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and the plaintiff, as much bound as if he had paid the premiums directly to themselves, they knowing at the time on each occasion the place of Mr. Bennett's residence. The directors, taking the money, were and are precluded from saying that they received it otherwise than for the purpose and in the faith for which and in which Mr. Wing expressly paid it." [CRESSWELL, J.-He seems to have considered the office affected with notice.] But he treats that as immaterial. [CRESSWELL, J.-If you introduce into that case the fact which appears here, that the directors, immediately upon being made acquainted with the circumstances, repudiated the payment and their liability, would the Lords Justices have held the society liable?] The facts of the two cases, it is submitted, are as nearly parallel as possible. The directors, who must be assumed to be cognisant of all the facts, do not declare the plaintiff's interest forfeited until they have received the money. It clearly was not competent to them afterwards to elect to treat the omission to pay as a forfeiture: Hyde v. Watts, 12 M. & W. 254.† The case is analogous to those of conditions waived between landlord and tenant: Doe d. Bryan v. Bancks, 4 B. & Ald. 401. [WILLIAMS, J. ---That matter was very much discussed in Doe d. Gatehouse v. Rees, 4 N. C. 384 (E. C. L. R. vol. 33), 6 Scott, 161.] Although the directors could not properly exclude the plaintiff from the society after having so waived the forfeiture, still, as they have assumed to do so, he is entitled to adopt their act of exclusion, and to bring this *action. [*214 The jurisdiction of the court clearly is not ousted by the arbitration clause,--rule 102. Clear and distinct words are necessary for that purpose. If the plaintiff had applied for a mandamus to compel the directors to appoint arbitrators, he would have been met by the objection that he had ceased to be a member of the society. In Morrison v. Glover, 4 Exch. 430,† it was held that a rule of a building society requiring disputes between the society and any member thereof to be referred to arbitration, pursuant to the 10 G. 4, c. 56, s. 27 (incorporated with the 6 & 7 W. 4, c. 32), applies only to matters in dispute between the society and any member as member. The subject was also under discussion in Cutbill v. Kingdom, 1 Exch. 494.† By the 1st section of the 6 & 7 W. 4, c. 32, all fines are to be reasonable. Now, it clearly is not reasonable to provide that a member shall forfeit his rights, where nearly the whole subscription has been paid up, for one default.

Atherton (with whom was Joyce), contrà, was stopped by the court. CRESSWELL, J.-This appears to me to be a very plain case. By the 33d rule of the society, it is provided that any member not having executed a mortgage to the society, as thereinafter mentioned, continuing to neglect the payment of his monthly subscriptions for six consecutive monthly nights, shall thereupon cease to be a member of the society, and forfeit all his interest therein. It is said, that that rule does not opeN. S., VOL. I.-11

rate a forfeiture, until there has been a declaration of the forfeiture by a meeting of the directors; and that, before such declaration of forfeiture took place in this case, the forfeiture had been waived by the acceptance of the money. It seems to me, however, that there is no evidence of a waiver. The two directors who received the *money *215] on the seventh monthly night, had no authority to waive the forfeiture and the moment the money was handed over to the directors, it was returned and the transaction repudiated. The defendants are clearly entitled to judgment.

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WILLIAMS, J.-I am of the same opinion. I think there is not the slightest pretence for saying that there is anything unreasonable or contrary to law in the rule in question. CROWDER, J., concurred.

Judgment for the defendants.

In the Matter of SARAH GARDNER. Nov. 15.

Upon a motion to dispense with the husband's concurrence in a deed for the conveyance by the wife of her separate property, the affidavit must contain the addition or description of the busband.

KINGDON, on a former day in this term, moved for a rule to enable Sarah Gardner, a married woman, whose husband had deserted her in the year 1846, and of whose residence or existence she was ignorant, to convey her interest in certain property, without his concurrence. The affidavit was objected to by the Master, on the ground that it contained no addition or description of the applicant's husband. The motion was now renewed upon an amended affidavit, and

Granted.

