Q. B.] REG. v. JCHNSON-FRENCH AND OTHERS v. TUCKER. [C. B. there has been a verdict of not guilty, after a trial on the merits; and it is sought to set aside the verdict, and obtain a new trial, on the ground that the verdict is against the evidence. The verdict binds no right; and that is a strong fact to consider as to granting a new trial It appears to me that it would be a violation of principle to grant a new trial in such a case. Rule discharged. buildings are limited to one-half part of the length of | HILL, J.-This is an indictment for a nuisance; and the street to be paved. On the grounds, therefore, that a similar power was given to the commissioners under the first Stockport Improvement Act, and that the Legislature intended by the present Act not to abridge, but rather to enlarge, the powers given by the first Act, we think that the construction which the plain meaning of the enactment warrants should prevail, and our judgment must be for the plaintiffs. We desire to guard ourselves from being taken as expressing any opinion as to what would be the effect of such a provision as the one under consideration, where no previous statute served to show the meaning of the terms used. We have thought it unnecessary to determine the more general question, in consequence of the intent of the Legislature being here clearly indicated by the former enactment. Judgment for the plaintiffs. Wednesday, Feb 8. Practice-New tri-Obstruction of highway. After a verdict of "not guilty" on an indictment for obstructing a highway, a rule for a new trial will not be granted on the ground that the verdict is against the evidence. Indictment for obstructing a highway. At the tri-l the verdict was found for the defendant. A rule nisi having been obtained for a new trial, on the ground that the verdict was against evidence, Hayes, Serjt. showed cause.-This being substantially a criminal proceeding, and the verdict having been found for the defendant, the court will not grant a new trial on the ground of the verdict being against the evidence, and so put the defendant upon his trial a second time. Cases cited:-R v. Reynell, 6 East, 315; R. v. Oxfordshire, 16 East, 223; R. v. Mann, 4 M. & S. 337; R. v. Burley, 5 M. & S. 392; R. v. Wandsworth, 2 B. & Ald. 63; R. v. Chorley, 12 Q. B. 515; and R. v. Russell, 3 E. & B. 942. Field in support of the rule.-In R. v. Russell it was held that the court would grant a new trial in the case of a prosecution substantially for the purpose of trying a civil right after an acquittal, where the ground of the rule is misdirection or the verdict is again-t evidence, and in the course of the argument Lord Campbell, C.J. observed that an indictment for nonrepair of a highway was very much in the nature of a question as to a civil right. WIGHTMAN, J.-When the case first came before us, I had great doubt whether it was a case in which the court would grant a rule for a new trial on the ground that the verdict was against the evidence. At the trial there was conflicting evidence, and the jury have found a verdict of acquittal, contrary to what we might think right. The question is, ought we now on that ground to grant a new trial? It is said that this proceeding, though in form a criminal one, is really instituted to try a civil right. But is that so? It does not bind the right; and besides, the defendant, on conviction, is liable to be treated as a criminal, and to be subjected to fine and imprisonment. On the whole, I think it better to abide by the rule, where so much of the criminal law is incidental to the case, not to grant a new trial on the ground that the verdict is against the evidence after the defendant has been acquitted. CROMPTON, J.-I also think that we ought not to interfere with a leading rule like this in criminal cases. I do not mean to say that there are not cases of prosecutions in which the court would interfere after a verdict of acquittal; but I adhere to what I said in Reg. v. Russell. This indictment assumes more of a criminal nature than one for the non-repair of a highway. I think it much better to put the prosecutors to a fresh indictment, than interfere on slight grounds with the rule as to not granting a new trial in such cases. COURT OF COMMON BENCH. Reported by DANIEL THOMAS EVANS and R. VAUGHAN WILLIAMS, Esq., Barrister-at-Law. REGISTRATION APPEAL. Nov. 16 and 24. FRENCH (appellant) v. TUCKER (respondent). SMERDON (appellant) v. TUCKER (respondent). BICKLEY (appellant) v. TUCKER (respondent). Election law-Borough vote-Qualification— Occupier of house with land under same landlord-Reversion, severance of, by secret deed-Reform Act, 2 Will. 4, c. 45, 8, 27. A tenant held a house and land under the same landlord, sufficient, together, to give him the borough franchise. The landlord, in course of the year of occupation, and without notice to the tenant, sold the reversion of part of the premises to a third person, who thereupon objected to the tenant's name being retained upon the list of voters, on the ground that the reversion, bing severed, he did not hold under "the same landlord" within