Ex.] EARL OF DERBY v. THE BURY IMPROVEMENT COMMISSIONERS. tiff as reversioner, upon the determination of a a lease for lives, of a field or piece of land through and across which the defendants have carried a sewer, which they have constructed under the powers alleged to have been conferred upon them by several Acts of Parliament, in consequence of a former sewer having become a nuisance within the meaning of the Nuisances Removal Act (18 & 19 Vict. c. 121). There was formerly an open sewer from a point described as the junction, and descending southwards to the river Roche. At this point called the junction, three sewers belonging to the town of Bury converged, and constituted the nuisance in question, to remedy which the defendants constructed a covered sewer, carrying it for a small distance of about 100 yards along the site of the old sewer, and then diverging towards the west, made it to enter the piece of land in question, and pass through and under it for the space of about 300 yards to a highway at its south-western corner, whence it passed into another public sewer, which also, after a southerly course of about a mile, discharged itself into the river Roche. The defendants justified this act under the 18 & 19 Vict. c. 121, s. 22, and the question is whether they were authorised to carry this sewer through the close in question. I am of opinion that the defendants had no such authority, and that the plaintiff is entitled to the judgment of the court. Upon considering the several Acts referred to, it will be found that the defendants, as improvement commissioners of Bury, acquired the ownership, and became entitled to the control and management of the whole of the sewers within the district, subject only to the right vested in the local authority, to correct or remedy a nuisance existing in any sewer or drain under the provisions of sect. 22 of the Act before referred to. The right conferred upon the defendants under this 22nd section is merely "to lay down a sewer, or some other structure along any ditch, gutter, drain, or watercourse used for the conveyance of sewage, or some part thereof, or instead thereof where such drain has become a nuisance, and cannot be otherwise rendered innocuous," But the board have no general power to construct new sewers or to deal with old ones, except under the above words of the Act. That power is conferred upon the improvement commissioners, who, by the express language of sect. 102 of the Improvement Act, are authorised to construct whatever sewers and drains they may think necessary, not only in, under, and across the underground cellars and vaults within the district; but also, if necessary, to carry their sewers into and through any inclosed lands, or other places not being a public way, within the limits of the Act. But the exercise of this power is subject to the right of compensation in the owners and occupiers of the land, and subject also to the condition of giving a public notice of twentyeight days before the commencement of the work, and of appointing and holding a meeting of the commissioners to consider any objections which may be made by any one interested in the execution of the contemplated works. And further, if the commissioners should decide against the objection and persevere in the work, the party aggrieved has an appeal to the quarter sessions against their decision. The effect of the Acts considered together appears to be to confer upon the authorities constituted under the local Act a general power to make and maintain, repair, divert, or alter all drains and sewers, old or new, when, where, and as they deem necessary or expedient. But this power is subject to reasonable restrictions and conditions, and among them the all important condition that the owners of property taken or injured, and the ratepayers by whom [Ex. the cost of all these works must be borne, may be heard, in the first instance before the local authorities against the proposed works, and at last may appeal against their decision to another tribunal. But on the other hand the local authority, wherever, throughout England, the general Act is adopted, is invested with a specific but unlimited and unconditional power to put an end at once to any nuisance found to exist, and which may endanger or prejudice the public health; and for this purpose they may cover in or repair, or alter any drain or sewer, or make an old sewer into a new one, if necessary to do away with the nuisance. But this seems to be confined to cases of necessity, and to the operating locally and on the spot upon drains or sewers in which a nuisance has arisen. I think it cannot have been the intention of the Legislature to confer an unlimited and unconditional power upon the local authority to construct new sewers wherever they in their discretion may think fit, whether through or under inclosed lands or houses or buildings of whatever class or description or value, and at whatever amount of expense, without notice and without appeal, and without an opportunity to either ratepayers or proprietors even to appear and be heard against the contemplated works, however seriously they might affect their interest, their comfort, or their property. The 102nd section