216]

*In the Matter of a Plaint in the County Court of WORCESTER holden at STOURBRIDGE, between MEREDITH and WHITTINGHAM and Others. Nov. 7.

A friendly society enrolled its rules in 1832, under the 10 G. 4, c. 57, and shortly afterwards framed new rules, which were never enrolled or certified.

In an action in the county court, by a member against the stewards for sick pay,-Held, that the society was a subsisting society under the original rules, by virtue of the 18 & 19 Vict. e. 63, s. 2; and, consequently, that the county court had jurisdiction, under the 41st section of that act.

A PLAINT was levied in the Stourbridge county court at the suit of Meredith against the stewards of a society called The Seven Stars Friendly Society, under the circumstances stated in the following judgment which was delivered by the judge of that court on the 27th of October last :

« The plaintiff sought to recover 188., for three weeks' pay, from the stewards of a society called The Seven Stars Friendly Society, enrolled on the 4th of January, 1832, and certified by the proper officer on the 24th of February in the same year, and again certified by the registrar on the 5th of September last, according to the provisions of the 18 & 19 Vict. c. 63, s. 26.

"On the 18th of December, 1832, the society framed new rules, which have never been enrolled or certified, nor acted upon until recently, and consequently could not be read in evidence.

"The plaintiff claimed for sick pay under the original rules which were certified, and gave evidence of his sickness and compliance with such rules.

"For the defendants it was contended that the original rules were no longer in existence, by reason of their not being acted upon for a long series of years; and The Queen v. Lord Godolphin, 8 Ad. & E. 338 (E. C. L. R. vol. 35), 3 N. & P. 488; and Ex parte Norrish, Jacob, 162, were cited. The cases so relied on are, however, in direct opposition to the defendants' view of the question. If there were any doubt upon the subject, it is removed by s. 27, of the 18 & 19 Vict. c. 63, which directs in what *manner the old rules may be altered or rescinded. The 2d section declares that every friendly [*217 society held under former acts (now repealed) shall still be subsisting; and the 3d section provides that the rules of any subsisting society, which have been confirmed or certified under the repealed acts, shall be valid until the same shall be altered by s. 27, before referred to. Now, in this case, the society cannot be subsisting under rules which have never received the sanction of law, but it is still subsisting under those rules which have been duly enrolled and certified.

"For these reasons, I find for the plaintiff, for the sum claimed by him."

R. Kettle now moved for a prohibition, to prohibit the judge of the county court from further proceeding in the matter of the plaint, on the ground that that court had no jurisdiction, inasmuch as the society in question was not a subsisting friendly society within the meaning of the 2d section of the statute 18 & 19 Vict. c. 63. The affidavit upon which the motion was founded, stated, that in January, 1832, the society was enrolled, and its rules duly certified by the proper officer in February; and that, in December in the same year, those rules were altered; but that the altered rules had never been certified. The question is, whether this did not operate as an abandonment of the old society; the object of the present application being to resolve the doubt suggested by Lord Denman in the case of The Queen v. Godolphin, 8 Ad. & E. 338 (E. C. L. R. vol. 35), 3 N. & P. 488. In that case a friendly society enrolled its rules in 1794, under the statute 33 G. 3, c. 54: in 1804, alterations were made in them, but, by a neglect