the meaning of the 25th section of the Reform Act, 2 & 3 Will. 4, c. 45, and the voter's name was expunged by the revising barrister: Held, that the name must be restored to the list; that the taking of premises of sufficient value from the same landlord was the principal test relied on by the Legislature, and that here, the tenant having so taken them, and having continued to hold them on the same terms, the reversion, whether severed or not, was, as to his interest, the same reversion; therefore he was entitled to retain his vote. At a court held before the revising barrister appointed to revise the list of voters for the borough of Ashburton, Robert Tucker duly objected to the name of John French being retained on the list of persons entitled to vote in the election of a member of Parliament for the borough of Ashburton. The facts of the case were as follow: The voter, John French, occupied as tenant, from the 31st July 1858 to the 31st July 1859, a building and land within the borough of Ashburton, of the annual value of 117. The only objection to the vote was, that the premises were not occupied under the saine landlord. On the 31st July 1858 William Tucker, a son of the objector, was the landlord of all the premises. The tenancy was a tenancy from year to year under a verbal agreement, at the annual rent of 11. The estate of the said William Tucker was an estate for a long term of years, and he still retains that estate in part of the premises; but on the 12th July 1859 he sold to his father, the objector, Robert Tucker, an interest in part of the premises. By a deed of that date, duly executed, the said William Tucker, in consideration of the sum of 17., demised to the objector Robert Tucker one of the fields occupied by the voter, to hold during the joint lives of the said William Tucker and Robert Tucker, subject to the payment of a rentcharge of 47., issuing out of all the premises occupied by the voter. The transaction was a bona fide sale for adequate value. The consideration was really paid, but no notice of the sale or conveyance was ever given to the voter, and he did not know of it until it was disclosed C. B.] FRENCH AND OTHERS v. TUCKER. [C. B. in the revising barrister's court. The voter had not | the relation of landlord and tenant exists:" (Bliss v. since the execution of the conveyance paid any rent either to William Tucker or Robert Tucker. The premises retained by the said William Tucker and the premises demised by him to Robert Tucker were not, when separated, of sufficient value to confer a vote. The objector admitted that the object of this arrangement was, by severance of the reversion, to destroy the vote. On the part of the voter it was contended that inasmuch as there had been no attornment by the voter, nor any apportionment of rent agreed to by him, nor any recognition by him of any other landlord, he still continued (notwithstanding the execution of the deed) to occupy all the premises under William Tucker, the original landlord; and that even the statute 4 Anne, c. 16, which made rendered attornment unnecessary in certain cases, was inoperative in this case, inasmuch as no notice of the deed had been given to the voter before the 31st July 1859. The revising barrister was of opinion that the statute 2 Will. 4, c. 45, s. 27, required not only an original taking, but a continual occupation under one landlord; and that after the execution of the deed William Tucker ceased to be the landlord of the premises thereby demised to Robert Tucker, and the revising barrister therefore decided that the voter had not proved his qualification, and expunged his name from the list. If the Court of C. B. should be of opinion that the decision was wrong, then the name of the voter John French was to be restored to the list of persons entitled to vote in respect of property occupied within the parish of Ashburton, thus: Collins, 5 B. & Al. 876.) [BYLES, J. referred to Co. Litt. 148 a, where it is said, "if the lessor granteth part of the reversion to a stranger, the rent shall be apportioned, for the rent is incident to the reversion."] It is submitted that the words in the Reform Act, occupying under the same landlord," mean holding under the same title without reference to the same actual person, and a person holding under the same title is entitled to the franchise. There has here been no retaking from different persons; and it may be taken to be an occupation within the meaning of the statute, under the same landlord. The J. D. Coleridge for the respondents.-The words of the proviso to the 27th section are most material, and they provide that no person shall be registered in any year unless he shall have occupied such premises as aforesaid (that is, under one and the same landlord) for twelve calendar months next previous to the last day of July," &c. If tenants in common join in making a lease, the tenant has so many landlords, and not one and the same landlord, within the meaning of this Act of Parliament If such taking would not have conferred a vote originally, it will not now. reversion has been severed; there has been a bonâ fide sale of part of the tenant's holding to a bonâ fide purchaser, and he has no longer one and the same landlord. The right to recover for use and occupation is gone by this deed. [WILLIAMS, J.