of the Act (9 & 10 Vict. c. ccxciii.) after providing that the commissioners may construct such and so many main and other sewers and drains as they shall think necessary, proceeds to enact that "In case it shall be found necessary for completing any of the aforesaid works, to build, carry, and continue the same into and through any inclosed lands or other places, not being a public way, it shall be lawful for the commissioners to build, carry, and continue the same into or through the lands or other places accordingly, making full compensation to the owners or occupiers thereof." Then, by sect. 110, "Before making any sewer where no common sewer previously existed, the commissioners shall give notice of their intention twenty-eight days at least before the commencement of the work." Such notice shall also set forth the time and place of holding a meeting of the commissioners to consider any objections made against such intended works, and all persons who shall deem themselves interested therein, or likely to be aggrieved thereby, shall be entitled to be heard before the commissioners at such meeting, and therefore the commissioners may abandon or make such alterations in the said intended works as they shall judge fit." And sect. 111 enacts, "That any one liable to contribute to the expense of any such work, or who shall otherwise deem himself to be aggrieved by the undertaking, may, within seven days next after the order of the commissioners, give notice of appeal to the next general or quarter sessions"; and upon entering into a recognisance, go before the quarter sessions, who may hear and determine the appeal. The defendants, therefore, in their character of commissioners, were authorised to construct the sewer in question, but only subject to the above conditions of giving public notice of holding a meeting at which the plaintiff could have been heard against the making of the sewer, with an appeal to the sessions in case they should have decided against him, and finally of making compensation if the sewer at length were carried through his land. It seems to me impossible to suppose that the Legislature with this Act, and all these provisions for the protection or indemnity of the owners of property in this district in full force and operation, could have intended to authorise these same commissioners, or any other body of persons who might have constituted the local Ex.] EARL OF DERBY v. THE BURY IMPROVEMENT COMMISSIONERS. [Ex. sewers in any place and through any description of property is conferred upon a public body. I am of opinion, on the contrary, that the Nuisances Removal Act should receive a large and liberal construction; and that it enables the local authority to resort to any means whatever which may be absolutely necessary to put an end to a nuisance; and this on the ground that the exercise of power without limit or restriction may in some cases be necessary to put an end to a nuisance which may be prejudicial or dangerous to health or to human life. And if the traversing of the plaintiff's enclosed field were necessary to the completely remedying or removing the nuisance in question, I should think that even that measure might be resorted to under the 22nd section. But it is quite obvious that this end may be accomplished by merely carrying away the accumulation of filth and converting the open drain into a covered sewer upon the same spot and in the same direction as that which now exists. It is, therefore, that I think that the local board have exceeded their powers in entering and cutting through the enclosed land of the plaintiff as complained of in this action. It authority, to do these acts to the injury of the owners of property, without any notice; without any opportunity of being heard against it; without any appeal, and without compensation; or at least, that the Legislature could have conferred so extraordinary a power not subject to any conditions at all without expressing that intention in clear and unambiguous language. It is contended, however, that the words, "the laying down of a sewer or some other structure along the same, or part thereof, or instead thereof," authorises the board of health to do as they have done, that is, to abandon the old sewer throughout the greater portion of its course, and then to construct a new sewer in any direction, or through any description of property which happens to lie within the limits of the Act. I think that these words simply mean that where a sewer has become a nuisance, the board may render it innocuous by either repairing or covering it in, or constructing a new and covered sewer instead of the open one which before existed. But it must be in the same line or course and as nearly as may be upon the site of the former sewer. If it become necessary it would not be unreasonable to read the words of the Act reddendo singula singulis as authorising the laying down of a sewer along the existing drain or part MARTIN, B.