there had been excessive drinking in connection with the society on any previous occasion so that the constables might have had reasonable ground for their action then the court would have been very loth to interfere with the decision of the magistrates. But that was not the case here, and accordingly they considered that the conviction ought to be reversed. Mr. Justice Lawrence concurred. The conviction was quashed with costs. N.B. For hearing before the Recorder see ante page 128. KEIGHLEY COUNTY COURT. Before JUDGE BOMPASS, Q.C. 1897. March 17. CASE 252. LAVIN v. HOWLEY. Friendly Society Nomination Will Necessary notice of revocation of nomination not given. In this case, Edward Lavin, of Bradford, as the executor and legatee under the will of his mother, Catherine O'Hara, sought to recover from Maria Howley, spinster, Gladstone Street, Keighley, £45 12s. which had been paid to her by the Liverpool Victoria Legal Friendly Society in respect of two policies of insurance on the life of the deceased. The testatrix before her death executed a will, and by a codicil she revoked her nomination, and left the money to the plaintiff, but this alteration was not notified to the society, as the nomination had been. His Honour said the facts were admitted, but some rather important points of law were raised in the case. First, as to the effect of the payment by the society of the money, it was argued on the one hand that this gave to the defendant, as the nominee of the deceased, an absolute right to the money; while, on the other hand, it was contended that the payment over by the society merely protested it, without settling the question as to who was entitled to receive. This question depended mainly upon the Act of Parliament enabling these nominations to be made, and in spite of the view taken by the late County Court Judge Cox, to which reference had been made, his own conclusion was that the effect of the nomination was the same as the effect on a will, as giving to the person nominated the property in the money paid over. The Act 38 & 39 Vic., c. 60, s. 15, set forth certain privileges of registered societies, and the position was set up that these were only privileges to the society, and not to the members. But, surely, it was the privilege of such a society to confer rights upon its members which non-members would not possess, for this was one of the things most sure to attract members. His Honour went on to express his conviction that these meet the difficulties of societies formed to encourage thrift among classes of the people who did not often hold property of any great amount of value, and who were anxious to avoid the expense attendant on making and proving a will. Such cases placed societies in a difficulty in regard to the payment out of benefits, and the Act appeared to have had as its object the affording of a simpler method of disposing of this money by providing what he might term a "statutable will" by the simple method of nomination. It seemed to him that upon the society's paying to the nominee of the deceased the sums of money in question, the defendant became absolutely entitled to them for herself, and was under no liability to anybody else in the matter. The next question raised-that this was an invalid nomination, because by the rules of the society the person to be nominated was to be one of the near relatives of the deceased—he decided also in favour of the defendant. As to the question of revocation, it was admitted that no "writing under her hand similarly delivered or sent," had reached the society altering the original nomination, and he held therefore that the nomination remained valid, and judgment must be for defendant. BIRMINGHAM COUNTY COURT. 1897. March 25. CASE 253. GARRATT v. LIVERPOOL VICTORIA LEGAL Friendly Society-Claim for Money payable at death of Member-Deceased Wife's Sister-Executrix-Next of Kin. Mr. This was an action brought by Phoebe Garratt, of 7, Railway Terrace, Barford Road, Birmingham, against the Liverpool Victoria Legal Friendly Society, to recover £8 16s. on a policy of insurance. Dorsett (instructed by Mr. P. Baker) appeared for the plaintiff, and Mr. Broadbridge, of Liverpool (instructed by Mr. Tickle, of London, and Messrs. Bickley, Lynex, and Bickley, of Birmingham), for the society. Mr. Dorsett said the plaintiff married a man named Henry Rixton, but as she was his deceased wife's sister, and the marriage was illegal, Rixton made a will constituting her his executrix and sole legatee. At the time of the husband's death his policy in this society, and his contribution card, were in the hands of his mother, through whom he had been in the habit of paying his contribution. It was arranged by the parties that the plaintiff and the mother of George Rixton, a brother of the deceased, should go to the office of the society in Temple Street, Birmingham, and receive the money. When they got there, however, the plaintiff was left outside in the cab, and when the others returned she was told that the money could not be had. Subsequently she heard that Mrs. Rixton had had the money. She wrote to the company, who replied that the money had been paid to the next-of-kin, and that they could not pay it twice. Plaintiff, in her evidence, said that when they got to the office she was going to get out of the cab, when the solicitor they took with them put his hand out and stopped