-Without saying your construction is wrong, I cannot help thinking that the Legislature never contemplated such a consequence as this. His Lordship referred to Morton v. Preedy.] Adding the value of the land to that of the building, is in itself insufficient to confer the borough franchise under the section: (Capel v. Overseers of Aston, 2 Lutw. 143; Burton v. Overseers of Aston, Ib.; Collins v. Thomas, 13 C. B. 639.) Maule, J. says, words 'therewith,' and 'under the same landlord,' require an identity of the person under whom the tenant holds as tenant" Rogers on Elections, 61, contains a note on this, wherein it is said, "this restriction may enable a landlord to deprive a tenant holding two tenements of him of his vote, for if he chose in the course of the year to dispose of one of the tenements held by the voter, the latter would not occupy as tenant under the same landlord." That is the case here; it matters not what was the object for which the sale was effected, whether to deprive the tenant of his vote or not. It is submitted that the view of Maule, J. is correct, and the decision of the revising barrister should be affirmed. "the French, John Ashburton | Building & land | Dobbeare-road. Karslake for the appellant.-The question here arises under the 27th section of the Reform Act, by which a qualification to vote at an election for a city or borough is conferred upon any one "who shall occupy within, &c., as owner or tenant, any house, &c., being either separately or jointly, with any land within such city, borough, or place occupied therewith by him as owner, or occupied therewith by him as tenant under the same landlord, of the clear yearly value of not less than 104." &c. If this endeavour to deprive the appellant of the franchise is to prevail, great hardship will be effected, and a tenant occupying for the purpose of the franchise may find, for the first time when before the revising barrister, that a secret deed severing the reversion has been made, and in that manner he has been disqualified. As to the word "landlord" in the 27th section, it can hardly be contended that it means one and the same person, or any change or assignment of the whole reversion would operate to deprive the tenant of the franchise. The apportionment made by the deed is not in any way binding on the tenant, who may dispute it. If a strict construction be put upon the transaction, it can hardly be said that the assignee has become landlord at all. The tenant did not hold under a lease by deed, therefore the case does not come within the stat. 32 Hen. 8, c. 34, consequently the assignee could not sue on the contract between the assignor and the tenant: (Standen v. Christmas, 10 Q.B. 135; Bickford v. Parson, 5 C. B. 920.) It is clear that at common law the assignment ERLE, C.J.-In these cases, which were consolidated, of the reversion could have no effect whatever until the the question was, whether the voter was qualified under attornment of the tenaut. [WILLIAMS, J.-There can sect. 27 by the occupation of a house with land under be no doubt that the statute of Henry 8 does not ap- the same landlord. The premises were demised to him ply to anything but deeds under seal: (Doe dem. Agar by the same landlord, and so the qualification was v. Brown, 2 E. & B. 331.)] A doubt has been raised inchoate; but in the course of the year of occupation whether, in the absence of express contract between the the landlord sold the reversion of a part of the preparties, an action will lie for use and occupation: (Church-mises to a third person, so that in one sense ward v. Ford, 2 Exch. 448.) There Bramwell, B. the reversion was not in the same landlord during says, "the word 'landlord' does not mean the lord of a whole year, and because the occupation was the soil, but the person between whom and the tenant in this sense not under the same landlord during [MAG. C.] Karslake in reply.-As to the opinion of Maule, J., on which reliance has been placed by the other side, it is remarkable that it appears in none of the reports except Lutwyche. The opinion of Mr. Rogers also comes for the first time before the court. Under the words "same landlord" you are not restricted to the same identical person, for if a person who is landlord dies, and his heir succeeds him, the heir is landlord, and the "same landlord" within the meaning of the statute. It may be remarked that the Attornment Act, 4 Anne, c. 16, s. 9, which does away with the necessity for attornments by tenants, provides against a tenant being prejudiced or damaged who has not had notice of the grant. Cur, adv. vult. K C. B.] HOUNSELL v. SMITH AND OTHERS. [C. B. the whole year it was contended that the quali- | roads respectively, or passing over the said waste land, fication was destroyed. But we are of a contrary from falling into the said quarry, and being thereby opinion, thinking that the