-I, unfortunately, have arrived at a thereof, or another structure instead thereof. The different opinion, and I will now proceed to read the section proceeds to declare that the board shall judgment I have written upon the case:-This is a have the same powers as to the entering lands for special case stated by virtue of an order of_nisi this purpose as are contained in sects 67 and 68 of prius. The questions for our opinion are two, first, the Highway Act, but the 5 & 6 Will. 4, c. 50, s. 67, whether the defendants were justified under certain to which reference is thus made, contains no Acts of Parliament in cutting and constructing a express direction as to the entering of lands, or how sewer; and, secondly, whether the defendants ought any lands shall be entered, but relating as it does to have given a notice under the 110th section of to the making of ditches, gutters, drains, and the Bury Improvement Act 1846. As to the second watercourses by surveyors of highways, enables question the learned counsel for the defendants them to carry such ditches or other works through abandoned their defence and relied solely upon the any lands or grounds adjoining or lying near to 22nd section of the Nuisances Removal Act for any highway. I cannot think that any authority England 1855, where no notice is required. is thus conferred upon the local authority to make was argued that the operation of the 22nd section any new sewer through the inclosed land of the was restrained by the Bury Improvement Act. Very plaintiff, which does indeed happen to be on one extensive powers to make sewers are thereby given, side bounded by a highway, but which might have and compensation is to be paid to the owners of been surrounded by other inclosed lands, and a enclosed lands through which they are made. By mile or miles distance from any highway at the 110th section notice is to be given of the intenall. It is to be regretted that the defendants tion to make them, and the defendants cannot should not have availed themselves of the ample justify under it, because they did not give the power they possess under the improvement Act requisite notice. But, in my opinion, the 22nd to construct the work in question, but as it section is not restrained by the local Act. The is admitted that no notice was given of their Nuisances Removal Act of 1855 is a general Act intention as required by sect. 110, they are applicable to all England. There is not one word compelled to resort to the Nuisances Removal Act, to show, either expressly or by implication, that its and to claim a right to enter and use the plaintiff's provisions are to be restrained by local Acts. The land for the purposes of the work, without affording Legislature of late years have passed a variety of him the opportunity which it is manifest that he is Acts for the removal of nuisances and prevention entitled to under the improvement Act, of being of disease, and have dealt very summarily with heard before the commissioners upon his objections what has been called in the argument "private to the work, and of appealing from their decision to rights." The object of the Act is declared to be the Court of Sessions in case it should have pro- to substitute more effectual provisions than then nounced against him. Looking, therefore, to the existed. The enactments of the 22nd section are general intent of these Acts of Parliament con- general. There is no reference to local Acts, and it sidered together, to the express provisions of the seems to me that its operation would be fettered improvement Act, and putting a fair and reasonable and crippled, and its construction and operation construction upon the words of the Nuisances rendered practically impracticable, if its plain and Removal Act, I am of opinion that the carrying unambiguous language is to be affected by the of the sewer through the inclosed land of the infinite number of local Acts in which provisions plaintiff was not justified, and that the plaintiff is are to be found relative to sewers. These provientitled to the judgment of the court. I have to sions are not uniform, and, if the construction add that my brother Channell concurs with me in contended for on behalf of the plaintiff be correct, this judgment. I have considered with very great one construction would be required to be given to attention the proposed judgment of my brother the 22nd section as regarded one town and another as Martin in this case, and I would observe that I am regarded another, if the provisions in their respecfar from thinking that the Nuisances Removal tive local Acts as to sewers were different, as in the Act is in any way controlled or restricted by great majority of instances they are. Great stress the Local Bury Improvement Act, which indeed was laid upon the provision in the local Act that is referred to only as showing the care and vigi- the owner was to receive compensation. By the lance with which the Legislature has guarded the 22nd section he is to be paid for the damages which rights of property where a general power to construct | he should sustain. I do not myself appreciate the Ex.] EARL OF DERBY V. THE BURY IMPROVEMENT COMMISSIONERS. difference. The sewer is only fan easement, and, if the damages are to be paid which the owners sustain from the making of it, I think it would include compensation if, indeed, in such a case compensation and payment for damage are not synonymous terms. In my opinion, therefore, the present case depends