her. In cross-examination, plaintiff denied that she had simply been asked to go in case of her signature being required, and that Mrs. Rixton had promised to give her something if she got the money. The deceased died in September, and she did not take out the probate until December 10th. She had never seen the policy, but she had often seen her husband give his mother money, and knew that this included the payment for the insurance. Deceased had contributed to his mother's support for years. She believed he was insured when he was eighteen, but she could not say whether or not he had contributed £40 in premiums. Mr. Hooper, the solicitor in question, was not acting for plaintiff in any way, and had no authority to receive money on her behalf. For the defence it was contended that the policy was not the property of the deceased at all, but was taken out by his mother, who paid all the premiums; also, that under their rule 17 the society were justified in paying to the next-of-kin in the absence of notice of any will or letters of administration. Mrs. Rixton was called, and stated that she took out the insurance in opposition to deceased's wishes, and had kept up the payments herself. She insured all her children, and when one of her daughters "took another name," she transferred the payments to the insurance on her son Henry in order to increase the benefits. She insured originally in order to have money to bury her children; but deceased was in the Foresters, and he was buried out of the money received from that society. When her son left her she kept up the insurance for her own benefit. Her son had contributed to her support, but had not given her any money specially for the premiums. She asked plaintiff to go to the office with her, because she had been told that probably plaintiff's signature would be required. When they got there the solicitor told her that plaintiff's signature was not wanted, so they left her outside. When she came out she told plaintiff that they had not received the money. That was true, because the solicitor, who picked it up from the table had not then handed it over to them. The District Manager (Mr. J. E. Tattersall) said that he succeeded in December to a manager who died. As far as he was aware no notice of probate had been received before the money was paid. When the claim was made he asked Mr. Hooper to make inquiries into the circumstances of the family, and on that gentleman's assurance he paid the money to the mother as the next-of-kin. He knew of the existence of the plaintiff, but was informed that her marriage to deceased was not legal. By Mr. Dorsett: He made the payment to Mrs. Rixton as the next-of-kin in accordance with rule 17, and not because she had paid the premiums. The latter defence was simply one of the defences in the action. A verdict was given for the plaintiff, the Deputy-Judge remarking that the defence had more ingenuity than merit. Obviously the person entitled to the money was the executrix. As to the question of fact, whether the policy belonged to the mother or to the son, he thought it exceedingly improbable that Mrs. Rixton would go on paying, in the hope that she would outlive her son, premiums on a policy which in such cases would have been void all through. Mr. Broadbridge asked for leave to appeal as to the effect of rule 17, under which 6,000 claims a year were paid to the next-of-kin. The Deputy-Judge refused the application on the ground that no point of law arose. The defendants had paid the money wrongly through ignorance as to a matter of fact. The rules of the company did not absolve them from paying the right person if they had paid the wrong one. On the application of Mr. Dorsett costs on a higher scale were allowed. COURT OF Feb. 20. LINDLEY, J. RIGBY, J. CASE 254. THE GUARDIANS OF THE WEST DERBY Contract-Loan for fixed period repayable by instalments-Implied alteration of contract by Act of A. L. SMITH, J. Parliament-Poor Law Loans Act, 1871 (34 & 35 Vic., cap. 11), sec. 2. This case raised a question of very great importance to persons who have advanced money to poor law guardians upon the terms that such loans should be repayable by instalments extending over a fixed period of years, such instalments consisting partly of principal and partly of interest at a rate fixed by the contract of loan, the question being whether by virtue of section 2 of the Poor Law Loans Act, 1871, the guardians are entitled to pay off such loans at any time when they may be able to reborrow the money at a lower rate of interest. The West Derby Guardians, in 1875, borrowed £30,000 from the Metropolitan Life Assurance Society, at 44 per cent. interest, on the terms that the loan should be repaid by equal instalments, each consisting of principal and interest, extending over thirty years. In September, 1895, the guardians, without any prior notice to the lenders, obtained from the Local Government Board authority to repay the unpaid balance of the loan and to borrow money for that purpose, the object of the guardians being to obtain the money at a lower rate of interest-that is, 3 per cent. instead of 4 per cent. Having obtained this order the guardians served a six months notice upon the lenders of their intention to pay off the unpaid balance of the loan. The question which was raised by the special case was whether the guardians could compel the lenders to