requisitions of the statute killed or greatly hurt and disabled; and the plaintiff says have been substantially fulfilled. It seems to us the that, on the night of the 9th Jan. 1859, having occasion taking of the same landlord of premises of sufficient to pass along one of the said roads, and having by reason value is the principal test relied on by the Legislature; if of the darkness of the night accidentally taken and prohe so took the premises, and under the taking continues ceeded along the wrong road, he was crossing the said to hold them, or holds on the same terms, the reversion, waste land so lying open and uninclosed towards and whether severed or not, is as to his interest the same for the purpose of getting into the other of them which reversion. The statute does not express that the change he had so occasion to use as aforesaid, and not being of landlord during a year should destroy the qualifica- aware of the existence or locality of the said quarry, tion, and we do not gather from the context that the and being unable by reason of the darkness to perceive Legislature had any such intention. If the assignment the same, or the edge or brink thereof, and the same of a part of the reversion would disqualify, it is obvious being as aforesaid wholly unfenced and unguarded, he that the power might be used to prevent the free by reason thereof, and of the negligence of the defenexercise of the right of voting, and would defeat in dants in that behalf, was precipitated down and into many cases the intention of the appellant in taking the the quarry to a great depth, and thereby was seriously premises. The appeal, therefore, will be allowed, and bruised, hurt, wounded and disabled, and his leg was the decision of the revising barrister in these three cases broken, and he suffered great pain and anguish, and reversed. has sustained permanent injury, and incurred great expense in endeavouring to get cured of the said injuries, and has been and is otherwise greatly damaged, and the plaintiff claims 100%. Decision reversed-Judgment for appellants. Wednesday, Feb. 1. HOUNSELL V. SMITH AND OTHERS. S. and others were owners of uninclosed waste land 392. Pleas-1. The defendants say they are not guilty. 2. And for a second plea, that they were not possessed of such waste land as therein mentioned in manner and form as in the declaration alleged. 3. And for a third plea, that the waste land on which the said quarry was and is situate was not and is not wholly uninclosed and open to the public as alleged. 4. And for a fourth plea, that all persons having occasion to cross or pass over the said waste land upon and within which the said quarry is situate, have not been used or accustomed to go upon, along, or across the same without interruption or hindrance from, and with the licence or permission of, the owners of the said waste land, in manner and form as alleged. 5. And for a fifth plea the defendants say, that the said quarry was not and is not near to and between two public highways leading over the said waste land, in manner and form as alleged. 6. That the said quarry was not dangerous to persons who might accidentally deviate or stray, or who might have occasion to cross the said waste land for the purpose of passing from one of the said roads to the other of them, in manner and form as alleged. 7. That the said quarry was not being worked by such person as in the declaration mentioned, with the licence and permission of the defendants, upon such terms as therein alleged. And the defendants further say that the declaration is bad in substance. Joinder in demurrer. 3. Declaration. That before the time of committing the grievance hereinafter mentioned, the defendants were seised in their demesne as of fee as tenants in common, and possessed of certain waste land, parcel of the manor of Henbury, in the county of Gloucester; and that long before the time of committing the said grievance a quarry had been and was opened upon and within the said land for the getting of stone, which quarry before and at the time aforesaid was being actually worked by a certain person with the licence and permission of the defendants, and upon the terms of payment to the defendants of certain rents and Replication and demurrer.-1. The plaintiff joins royalties for the licence and privilege of work-issue on the pleas of the defendants. 2. The plaintiff ing the same and of getting and taking away also says that the third plea is bad in substance. the stone thereof; and the plaintiff says that the The plaintiff also says that the fifth plea is bad in said waste land, upon and within which the said quarry substance. 