upon the 22nd section of the general Act, and upon it exclusively. The facts are very simple. The plaintiff is the owner in reversion expectant upon the determination of a lease for lives of some land in the neighbourhood of Bury which lies within the jurisdiction of the defendants who are the local authority within the meaning of the 22nd section. The land is a field in a farm used in agriculture, bounded on the north by the Bury and Rochdale turnpike road and on the west by Backlane. There is a brook or watercourse called Hartly Brook, which flows from the north across the Bury and Rochdale-road into the plaintiff's land and thence into the river Roche. Three sewers meet at a point in this road, and the sewage from the houses and premises in the neighbourhood there make a junction, and the sewage of all three flowed into the Hartly Brook, which was used for its conveyance to the river. Complaint was made to the defendants of this being a nuisance and the case finds that in point of fact it was a nuisance within the meaning of the Nuisance Removal Act, and, in the opinion of the defendants, could not be rendered innocuous without laying down a sewer. The defendants thereupon laid down the sewer which is complained of. The sewer runs for a short distance by the side of the Hartly Brook, and then crosses the plaintiff's land in a diagonal direction and is continued down Back-lane. The case finds that the new sewer intercepted and diverted away from the Hartly Brook the whole of the sewage of the three sewers through the land of the plaintiff, and is connected with a system of sewage and drainage made by the defendants communicating with the river Roche; that the nuisance could not be removed without constructing a new sewer, and that the course pursued by the defendants was the most inexpensive and convenient. There is a plan which shows very plainly what is above stated, and the question is whether the defendants were authorised to make and justified in making the new sewer. The 22nd section enacts that whenever a watercourse partly used for the conveyance of sewage from any house or premises is a nuisance within the meaning of the Act, and cannot, in the opinion of the local authority, be rendered innocuous without the laying down of a sewer along the same or part thereof, or instead thereof, the local authority shall, as they are thereby required to, lay down such sewer. Now the facts found in the special case are that there was watercourse partly used for the conveyance of sewage from certain houses; that it was a nuisance within the meaning of the Act; that it could not, in the opinion of the defendants (the local authority), be rendered innocuous without laying down the new sewer, which has been laid down in the least expensive and most convenient manner. Under such state of facts, what duty did the Act impose upon the defendants? In the very words of the section it is, that they should, and were thereby required to, lay down such a sewer, and that it might be made either along the old watercourse or part of it, or instead of it. It therefore seems to me that the defendants have done exactly what the section requires them to do. The section proceeds to enact that they were to have the same power as to entering lands as were contained in the 67th and 68th sections of the Highway Consolidated Act (5 & 6 Will. 4, c. 50), and in another part of the section it is enacted that the provisions in the section shall be deemed to be part of the law relating to highways. The 68th section forbids the a [Ex. owners or any other person to in any way interfere with drains made under the authority of the Act, and does not apply to the provision to enter lands; but the 67th section enacts substantially in the words of the 21st section of the Nuisances Removal Act, that for highway purposes highway surveyors shall have power to make drains through the lands or grounds adjoining or near to the highway upon paying to the owner of the land the damages which he shall sustain, to be settled and paid in the manner prescribed by the 51st and 54th sections. Now, assuming it to be necessary for the defendants to rely upon this part of the 22nd section for their justification, it seems to me that their power of entry is to enter upon any lands within their jurisdiction for the purposes of laying down the sewers, but that compensation is to be made to the owners for the damage they sustain. It is a true test in such cases as the present to frame a special plea of justification, and ascertain whether the facts found in the special case would prove it. It is my opinion they would, and that a plea so framed would be good on demurrer, and that there are no facts found in the case which would be an answer to it by way of replication. It was contended by the earned counsel for the plaintiff that a strict construction should be applied by reason that the power of entry into lands of a private individual for public purposes is an extreme exercise of legislative power. On the other hand it was contended by the learned counsel for the defendants that the object of the Legislature being the avoidance of public nuisances and the prevention of disease, a most liberal construction should be