sight appeared to savour somewhat of a trade union. The Court of Appeal held that, its objects being substantially those of a friendly society, those subsidiary rules did not go beyond what was reasonably necessary for the protection of its funds, and therefore did not make it an illegal association. Gozney v. Bristol Trade and Provident Society (a) comes within the same category. Cozens-Hardy, M.R., said of the society in that case: 'it is a harmless friendly society and there is nothing unlawful in its objects.' Neither of these cases affects the present. . . The case of Farrer v. Close1 does not seem to have much bearing on the present, because it is said that the rules then in force were not the same, and did not contain the provisions in the present rules upon which the defendants rely. As I read it, all the members of the Court thought the rules there in themselves unobjectionable, but two of them took into consideration the course of business which had been followed by the society in acting upon them, and held that, as that amounted to an unlawful restraint of trade, the society was an illegal one." His Lordship thought that Cockburn, C.J., indicated that in that case he would have been inclined to accept the view that the rules were characteristic of a friendly society's rules, had there been nothing to show that the rules in question, in their practical application by the society, had been made subservient to the purposes of a trade union instead of being confined to those of a friendly society. And his Lordship quoted the following remark from the

1 (1869) 4 Q. B. 602.

(a) Supra, p. 101.

judgment of the Chief Justice: 'I think we are bound to look not only to the rules themselves, but also to the conduct and operations of the society; and that we must treat the society, not according to what it professes to be, but according to what it practically is.' The Chief Justice, therefore, treated the question in that case as depending, not on the construction of the rules, but on the manner in which the funds of the society had actually been applied. "That mode," said Farwell, L.J., "of dealing with the question is contrary to the view which I have expressed, but the point does not really arise in the case now before us."

On the subject of strikes, Farwell, L.J., observed1: Strikes. "It was urged before us that a strike may or may not be lawful, and that the Court ought to assume that only lawful strikes are contemplated by the rules of the society. Admitting that it is not to be assumed that an unlawful strike is intended, in the sense of a strike involving criminal or wrongful acts, there is no such assumption with regard to a strike which is in restraint of trade; the very object of a trade union on its militant side is to obtain its end by restraining trade, and, as this has been rendered lawful by the Trade Union Acts, there is no reason for assuming that this is not its real object and purpose. These rules undoubtedly enable such restraint to be applied; thus, the executive body may call out the men on strike for any or no reason, for their good or to their detriment, and regardless of the public

Kennedy,

L.J.

Mudd v.
General

welfare.

If the rules are so framed as to give the executive this power, then they are illegal at common law and only good under the Trade Union Act. I cannot doubt that this is their true construction, and the actual intention of the framers thereof."

Kennedy, L.J., concurred. He thought that the question here was whether the scheme of the rules constituted the society an illegal one at common law. He observed 1: 1 "Speaking generally, what seems to me to be the vice of these rules is that they provide for a restraint of trade, not shown to be reasonable, in that they involve a surrender by the members of the union of their individual freedom of action." He pointed out that an expelled member was excluded not merely from the benefits under the militant portion of the rules, but also all benefits under the friendly society portion. He thought that the rules involved restraint of the widest and most extreme character, and were inseverable. He adopted the decisions in Old v. Robson (a), Sayer v. Amalgamated Society of Carpenters and Joiners (b), and Cullen v. Elwin (c), and said that his decision was not in conflict with Swaine v. Wilson (d), nor Gozney v. Bristol Trade and Provident Society (e).

2

In Mudd v. General Union of Operative Carpenters and Joiners, it was held that, on the construction Operative of the defendant society's rules, it was an illegal

Union of

Carpenters.

association at common law as being in restraint of trade. Coleridge, J., observed1: "If the matter Colewas res integra it might be urged that the law ridge, J. should take cognizance of all innocent rules of a trade union, but decline to recognise such rules as are framed for an illegal purpose. But it has been held in Russell v. Amalgamated Society of Carpenters and Joiners (a), that if the objects of the trade union are in any substantial sense illegal, the whole trade union is an illegal association, and none of its rules can be enforced. On the other hand, if the objects of the trade union be in the main legal the fact of the existence of a rule or rules which disclose an illegal purpose, if such rule or rules are not in regard to a main object of the society, will not make the whole society illegal." His Lordship thought that the rule dealing with misconduct and consequent expulsion of members was similar to that in Russell's case, in which it was held that such a rule contemplated such a restraint of trade as to make all the other rules generally, harmless or otherwise, unenforceable at law. "This decision," he concluded, "was grounded on the consideration that there was so strong a persuasion on the members to obey the rules, even contrary to their inclination, through fear of losing the benefits, as to make the rule a rule in restraint of trade, and that, being a dominant rule, it made all the other rules unenforceable." His Lordship thought that it must be clearly shown that the rules having an illegal tendency 1 (1910) 26 T. L. R., at p. 519.

(a) Supra, p. 106.

Osborne v.

Amalgamated Society of Rail

way Ser

(No. 2).

were a main feature of the trade union before they could render unenforceable the harmless rules.

In Osborne v. Amalgamated Society of Railway Servants (No. 2), the plaintiff brought an action against a registered society, from which he had been expelled, claiming to be reinstated. On the preliminary objection that the defendant society was an illegal association at common law, and that its domestic agreements were therefore unenforceable, being taken (a), the Court of Appeal (Cozens-Hardy, M.R., Fletcher Moulton and Buckley, L.JJ.), reversing the decision of Warrington, J.,2 held that on construction the rules were not illegal as being in restraint of trade, that the society was therefore an association lawful at common law, and that the action was consequently maintainable. Cozens-Hardy, M.R., after remarking that there was nothing in the objects of the society, as appearing from the rules, which suggested illegality, observed3: "But, though the objects are free from the taint of illegality, there may be provisions in the rules which seek to advance the objects by unlawful means. It is remarkable that there is no provision, such as is very often found in rules of trad calling out members in the event Lordship said that illegality upon some plain provision