4. The plaintiff also says that the dewas and is situate has been and is wholly uninclosed claration is good in substance. and open to the public, and that all persons having occasion to cross and pass over the said waste land have been used and accustomed to go upon, along and across the same without interruption or hindrance from, and with the licence and permission of, the owners of such waste land, and that the said quarry was and is situated near to and between two public highways leading over the said waste land, and was and is precipitons, and of great depth and width, and dangerous to persons who might accidentally deviate or stray respectively, or who might have occasion to cross over the said waste land for the purpose of passing from one of such roads to the other of them beside or near the said quarry; and that the defendants, well knowing the premises, negligently and improperly, and contrary to their duty in that behalf, left the said quarry wholly unfenced and unguarded, and took no care and used no means whatever for guarding or protecting the public or any person so accidentally deviating from the said Karslake for the defendants.-It does not appear here that the public were authorised to cross the waste, but merely that they were accustomed to do so. Where a private road is made up to a house and people are induced to use it, the owner placing obstructions in the road is liable for any accident that may arise: (Corby v. Hill, 4 C. B., N.Š., 556.) But that is not the same case as this, nothing being done to induce the public to cross from the one road to the other. Where leave has been given to hunt or shoot, if the sportsman falls into an unfenced quarry of the licensor, no action will lie. The statement in the declaration is, that the quarry was unfenced; but I submit that the fact of the quarry being near two highways is insufficient to render a fence necessary: (Blyth v. Topham, Cro. James, 158.) It may be that if you induce an animal to come on your ground and then kill it, you will be liable: (Seymour v. Maddox, 16 Q.B. 326; Hardcastle v. South Yorkshire, &c. C. B.] HOUNSELL v. SMITH AND OTHERS-JONES v. HOWELL. 4 H. & N. 67.) Or if you dig a hole abutting on a highway: (Barnes v. Ward, 9 C. B. 392; Southcote v. Stanley, 1 H. & N. 247.) [BYLES, J.-There is no allegation here that the defendants knew the state of the quarry. The occupier ought to fence, not the owner of the land.] Kingslake, Serjt. contra.-The declaration states that the defendants were seised in their demesne as of fee of certain lands, &c. The quarry is worked by leave and licence of the defendants, the owners of the soil. The quarry does not pass so as to exclude the owner: (Muskett v. Hill, 5 Bing. N.C. 694.) There is an allegation that the defendants knew the state of the quarry, and the facts alleged in the declaration, by the words "well knowing the premises." It is alleged that to deviate from the road was dangerous, that the public have been accustomed to go over the same by the leave and licence of the defendants. Barnes v. Ward is the same in pinciple as this case; so also Jordin v. Crump, 8 M. & W. 782, and Blyth v. Topham. Although the cases show that no action will lie for mere holes in a waste, it is admitted that where an accident occurs from an excavation so near to a highway as to be dangerous, the rule is otherwise. Fimstone and another v. Wheeley and another, 2 D. & L. 203, agrees with Barnes v. Ward, also commented on Sarch v. Blackburn, 4 C. & P. 297; Brock v. Copeland, 1 Esp.; Hardcastle v. SouthWestern Railway Company; Seymour v. Maddox ; hoberts v. Great Western Railway Company, 4 C. B. N.S. 506; and Southcote v. Stanley. bad. He [Ex. with the concomitant circumstances, and the public KEATING, J.-I am of the same opinion. COURT OF EXCHEQUER. Reported by F. BAILEY, and JOHN DUNBAR, Esqrs., Barristers-at-Law. Nov. 8 and 24. Malicious Notice of action - False imprisonment Held, the defendant was entitled to notice of action Karslake was not called upon to reply. WILLIAMS, J.-I am of opinion that the judgment should be for the defendants. I will first consider the declaration as if it did not contain the allegation of a This was an action of trespass and fal-e imprisonright of passing over the waste, and I think on autho-30, ss. 24, 28 and 41 (Malicious Trespass Act). The ment. Plea, not guilty by statute 7 & 8 Geo. 4, c. rity and reason that the declaration, so considered, is case was tried before Byles, J. at the last MonmouthThe averments are, that before grievance the shire assizes. defendants were seised in fee of certain waste lands, another man knocked, at a late hour on a Sunday It appeared that the plaintiff and and that a quarry was worked there by the licence of night, at the door of a public-house kept by a tenant the defendants. The declaration states further that of the defendant; the landlady answered them from a the waste is wholly uninclosed, and that the quarry window, and refused to let them in or give them retherein is situated near two highways, and is dangerous freshments. Plaintiff commenced throwing stones at to all persons who should accidentally deviate from the the window and broke some panes of glass. The highways, or who should happen to cross from one road landlady sent for defendant, described the men, and to the other. The complaint is not that the quarry is said it was the one with the stick did it. Defendant there, but that it is dangerous to those who should followed and overtook the men; he arrested both, accidentally deviate