made. I have given the construction to the 22nd section, which it seems to me the natural and ordinary meaning of its words import, and applying it to the facts found in my opinion there is an answer to the action. I would observe, however, that if in the neighbourhood of towns the Legislature confer large and extensive powers over adjoining lands for the purpose of securing the comfort and health of the inhabitants, they may not unreasonably justify themselves by the consideration that the very neighbourhood increases the value in very many instances, and probably at this town of Bury one hundredfold ; and with this enormously increased value there is no just ground of complaint that the owner is subjected to somewhat more stringent provision for the public good than owners of property not so happily and advantageously situated. I have had the advantage of reading the judgment of the Chief Baron, which is concurred in by my brother Channell. The ground of difference between us is plain and manifest. I am of opinion that the enactment of a general Act relating to the sewage of towns expressed to apply to the whole of England, and in no way referring to local Acts, is to be construed according to the ordinary and natural meaning of the words used, and is not to be restricted or affected by local Acts. If the contrary view be correct, the inevitable consequence will be that, instead of the general Act operating uniformly and consistently throughout the kingdom, there will, as regards different towns, be as many different constructions as there are different local Acts varying in their provisions relating to sewers. Such local Acts are very numerous, and probably no two or three of them precisely correspond. The practical effect of this judgment of the court will be that the town of Bury will be deprived of the benefit of the Nuisance Removal Act for England 1855, by reason of the existence of a local Act in no wise inferred by the general Act. In my judgment, this is going beyond the legitimate function of judicial construction. Judgment for the plaintiff. Defendants' attorneys, Redsdale and Craddock, for Harper and Dodd. NISI PRIUS.] NISI PRIUS. REG. v. FREEMAN (Clerk). WESTERN CIRCUIT-EXETER. DEVON SPRING ASSIZES. Tuesday, March 10, 1868. (Before BOVILL, C. J. and a Special Jury.) REG. v. FREEMAN (Clerk). (a) Election by parishioners of a churchwarden- Claim of exemption-Appointment of another person—Conditional re-election-Mandamus against an archdeacon. The election by parishioners of a churchwarden, who claims exemption from the office, cannot be revived and confirmed by a vestry meeting after the election of another person, and that other's resignation on condition that the former would accept the office, although neither of them has been admitted by the archdeacon. At the trial of an issue raised upon the return to a writ of mandamus, which directed an archdeacon to admit the prosecutor as churchwarden of the parish of Halberton, it was proved that the prosecutor was duly elected by the parishioners on Easter Monday; that, being a justice of the peace, he claimed exemption, and refused the office; that another person was duly elected in his stead; that subsequently, the latter resigned his office on condition that the former would accept it; that a vestry meeting confirmed the previous nomination and appointment; and that the prosecutor withdew his claim for exemption, and accepted the office, but neither of them was admitted by the archdeacon: Held, that this confirmation of the appointment was a fresh conditional election at a time when the office was filled, and that the prosecutor was not duly elected churchwarden. This was an issue raised upon a return to a writ of mandamus, and sent down by the Court of Queen's Bench to be tried at the assizes. The writ of mandamus was granted upon the prosecution of Richard Hall Clarke against the Venerable Philip Freeman, Clerk, and Archdeacon of Exeter. After reciting that, by the 5 & 6 Will. 4, c. 62, s. 9, churchwardens must make a declaration to the archdeacon before beginning to discharge the duties of their office; and reciting that it had been throughout legal memory the custom of the parish of Halberton, of which the Rev. Canon Girdlestone is vicar, in the archdeaconry of the defendant, for the parishioners to elect both the churchwardens of the parish; and reciting that on Easter Monday, the 22nd April 1867, the prosecutor, Richard Hall Clarke, was duly elected, according to the aforesaid custom, to be one of the churchwardens of the parish of Halberton; the writ directed the defendant to administer the usual declaration to the prosecutor. [NISI PRIUS. the parish, but that point was not left to the jury, as the learned judge concluded the case by his ruling upon the other issue, viz., the due election of the prosecutor. It was proved that on the 22nd April the prosecutor and Mr. George Were were, under protest of Canon Girdlestone, the vicar, who was chairman of the vestry meeting, duly elected by the parishioners to be churchwardens of the parish of Halberton. At the same time the vicar nominated Mr. Martin as the minister's churchwarden of the parish. Mr. Clarke, being a justice of the peace, and