parish. There appears to have been no want of pecuniary honesty-but a mistaken course of action, to Mr. Gibbs' own disadvantage. There is no satisfactory explanation why twenty years elapsed without Mr. Gibbs exhibiting his accounts; though the select vestry did not ask it, Mr. Gibbs ought to have produced them, the parishioners having a right to information upon the subject. Mr. Gibbs must pay the costs of all parties to the suit, up to the hearing at the Rolls; the relator is to pay the costs of all the other defendants, (except the costs of the defendant Atkins), and to be repaid them by Mr. Gibbs. The defendant Atkins is neither to pay nor to receive costs. Now, as to costs since the hearing: Mr. Gibbs' accounts had been then seen, and the persons interested must be taken to have then known that he was not a debtor to the trust, and that the result of taking the accounts would not be of advantage to the parish. The relator chooses, however, to take the accounts into the Master's Office. From the date of the decree I give no costs on either side. With the consent of all parties, let the bill be (a) On an appeal by the defendant Gibbs, the Lord Chancellor affirmed the decree. 1847. ATT.-GEN. v. GIBBS. VOL. I. M D. G. S. 1847. March 17th. answer will not be ordered to ATLEE v. GIBSON. Exceptions to THE answer in this case was filed on January 27, and the plaintiff filed exceptions to it on the 23rd of February. On the 5th of March he obtained the usual order of reference, which, however, he did not serve till the 13th. He then served on the defendant the usual warrant to proceed upon be taken off the file because the order of refer ence is not served in due time. But if the plaintiff the exceptions, and the defendant's solicitor attended accordserves the order ingly at the Master's Office on the day appointed. after the time and obtains a warrant, the defendant is entitled to apply to the Court for his costs. Mr. Russell and Mr. Heathfield now moved, on the part of the defendant, that the order of reference might be discharged, that the exceptions might be taken off the file, and that the plaintiff might pay the defendant's costs occasioned by the warrant. They referred to Attorney-General v. Clark (a). Mr. Miller, for the plaintiff.—This application is unnecessary and improper. It has been decided, that the circumstance of the order not being served within the prescribed time does not render the order itself irregular, or entitle the defendant to have it discharged: Dalton v. Hayter (b): much less can it render the exceptions irregular, or form a ground for taking them off the file. Mr. Russell, in reply, referred to Hunter v. Capron (c) and Taylor v. Harrison (d). The Vice-Chancellor.-How do you distinguish this case in principle from Dalton v. Hayter? Mr. Russell.-The Lord Chancellor there said, at the end (a) 1 Myl. & Cr. 367. (b) 1 Phil. 515. (c) 5 Beav. 93. of his judgment, that the Master would have to decide whether the order of reference had been served in time or not. It was therefore uncertain in that case, whereas it is here incapable of dispute that the exceptions were not duly proceeded with. Besides, there had been no proceeding there in the Master's Office. The order had not been acted upon. The Vice-Chancellor wished to hear Mr. Miller upon the part of the motion asking for the costs of the warrant. Mr. Miller submitted that, as the order was not served within the term, the defendant ought not to have attended at the Master's Office, or taken any heed of the warrant. The Vice-Chancellor.-But is it not now settled that a party unnecessarily served is entitled to the costs of appearing? Mr. Miller.—That rule has only been established as to proceedings in Court. The VICE-CHANCELLOR.-The Master's Office is a very important part of the Court. I think that the costs occasioned by the exceptions after the service of the order, but not including this motion, should be paid by the plaintiff. Upon the authority of Dalton v. Hayter, the order of reference cannot be discharged, nor can the exceptions be taken off the file. I never heard indeed of taking exceptions off the file because they were abandoned. I give no costs of this motion. 1847. ATLEE v. GIBSON. 1847. March 4th. May 4th, 5th, & 25th. A bill filed by certain members of a part of an asso- pendent Order of Odd Fellows," (which consists of many corresponding CLOUGH v. RATCLIFFE. THE bill in this suit was filed by Elijah Clough, and four other persons, being members of the Loyal Highland Laddie lodge forming Lodge of the Independent Order of Odd Fellows of the Manchester Unity, on behalf of themselves and all other the members of the same lodge, except the defendants and such members of the said lodge as concurred with such defendants in the matters in the bill mentioned, against William Ratcliffe and other persons, being respecmany thousand tively officers of the Unity of the district and of the lodge, praying for a declaration that the exclusion of the plaintiffs from the lodge was illegal, and for an injunction to restrain the defendants with respect to the application of a sum in being excluded their hands belonging to the lodge. lodges and members,) against other members of the lodge, complaining of from the lodge, and praying for a declaration that such exclusion was illegal and void, and for an in junction to restrain the defendants from applying a sum of 1481. 38. 4d. otherwise than according to the rules of the lodge, and for an account (if necessary) of all the property and funds of To this bill the defendants demurred for want of equity, and for want of parties. By the statements in the bill, certain persons were alleged to have attended meetings of the lodge as members, but were not made parties to the suit. Mr. Rolt and Mr. Roundell Palmer argued in support of the demurrer. Mr. Russell and Mr. Hargrave, for the plaintiffs. the lodge, and a declaration of the rights and interests of the parties, and for all necessary directions for giving effect thereto, and for an injunction and receiver, and general relief :Held, on demurrer, not to be a case in which an injunction would be proper without other relief, or without view to other relief. Held also, that it does not belong to the functions of the Court to make a decree containing declarations of right alone, or, in such a case as the above, a declaration of right and an injunction only. Held, further, that the only relief sought, independently of this injunction, was such as the Court could not grant with the parties then before it; and that, as the defect could not be remedied without rendering this suit unmanageable, leave to amend ought not to be given. Quære, whether the above association is legal, and whether a court of equity will recognise a contract of association, which, although morally laudable, is, from the number of persons concerned in it or otherwise, of such a nature as not to enable any of the established judicatures of the realm to deal with it beneficially, or whether such associations must not be left to regulate themselves by a moral rule, without judicial interference. The Vice-Chancellor said, that, having regard to the particular allegations of the bill, it was demurrable, at least for want of parties, if not otherwise. His Honor gave leave to amend. The bill was accordingly amended, and the statements then were to the following effect:— That for above a century many thousand voluntary associations called Free Masons' and Odd Fellows' Lodges, and by other similar designations, had existed in Great Britain, consisting of prudent and benevolently disposed persons, chiefly of the lower orders of society, who have associated themselves together in distinct associations for the purpose of raising and maintaining by their own subscriptions separate permanent joint-stock funds, to be applied in defraying the medical expenses of their own sickness, and in affording temporary maintenance to their own families during sickness, also in paying the funeral expenses of deceased members of such associations, and contributing towards the maintenance of their widows and orphans: that, for better accomplishing the purposes aforesaid, all the members of such associations, who were resident near and intimately acquainted with each other, met together at weekly and other regular intervals to pay their several subscriptions towards the funds for the relief of sickness as aforesaid, and to receive applications for relief out of the said funds, and to inquire into and decide upon the expenditure thereof upon the purposes aforesaid: that the amount of the subscriptions to the said sick fund was wholly and exclusively regulated by such lodges separately, as well as the amounts to be allowed for the purposes of relieving the sick members; and that the said subscriptions, which generally averaged about 1s. per fortnight, but were liable to be increased or diminished according to the claims upon the said funds, were regularly paid by the members of every lodge to treasurers appointed by the 1847. CLOUGH v. RATCLIFFE. |