or cross, &c. I am of opinion and conveyed them to a that no duty was cast upon the defendants in this they were locked up for two hours, and next day public-house, where case. The law has been long settled, and was lately taken before a magistrate. confirmed by the decision in the case of Blyth v. It appeared the plaintiff was the man with the stick, who actually Topham, which fully settles the principle that if a threw the stone. No notice of action was given hole is made or continued near a highway, no action to defendant; on lies against owners of the land. Burns v. Ward no the trial it was submitted that he was entitled to it, and not having been given, doubt qualified the general doctrine so far, that where plaintiff could not recover. a public nuisance is caused, there an action will lie contended that, as defendant's tenant had directed the For the plaintiff it was against the person who created it. But in this case there arrest of two men, one of whom she knew was innocent, is nothing beyond a hole some distance from the highway, she could not suppose she was acting legally, and not so near as to amount to a public nuisance, though it is therefore did not come within the statute or give the so near that inadvertence would lead a person to fall defendant the benefit of it; that the arrest was not into it. It has long been established that these cir- justifiable, as the plaintiff was not "found committing cumstances give no right of action. The principle of the offence" by the party who arrested him. There Barnes v. Ward is, that if a road is dedicated to the was some suggestion of undue violence. The learned public, a precipice cannot be dug on each side so as to judge left three questions to the jury-first, did the render the road useless. A party cannot do that plaintiff commit wilful and malicious damage; secondly, without being guilty of a public nuisance. Now will did the defendant bonâ fide intend to arrest the inan the allegations vary this case? "All persons having who did the damage, and to act under the authority of occasion to cross and pass over the said land have been the tenant; thirdly, did he use more violence than was accustomed to go over," &c., "without interruption necessary. The jury found all three in favour of the from, and with the licence and permission of, the defendant. The learned judge thereupon directed a owners," &c. There is no allegation of a right, but nonsuit, reserving leave to plaintiff to move to enter a the mere statement of a fact, that persons were verdict for 51. allowed to go over without any complaint being made. But it cannot be said that the owners of the soil are Smythies now moved for a rule to that effect, or for a new trial.-The plaintiff was not found committing to be held accountable for accidents suffered by such the offence by the person who arrested. The defendant persons. Permission having been given, it must be taken | did not intend to act under the statute. [CHANNELL, Ex.] MEYERS AND ANOTHER v. RAWSON-WYATT v. WHITE. [Ex. Jan. 18.-WATSON, B. delivered judgment. This was a proceeding by scire facias against the defendant upon a judgment obtained against the trustees of the society called the Bradford District Industrial Flour Mill Society, established under the Industrial and Provident Societies Act of the 15 & 16 Vict. c. 31, to B. That is not necessary to a justification: Read v. Cohen, 13 C. B. 850.] The arrest was on a Sunday for an offence not indictable, and therefore could not be justified, even under a warrant : (Egginton's case, 2 Ell. & Bl. 717; stat. 29 Car. 2, c. 7, s. 6; Rex v. Myers, 1 T. R. 265.) The question of bonâ fides ought not to have been left to the jury: (Horn v. Thorn-legalise the formation of industrial societies, of which borough, 3 Ex. 846.) Cur, adv. vult. Nov. 24.--CHANNELL, B. delivered judgment.-In this case we are of opinion that there ought to be no rule. The action was for false imprisonment, the defendant justified under the stat. 7 & 8 Geo. 4, c. 30. [His Lordship then stated the facts.] The learned judge left to the jury the question whether the defendant had acted bona fide and under the belief that he had the authority of the female, his tenant, to arrest one or other of the parties, and they found for the defendant. The learned judge, as it appears to us, left the question to them properly, and in accordance with the authorities; and that being so, the finding disposes of that part of the application which goes to a new trial, and it disposes also of the rest of it, because the plaintiff could only be entitled to enter a verdict for himself, on the ground that every matter was found in his favour. The leave given by the learned judge was upon one point only, whether the plaintiff was "found committing" the offence within the statute. It was also objected that the arrest was on a Sunday. It is unnecessary for us to give an opinion on that point, or on the other points made on moving for the rule. It is enough to say we are of opinion that the defendant was entitled to notice of action, and as there is a plea on the record