unwilling to serve the office, subsequently claimed exemption, and refused to be churchwarden. On the 9th May at another vestry meeting duly held, Mr. Nathaniel Cook was elected churchwarden by the parishioners instead of Mr. Clarke. On the 16th May Archdeacon Woolcombe, on behalf of the defendant, held a visitation court at Cullompton, when Canon Girdlestone presented his nominee Mr. Martin, and the names of Messrs. Cook and Were were presented in writing by the parishioners. Mr. Woolcombe being unwilling to decide this dispute between the vicar and his parishioners, and also entertaining some doubt as to the validity of the election of Mr. Cook, which had taken place after Easter week, refused to admit any of the gentlemen nominated as churchwardens, and referred the matter to the defendant. On the 18th May another vestry meeting was duly held at Halberton, and the following entry was made in the vestry book: At a vestry meeting held this day, a letter was received from Mr. N. Cook, insisting to resign the office of churchwarden, provided RH. Clarke, Esq., would accept the office. It was moved and carried unanimously, that his resignation be accepted. And we the undersigned, in vestry assembled, do hereby confirm the previous nomination and appointment of R H. Clarke, Esq., and Mr. George Were, as churchwardens for the ensuing year; both of whom consent to accept Carried unanimously. office. (Signed by the Members of the Vestry present) On the 7th June Messrs. Martin, Clarke, and Were attended at the office of the defendant's registrar to be admitted as churchwardens. The registrar, in accordance with directions he had received from the defendant, offered to admit Martin and Clarke, but the latter declined to be admitted except with Were. The registrar therefore admitted Martin only. Upon this Were obtained from the Court of Queen's Bench a writ of mandamns directing the defendant to admit him as churchwarden; which writ was obeyed on the 16th Aug., but the defendant then refused to do what he had previously offered, viz., admit Clarke, on the ground that the offices of the churchwardens of Halberton were then filled. Clarke then applied to the Court of Queen's Bench as Were had done before, and the present issue was raised upon the return to the second writ of mandumus granted against the defendant. Prideaux submitted that upon these facts the prosecutor was not duly elected churchwarden of the parish. He had claimed exemption as a justice of the peace, and the first election on the 22nd April was therefore null and void. The election of Cook on the 9th May, although it did not take place in Easter week, was perfectly valid: (Birnie v. Weller, In the return to the writ, the defendant alleged that there was no such custom in the parish of Halberton as that recited in the writ, and that the prosecutor was not duly elected churchwarden of the parish. And the defendant stated that for these reasons he did not administer an oath or declaration to the said R. H. Clarke, as directed. The pleas by the prosecutor traversed the allega-3 Hagg. 474.) It followed therefore that, as Cook's tions in the return to the writ, and issue was joined. Coleridge, Q. C. and Bere for the prosecution. Prideaux, Q. C. and Lopes for the defendant. resignation of the office was only conditional upon Clarke's accepting it, the confirmation by the vestry of Clarke's previous nomination and appointment took place before the office was vacant; and further, the appointment of Clarke could not be revived Some evidence was produced as to the custom of after his resignation and that of his successor, (a) Reported by M. W. MCKELLAR, Esq., Barrister-at-law. without another election, which upon the minutes was not shown to have taken place. Moreover, NISI PRIUS.] REG. v. Dodd. [NISI PRIUS. Clarke's name was never presented in writing to the | Prisoner was indicted for forging a banker's pass book, archdeacon. Coleridge, contra, contended, that as neither of the nominees had been admitted by the defendant, the confirmation of Clarke's appointment on the 9th May was valid. As Cook resigned before his admission, his election was of no consequence, whether it was rendered void by not being in Easter week or not. The resignation of Clarke and his withdrawal of the resignation were neither of them submitted to the only authority which could have rendered them effectual; the first election on Easter Monday ought, therefore, to be supported. Besides, any informality in Clarke's appointment by the parishioners was cured by the defendant's offer to admit him on the 7th June. Prideaux, in reply, cited Mawley v. Barbet, 2 Esp. 687, in which Lord Kenyon said, "The second objection is, that the nomination of the plaintiffs, as churchwardens, on the 10th April, was rescinded, and a new election ordered; it being stated to be the usual way of proceeding at those vestries, to read over at the next meeting the resolutions of the preceding one, and to confirm or rescind them. I am of opinion that they had no such power, and that there is no necessity for the confirmation by the second vestry of what was legally done at the first. If the first was a legal vestry (and nothing appears here to impeach it), the election of the plaintiffs was legal. The plaintiffs became immediately legal officers, and under the statute 43 Eliz. invested with the temporal office of overseers of the poor, as well as a spiritual one." This could only have been a fresh election made at a time when the office was full. BOVILL, C. J.