estate, and brought his action against defendant to recover the said sum of £80, being part of the estate of the deceased.

The learned County Court Judge gave judgment for the plaintiff and defendant appealed.

Mr. Blackwell for the defendant; Mr. C. E. Jenkins for the plaintiff. June 12.-The judgment of the court was delivered by

Cave, J.-This is an appeal from the decision of the judge of the County Court at Watford. The action was brought by the plaintiff as administrator of Alfred Augustus Ashby, deceased, to recover from the defendant the sum of £80 paid to her by the London and North Western Railway Insurance Society under the following circumstances:

The deceased was a member of the society under Scale A, and had filled up and signed and transmitted to the secretary of the society the declaration form contained in Appendix I. to the rules. Rule 27 is as follows: [His lordship here read the rule.] As we read this rule, it forms the contract between the member and the society as to the payment of the death allowance, and by it the society binds itself to pay the death allowance to the person to whom the member may have bequeathed the same, and in the absence of any bequest, in the case of a married man to his widow or children, or to his parents, or to any of them in such proportions as the committee shall determine, or in the case of a single man to his parents, brothers, or sisters, or any of them in such proportions as aforesaid. In the absence of any such surviving relatives the society are to pay only the member's funeral expenses. In Ashby's case the death allowance amounted to £80. He had not bequeathed it, and was a single man, and, under the circumstances, the society paid the amount to the defendant, his sister. It cannot be contended that the society have not fulfilled their obligation to the deceased, but it is said that the sum was assets for the payment of the debts of the deceased, and that the defendant, in receiving it, acted as executrix de son tort and is liable to the administrator. We cannot agree with that contention.

The money was not the money of the deceased, although it was payable out of a fund to which he and others contributed. It was to be paid according to the bargain made by the deceased with the other members. He had a power to bequeath the whole amount to any one he might select, and we think it is tolerably clear that if he had exercised this power the amount would have been assets for the payment of his debts.

Holmes v. Coghill (7 Ves. 498 and 12 Ves. 206, and see 2 Williams on Executors, 7th edit., p. 1686). But he did not, in fact, exercise the power, and by the contract between the society and himself the money was to be paid to certain prescribed relatives in such proportions as the committee of the society should determine. It was contended that the language of the 27th rule was only intended to provide someone who should be able to give the society a good discharge for the money, but we cannot so read it. If there are no surviving relatives of the classes indicated, the society will, after paying the funeral expenses, be entitled to retain the balance of the death allowance, and, in our judgment, if no will is made, they, and not the member, are to determine who among the relatives indicated are to have the benefit of the allowance. It is said that the declaration form in Appendix I. supports the contention of the plaintiff as showing an intention to secure the benefits of the society to the members' representatives in the case of his death. To us, however, it seems clear that these words are used generally to cover the executor or administrator, or the legatee in the case of a bequest. It must be remembered that the death allowance is not the property of the member in the sense of its belonging to him absolutely in his lifetime, he has no right to it but such as the rules give him. If he chooses to bequeath it by his will, it will, as we have already said, be assets; but if he does not choose to exercise this power, the committee and not the member will determine which of his relatives will get the allowance, and in what proportions, and unless he leaves surviving relatives within certain degrees, the balance after the payment of his funeral expenses, will remain the property of the society. For these reasons we cannot agree with the learned judge that this sum was an asset for the payment of the debts of the deceased member, and consequently the judgment for the plaintiff must be set aside, and judginent be entered for the defendant, with costs here and below. Appeal allowed.

CASE 100.

CHORLEY BIBBY v. SECRETARY OF IMPERIAL LODGE OF COUNTY

COURT.

Before

DRUIDS.

Friendly Society - Judgment against Secretary as JUDGE representing Society-Order not complied with-Judgment HULTON. Summons-Application for Committal.

Held that the judgment could not be enforced against the secretary personally.

Recently, a case of peculiar interest to officials connected with friendly societies came before Mr. Hulton, judge of the Chorley County Court. Mr. Spence appeared on behalf of Mr. Bibby, who, in the month of June last, obtained a verdict against the secretary of the Imperial Lodge of Druids, Eccleston, for the payment of £28 8s. due to him on account of sick pay, and applied that the secretary, Mr. Lancaster, should be committed on a judgment summons. Mr. Nash, barrister, put in objections to the procedure, and while admitting that the secretary of the lodge was rightly sued, contended that when the judgment was

M