which raises the question, it is manifest the plaintiff cannot be entitled to set aside the nonsuit. Rule refused. There must therefore be no rule. the defendant was, and is alleged to be, a member; to which there was a demurrer. It was argued on the part of the defendant that there was no provision contained within the Act of Parliament to give any remedy against the individual members of the society, but that the only remedy on the judgment was against the funds of the society. By the statute of the 17 & 18 Vict. c. 25, it is declared "that it is expedient to vary the provisions of such laws (that is to say, the 15 & 16 Vict. c. 31, and 13 & 14 Vict. c. 115) in relation to these societies, so far as concerns the manner in which legal proceedings shall be carried on in any matter concerning any such society." By the 1st section it is enacted that the society shall sue and be sued in the name of the registered officer, and if there be no registered officer, then in the names of the trustees of the society." There being here no registered officer, the action is brought against the trustees. And then it provided by the 5th section that execution may go against the property of the society-which means the present property of the society, because it would cause inextricable confusion if you had to resort to, and find out, what property vested in the persons who were members at the time the contract was made. That is the object and purpose of the clause. It was argued that, according to the case of Harris v. Timmins, reported in the 4 M. & W. 510, they could not have execution against the members. That case only decides that against the nominal defendant, the registered officer, you cannot have execution, unless he is a member of that society. That was one of the classes of societies like joint-stock companies. It was argued that if he had been made a member of the society, then of course this nominal defendant would have been liable, like the others, to execution. The only question here is, what is the proper course to pursue as to members who are individually liable by scire facias. Now, it is quite clear, on looking at the 11th section of the 15 & 16 Vict. c. 31, this is put This was a declaration on a scire farias calling on beyond all question, because it says, 66 Nothing in this defendant to show cause why plaintiff's should not be at or the former Acts shall be construed to restrict in any liberty to issue execution against him as a member, to way the liability of members of a society established levy the amount of a judgment recovered by them under or by virtue or claiming the benefit thereof, to against the registered trustees of a society called "The the lawful debts and engagements of the society." Bradford District Industrial Flour Mill Society," esta-This case seems to have been, in fact, decided by the blished under the provisions of the Industrial and Provident Societies Act 1852. The writ recited that no registered officer had been appointed to be sued on behalf of the society pursuant to the Act, and that there was no property or effects of the society whatever to pay the amount of the execution, and that the defendant was a member of the society at the time when the debt in respect of which the judgment had been recovered was contracted, and still continues to be so. Jan. 16 and 18. MEYERS AND ANOTHER v. RAWSON. Industrial and friendly societies-Statutes 15 & 16 Vict. c. 31, and 17 & 18 Vict. c. 25-Liability of members. A scire facias lies against the member of an industrial and friendly society, constituted under the Act f 1852, to levy the amount of a judgment recovered | against the registered trustees, there being no property of the society to answer the claim. Demurrer and joinder. Mellish (with him Cockle) for the defendant.-The 17 & 18 Vict. c. 25, s. 5, makes the property of the society liable, but there is nothing in the Act to authorise the issuing of execution against an individual member, and the court will not give it unless the Act expressly provides for it. In the Banking and Jointstock Companies Acts the power is expressly given: (Harrison v. Timmins, 4 M & W. 510.) Field for the plaintiffs.-The 11th section of 15 & 16 Vict. expressly provides that the liability of members shall not be limited by the Act. Burton v. Tannahill, 5 E. & B. 800, is an express authority in our favour. Cur, adv. vult. case of Burton v. Tannahill, 5 E. & B. 800, where it was held that no action could be maintained against the members of a society of this kind, the only remedy being by a proceeding against them under the 17 & 18 Vict., and in the course of the discussion Crompton, J. is reported to have said, "Why may there not be an action against the officer, and then a proceeding against the individuals to obtain the fruits of the judgment?" Wightman, J.: "Just as in the case of joint-stock companies." Crompton, J.: "That seems the very object of these enactments." That observation of my brother Crompton we perfectly agree in, and therefore we give judgment for the plaintiff's. Judgment for the plaintiffs. Feb. 13 and 14. |