-I must hold that Mr. Clarke was not duly elected churchwarden by the parishioners of Halberton. The proceeding on Easter Monday was doubtless good, but he declined to avail himself of that appointment, and obtained exemption on the ground of his being a justice of the peace. Accordingly a valid election of Mr. Cook took place, and subsequently Mr. Cook resigned, on condition that Mr. Clarke would accept the office. The proceeding, therefore, on the 9th May was only a conditional election, which must have been void. The question of the custom cannot therefore be raised in this case, and the verdict must be entered for the defendant. Verdict for defendant. Attorneys for the prosecution, Terrell and Pethe rick. Attorney for the defendant, T. E. Drake. NORTHERN CIRCUIT. Forgery-Intent to defraud-Trades Union-Illegal society. The decision in Hornby v. Close (15 L. T. Rep. N. S. 563; 10 Cox C. C. 393) that a Trades Union, part of whose funds are applied to the maintenance of strikes, is an illegal society, and, therefore, cannot maintain a complaint against an officer of such society for embezzlement of its funds, applies only to proceedings taken under the Friendly Societies Act, and does not extend to an indictment. (@) Reported by JOHN KINGHORN, Esq., Barrister-at-Law. with intent to defraud. He was treasurer to a trades union, which was admitted to be within the decision in Hornby v. Close (ubi. sup.). It was contended that such a society, having no legal existence, could possess no funds, and, therefore, could not be defrauded: Held, that the objection of illegality was applicable only to the summary proceedings before magistrates provided by the Friendly Societies Act; but did not extend to deprive the society of its remedy by indict ment. Whether, upon an indictment for embezzlement, in which it would be necessary to prove the property, it could be objected that the society, having illegal objects, had no legal existence, and could not, therefore, possess property-quære? Indictment for forgery. First count charged that the prisoner, on the 28th Nov. 1867, did forge an accountable receipt for money, i.e., a bankers' pass-book, purporting to be the account of receipts and payments by Heywood, Brothers, and Co, bankers, in account with the "Operative House Painters' Association," &c. Second count charged the uttering, &c. Third count described the instrument as an acquittance for money, alleging the forgery. Fourth count charged the uttering. It appeared that the prisoner, William Dodd, had acted as treasurer to a trade society called the "Manchester Operative House Painters' Association," which was a society established partly for the relief of its members in cases of accident, and partly for providing assistance in the case of strikes. It was admitted on the part of the prosecution that it was an unenrolled society, and that some of its rules were in restraint of trade. The prisoner was elected treasurer to the society in the month of June 1862, and it was his duty to receive the week's contributions from the secretary, giving his receipt for them, and then to pay them into the bank of Messrs Heywood Brothers, and Co., in Manchester, with whom the society kept an account, and where they already had about 2001. deposited. His salary was 13s. per quarter, and for each visit that he paid to the bank either for the purpose of depositing or of drawing out money on behalf of the society, he was entitled to 2s. 6d. in addition to his salary. The books of the society were audited quarterly, and at these audits the prisoner continued to produce what purported to be the bank pass-book belonging to the society; and it showed that in the month of Nov. 1867 there was a sum of 8907. 10s. to the society's credit. The cash books also (one of which was kept by the prisoner and one by the secretary) confirmed this state of affairs, and showed that the prisoner had made forty-three lodgments on behalf of the society from the time of his appointment up to Oct. 1867. For some reason or other, however, one of the members of the society went to the bank and made some inquiries into the state of the account, and it was then found that the balance in the society's favour amounted to only 997., only nine lodgments (amounting to 2107.) having been made, and all these anterior to the year 1864; while on the other hand the sum of 370l. had been drawn out up to the beginning of 1867. The prisoner was thereupon taken into custody and charged with the forgery of the pass-book, and he then admitted that he had done so, and added that he had burnt the real one. It appeared that the prisoner had also kept a private banking account at the Messrs. Heywoods, and that he had erased his name from his own passbook, and substituted that of the society, and in this way had been enabled to pass off the forged book. These facts were proved, and one of the witnesses in cross-examination said: "The associa |