accept payment of the amount of principal unpaid with interest thereon at 4 per cent. to the day of payment. North, J., held that the guardians were so entitled, and against that decision the assurance society appealed. Section 2 of the Poor Law Loans Act, 1871, upon the construction of which the decision depended, enacts that: "If any guardians or managers, having borrowed or hereafter borrowing money under the authority of the Acts referred to, shall be able at any time to obtain a loan at a lower rate of interest than that secured by the charge previously made by them, they may apply to the Poor Law Board for an order to enable them to redeem the balance of the loan, and to borrow so much money as may be necessary for that purpose; and if the said board shall issue their order in that behalf, the said guardians or managers may borrow the requisite amount to redeem such balance, and charge the fund to which the original loan was charged with the repayment of this additional loan in so many instalments as shall be outstanding at the time when the loan is redeemed, but not more. Provided that in the event of any loan outstanding at the time of the passing of this Act, no such redemption shall take place without the consent of the person or persons to whom the loan shall be owing." Section 3: "Loans may be repaid by half-yearly instalments, and where they may have been contracted to be repaid by annual instalments they may, with the consent of the lenders, be repaid by half-yearly instalments of the principal and interest." The Local Government Board has since been substituted for the Poor Law Board. The majority of the court, Lindley and Rigby, L.J.J., allowed the appeal, A. L. Smith, L.J., dissenting. Lindley, L.J., said: The question raised by these appeals is whether poor law guardians, who, since 1871, have borrowed money on the security of poor rates, upon the terms of paying off the principal, with interest, at an agreed rate by equal annual instalments extending over thirty years, can compel the lenders to accept payment of the unpaid principal sum whenever the guardians can borrow the amount necessary for the purpose at a lower rate of interest than that which they agreed to pay. North, J., has decided that they can do so under the powers conferred upon them by the Poor Law Loans Act, 1871, 34 & 35 Vic., c. 11, s. 2. From this decision the lenders have appealed. It is conceded that the guardians have no such power apart from the statute in question, but it is said that the practical effect of that statute is to introduce into every mortgage of poor rates, made after the passing of the statute, a provision enabling the guardians to pay off the mortgage at any time if they can borrow money at a lower rate of interest than that mentioned in the mortgage. It is contended that this is no hardship on the lenders, because they must be taken to know the law and to have made their bargains with reference to it. No one pretends that the lenders can call in the money, if it is to their interest to do so. The bargain, therefore, if it really is as the guardians contend, is a very onesided one, and one which lenders would not make without raising the terms on which they would otherwise be willing to lend. However, I agree that, if the legislature has imposed upon the lenders the obligation of accepting their money upon terms not expressed in their security, they must accept it upon those terms, whether they consider them harsh or unfair or not. They should have thought of that before they lent their money. But, unless the legislature has clearly imposed such an obligation upon them, they may well complain of the hardship and unfairness of such a departure from the plain language in which their contract and security are expressed. Before examining the Act to which I have referred, I pause to ask, what must be found in it to confer upon the guardians the right to pay off a mortgage on terms other than those expressed in it? A power to borrow in order to pay off is by no means enough, for such a power imposes no obligations, either on persons to lend or on lenders to be redeemed. Such a power assumes that persons can be found willing to lend, and also that lenders are willing, or have agreed, to be redeemed as desired. What has to be found in order to support the contention of the guardians is some enactment imposing upon the lenders an obligation to take the principal due to them upon other terms than those mentioned in their express contract. Unless this obligation is clearly imposed upon them by the legislature, it cannot be imposed at all. To impose such an obligation by an inference from language which does not clearly impose it appears to me to be wrong in principle, unless the inference is what is called a necessary inference.e., unless the language relied upon can have no other meaning. [His lordship read section 2.] Now, apart from any inference drawn from this proviso, there is nothing whatever to impose any obligation on lenders of money to guardians to accept repayment otherwise than upon the terms mentioned in their securities." The section simply extends the power of guardians to borrow. Such a power was wanted, for, even if lenders agreed that they would accept or were willing to accept payment otherwise than by instalments, the guardians had no power to borrow money in order to pay them off. It is to be observed |