with a view to a lease and not a purchase.' purchase." And Saunders v. Musgrave (a) shews that an agreement that a fixed rent shall be paid has the same effect, in giving the landlord a right to distrain, as actual payment of 1861. ANDERSON V. MIDLAND rent. (a) 6 B. & C. 524. Rule discharged. SINDEN and others against BANKS. DECLARATION, containing common money counts, by trustees of a friendly society, being a society entitled to enjoy all the exemptions and privileges conferred on friendly societies by stat. 18 & 19 Vict. c. 63., 66 every such society," "specifying whether a reference of every matter in dispute between any such society, or any person acting under them, and any individual member thereof, or person claiming on account of any member, shall be made to" "justices of the peace" or to arbitrators." The subsequent Act, 18 & 19 Vict. c. 63., which by sect. 1 repeals the former, "save and except as to any offences committed, or penalties or liabilities incurred, or bond or security given, or proceedings taken under the same, before the commencement of" the repealing Act, by sect. 40 enacts, that "every dispute between any member or members of any society established under this Act or any of the Acts hereby repealed, or any person claiming through or under a member, or under the rales of such society, and the trustee, treasurer, or other officer, or the committee thereof, shall be decided in manner directed by the rules of such society, and the decision so made shall be binding and conclusive on all parties, without appeal." The rules of a friendly society formed under stat. 10 G. 4. c. 56. provided that if any dispute should arise as to the legality or payment of any fine, money, or allowance, or as to the disqualification of any member at the time of his admission, or between any officer and member, it should be referred to the decision of the committee of the society, from whom there should be an appeal to justices. Refore July, 1855, when stat. 18 & 19 Vict. c. 63. came into operation, defendant, the treasurer of this society, received, as such, certain moneys, the balance of which he failed to pay over to plaintiffs, the society's trustees, and to recover which plaintiffs after that date brought this action. Held that, whether the case was governed by stat. 10 G, 4. c. 56. or by stat. 18 & 19 Vict. c. 63., the action lay: for that the plaintiffs' claim was not a dispute between the society and the defendant in his capacity as an individual member of it, which disputes alone were required by either statute to be dealt with under the society's rules, and otherwise than by action. Held, by Hill J., that stat. 18 & 19 Vict. c. 63. governed the case. 1861. SINDEN V. BANKS. entitled "An Act to consolidate and amend the law relating to friendly societies." That Plea. That, before and at the time of the commencement of this suit, the claim now made in the declaration was made by plaintiffs, as such trustees as aforesaid, on defendant as a member of the said society, and was a matter in dispute between defendant as such member and plaintiffs as such trustees as aforesaid, which was, at the said times aforesaid, and is by the rules of the said society directed to be decided otherwise than by action at law, to wit, by justices of the peace. the said society was, at the time of the passing of the said statute in the declaration mentioned, a subsisting society, which had been theretofore formed and established under the Acts thereby repealed, and the rules of which had been and were confirmed, registered and certified under the said repealed Acts, before the passing of the statute in the declaration mentioned; and which said rules of the said society were in force before and at the times of the existence of the said dispute and claims, and at the commencement of this suit, and still are in force and binding upon plaintiffs as such trustees as aforesaid, and on defendant as such member of the said society as aforesaid, by virtue of the statute in such case made and provided. Replication. That the claim in the declaration mentioned accrued after the passing and coming into operation of stat. 18 & 19 Vict. c. 63., entitled "An Act to consolidate and amend the law relating to friendly societies." That the said society, before and at the time when the said claim accrued, was a society established to enjoy and enjoying all the privileges and exemptions by the said Act conferred on societies to be established thereunder; and that the sections of the said Act in the 11th section thereof specially enumerated extended and were applicable to the said society, and the said claim was and is a claim against defendant as treasurer of the said society, for a balance appearing to be due from him upon the account last rendered by him as and whilst he was such treasurer, and for money since