for which the society was not to blame, the altered rules were never enrolled they were, however, acted upon, and the original ones disused, till 1835, when the omission to enrol *was for the first *218] time discovered. Upon a motion for a mandamus to justices to hear the complaint of a member who had been expelled in 1836, it was held, first, that the rules as altered could not legally be acted upon,secondly, that it was at least doubtful whether the original rules continued in force, and, consequently, that the court could not issue a mandamus to the justices, but must leave the applicant to his remedy in equity. The court, in giving judgment, say: "We are aware of the extreme inconvenience of putting the claimant in the present case to seek his relief in a court of equity: but, with the authority of Ex parte Norrish before us, and the serious doubts (to say no more) which we entertain whether the magistrates have the jurisdiction which the writ would command them to exercise, we should violate our well-established rules if we were to make the rule absolute; and, whatever may be the amount of inconvenience in the particular case, we perhaps do that which is more than proportionably convenient in general, if, by discharging the rule, we cause it to be generally understood that these societies cannot depart from their established rules, or neglect to comply with the statute in the mode of altering or repealing them, without exposing their property to danger, and themselves to great expense, loss, and inconvenience." [CRESSWELL, J.-The 41st section. enacts, that, "in all friendly societies established under this act or any of the said repealed acts, all applications for the removal of any trustee, or for any other relief, order, or direction, or for the settlement of disputes that may arise or may have arisen in any society the rules of which do not prescribe any other mode of settling such disputes, or to enforce the decision of any arbitrators, or to hear or determine any dispute, if no arbitrator shall have been appointed, or if no decision shall be made by the said arbitrators within forty days after application has been made by the *member or person claiming through or *219] under a member or under the rules of the society, shall be made to the county court of the district within which the usual or principal place of business of the society shall be situate; and such court shall, upon the application of any person interested in the matter, entertain such application, and give such relief, and make such orders and directions in relation to the matter of such application, as hereinafter mentioned, or as may now be given or made by the Court of Chancery in respect either of its ordinary or its special or statutory jurisdiction; and the decision of such county court upon and in relation to such application as aforesaid shall not be subject to any appeal." That seems to me to give the county court the same powers which Lord Denman thinks the court of equity had.] The word "subsisting" evidently was intended to override the whole clause. [CRESSWELL, J.

Would the alteration of a single rule make the society cease to exist?] The alteration of the rules was an abandonment of the society.

CRESSWELL, J.—I am of opinion that this is a subsisting society. The legislature has left it to the decision of the county court judge. The rest of the court concurring,

Rule refused.

*CHARLES BAYNTUN v. The Rev. HENRY BAYNTUN,

Clerk. Nov. 20.

[*220

Non-performance of a condition contained in a rule of court, is no ground for an application to rescind it.

On the 13th of April, 1852, the defendant made his promissory note for 1000l. payable four months after date to the plaintiff or order, and handed the same over to the plaintiff in trust for the separate use of his (the defendant's) daughter Lucy Ann, the wife of Alexander Sinclair Wiseman. This note was delivered to the plaintiff accompanied by the following memorandum :

"Major Charles Bayntun,-In consideration of the natural love and affection I bear to my daughter Lucy Ann Wiseman, I have this day signed and delivered to you, as trustee for my said daughter, my note of hand, dated this day, for the sum of 1000l., payable four months after the date thereof; such note, and the proceeds thereof when received, to be appropriated for the sole and separate use of my said. daughter, free from the debts, engagements, and control of her present or any future husband. Dated this 13th day of April, 1852.”

The 10007. note being unpaid, an action was brought upon it on the 7th of December, 1853; and on the 4th of October, 1854, a judge's order was obtained by consent, for payment of the amount of the bill, with interest from the 16th of August, 1852, and costs; and on the 6th of October judgment was signed, and a fi. fa. issued, which, being returned nulla bona, was followed by a writ of sequestrari facias, under which the Bishop of Salisbury duly sequestered the rents, tithes, and charges, oblations, obventions, fruits, issues and profits of the rectory and parish church of Bromham, in the county of Wilts.

On the 12th of October, 1854, the defendant by deed conveyed to his son Mortimer Bayntun and one John *Lister all his estate [*221 and effects, upon trust to pay and secure to the defendant a clear income of 300l. per annum, then to pay annuities of 501. per annum to each of his five children, and then to apply the surplus trust funds in the discretion of the said trustees to and amongst the defendant's said children.

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