then received by him on account of the said society whilst he was, and as, such treasurer thereof, and not otherwise. General averment of performance of all conditions precedent. Rejoinder. That the said account rendered by defendant as such treasurer as aforesaid was not rendered or audited after the passing or coming into operation of the said Act to consolidate and amend the law relating to friendly societies, in the replication mentioned. Issue thereon. ment. At the trial, before Blackburn J., at the Sussex Summer Assizes, 1860, it appeared that the defendant had been for many years treasurer of the friendly society of which the plaintiffs were the trustees; which was formed under stat. 10 G. 4. c. 56., and the rules of which, so far as they are material, will be found referred to in the arguThe defendant resigned his office in April, 1856. The present action was commenced to recover from him the sum of 301., the balance of moneys received by him as treasurer. This sum was received by him in May, 1853. The trustees failing to procure payment of this amount by the defendant, his name was struck out of the books of the society, and remained so until 17th November, 1859, when he complained to justices, who ordered him to be reinstated. Proceedings were then taken against him in the County Court, 1861. SINDEN V. BANKS. 1861. SINDEN V. BANKS. but the plaint was subsequently removed by certiorari into this Court. The jury returned a verdict for the plaintiffs, and the learned Judge gave the defendant leave to move to set it aside and enter a verdict for him instead. J. Brown had obtained a rule to that effect. There is nothing in Denman now shewed cause. either of the Acts relating to friendly societies to debar the plaintiffs from maintaining this action. The last Act is stat. 21 & 22 Vict. c. 101., sect. 5 of which repeals the proviso in stat. 18 & 19 Vict. c. 63. s. 40., but does not affect the question, which depends upon the first clause in that section; whereby it is enacted that "Every dispute between any member or members of any society established under this Act or any of the Acts hereby repealed, or any person claiming through or under a member, or under the rules of such society, and the trustee, treasurer, or other officer, or the committee thereof, shall be decided in manner directed by the rules of such society, and the decision so made shall be binding and conclusive on all parties, without appeal." In the present case the rules of the society direct that disputes between the society and its members are to be decided by the committee of the society, with an appeal from them to justices. The plaintiffs' claim, however, is not such a dispute; the rule and enactment applying only to disputes between members of the society, as such, during their membership, and the trustees or officers of the society. Here, the claim made upon the defendant by the plaintiffs was not made upon him as a member of the society; and was, moreover, made after he had ceased to be a member. Nor does the case fall within the provisions of sect. 24, which enacts that an officer of the society guilty of fraud in withholding moneys may be brought before justices and made to repay them for no imputation of fraud was made upon the defendant at the trial. Sect. 1 repeals stat. 10 G. 4. c. 56., under which this society was formed; but with a saving of any offences committed, or penalties or liabilities incurred, under that Act, before the commencement of stat. 18 & 19 Vict. c. 63.; i.e., before 23rd July, 1855. Sect. 2 enacts that, notwithstanding such repeal, "every friendly society now subsisting, which heretofore had been formed and established under the" former Act, "shall still be deemed to be and shall continue to be a subsisting society, as fully as if this Act had not been made:" whilst, by sect. 3, the rules of such societies are to continue in force until altered or rescinded. The rules of the present society, here material, are the 29th and the 32nd. The 29th provides that "If any dispute shall arise as to the legality or payment of any fine, money, or allowance, or as to the disqualification of any member at the time of his admission, or between any officer and member," the matter shall be referred to the decision of the committee of the society, from whom there may be an appeal to justices. By rule 32, “The treasurer, trustees, or any other officer of the society, shall not be liable to make good any deficiency which may arise in the funds of the society, unless such persons shall have declared by writing under their hands, deposited and registered in like manner with the rules of the society, that they are willing so to be answerable:"-" provided that the trustees, treasurer and every other officer of the society shall be personally responsible and liable for 1861. SINDEN V. BANKS. |