2. Societies formed after 10 Geo. 4, or which have conformed to its provisions. 10 Geo. 4, c. 56. Payment to persons appearing to be next of kin declared valid. For payment of sums not exceeding 201, where members die intestate. Justices may hear cases of fraud, and punish by fine or imprisonment. Conviction. Warrant of distress (b). Sect. 23. "Whenever the trustees of any society established under this act, at any time after the decease of any member, have paid and divided any sum of money to or amongst any person or persons who shall at the time of such payment appear to such trustees to be entitled to the effects of any deceased intestate member, the payment of any such sum or sums of money shall be valid and effectual with respect to any demand of any other person or persons as next of kin of such deceased intestate member, or as the lawful representative or representatives of such member, against the funds of such society, or against the trustees thereof; but nevertheless such next of kin or representatives shall have remedy for such money so paid as aforesaid against the person or persons who shall have received the same." Sect. 24. "In case any member of any society shall die, who shall be entitled to any sum not exceeding twenty pounds, it shall be lawful for the trustees or treasurer of such society, and they are hereby authorized and permitted, if such trustees or treasurer shall be satisfied that no will was made and left by such deceased member, and that no letters of administration or confirmation will be taken out of the funds, goods, and chattels of such depositor, to pay the same at any time after the decease of such member, according to the rules and regulations of the said institution; and in the event of there being no rules and regulations made in that behalf, then the said trustees or treasurer are hereby authorized and permitted to pay and divide the same to and amongst the person or persons entitled to the effects of the deceased intestate, and that without administration in England or Ireland, and without confirmation in Scotland." Sect. 25. "For the more effectually preventing fraud and imposition on the funds of such societies, if any officer, member, or any other person being or representing himself or herself to be a member of such society, or the nominee, executor, administrator, or assignee of any member of such society, or any other person whatever, shall in or by any false representation or imposition fraudulently obtain possession of the monies of such society, or any part thereof, or, having in his or her possession any sum of money belonging to such society, shall fraudulently withhold the same, and for which offence no especial provision is made in the rules of such society, it shall be lawful for any one justice of the peace residing within the county (a) within which such society shall be held, upon complaint made on oath or affirmation by an officer of such society appointed for that purpose, to summon such person against whom such complaint shall be made, to appear at a time and place to be named in such summons; and upon his or her appearance, or, in default thereof, upon due proof, upon oath or affirmation, of the service of such summons, it shall and may be lawful for any two justices residing within the county aforesaid, to hear and determine the said complaint aceording to the rules of the said society, confirmed as directed by this act; and, upon due proof of such fraud, the said justices shall convict the said party, and award double the amount of the money so fraudulently obtained or withheld to be paid to the treasurer, to be applied by him to the purposes of the society so proved to have been imposed upon and defrauded, together with such costs as shall be awarded by the said justices, not exceeding the sum of ten shillings; and in case such person against whom such complaint shall be made shall not pay the sum of money so awarded to the person, and at the time specified in the said order, such justices are hereby required, by the three shillings received to the use of Bing. 477; 3 M. & P. 98). (a) See Sharp v. Aspinal, 10 B. & Cres. 47; 5 M. & Ry. 71, post, 179. (b) As to distresses under magistrate's warrant, see title "Distress under Justice's Warrant," Vol. I. 2. Societies formed after that act, or which have conformed to its provisions. 10 Geo. 4, c. 56. Commitment (a). Proceeding by indictment, &c. Proceedings necestion of society. sary for dissolu warrant under their hands and seals, to cause the same to be levied by distress and sale of the goods of such person on whom such order shall have been made, or by other legal proceeding, together with such costs as shall be awarded by the said justices, not exceeding the sum of ten shillings, and also the costs and charges attending such distress and sale, or other legal proceeding, returning the overplus (if any) to the owner; and in default of such distress being found, the said justices of the peace shall commit such person so proved to have offended to the common gaol or house of correction, there to be kept to hard labour for such a period, not exceeding three calendar months, as to them shall seem fit: provided, nevertheless, that nothing herein contained shall prevent the said society from proceeding by indictment or complaint against the party complained of; and provided also, that no party shall be proceeded against by indictment or complaint, if a previous conviction has been obtained for the same offence under the provisions of this act." Sect. 26. "It shall not be lawful for any such society, by any rule at any general meeting, or otherwise, to dissolve or determine such society, so long as the intents or purposes declared by such society, or any of them, remain to be carried into effect, without obtaining the votes of consent of five-sixths in value of the then-existing members of such society, to be ascertained in manner hereinafter mentioned, and also the consent of all persons then receiving, or then entitled to receive relief from such society, either on account of sickness, age, or infirmity, to be testiñed under their hands individually and respectively; and for the purpose of ascertaining the votes of such five-sixths in value, every member shall be entitled to one vote, and an additional vote for every five years that he may have been a member; provided also, that no one member shall have more than five votes in the whole; and in all cases of dissolution, the intended appropriation or division of the funds or other property of such society shall be fairly and distinctly stated in the proposed plan of dissolution, prior to such consent being given; nor Stock not divisible shall it be lawful for such society by any rule to direct the division or but for general distribution of such stock or fund, or any part thereof, to or amongst purposes of society. the several members of such society, other than for carrying into effect the general intents and purposes of such society, declared by them, and confirmed by the justices of the peace as aforesaid, according to the directions of this act; but that all such rules for the dissolution or determination of any such society, without such consent as aforesaid, or for the distribution or division of the stock or fund of such society, contrary to the rules which shall have been confirmed by the said justices at their sessions, and filed in pursuance of this act, shall be void and of none effect; and in the event of such division or misappropriation of the funds of such society, without the consent hereby declared to be requisite, the trustee, or other officer or person aiding or abetting therein, shall be liable to the like penalties as are hereinbefore provided for in cases of fraud." Penalties for ille gal dissolution or division of funds. Rules to be made disputes shall be directing whether settled by justices or by arbitra tion (b). Sect. 27. "Provision shall be made by one or more of the rules of every such society, to be confirmed as required by this act, 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 such of his Majesty's justices of the peace as may act in and for the county in which such society may be formed, or to arbitrators to be appointed in manner hereinafter directed; and if the matter so in dispute Appointment of (a) See in general as to commitments in execution, ante, Vol. I., title "Commitment in Execution." (b) It is to be observed, that the provisions contained in this section materially differ from the prior ones in VOL. III. the repealed statutes. (c) These provisions as to arbitration are imperative, and the remedy must be accordingly, except in cases of fraud as provided for by the 25th sect. (See Crisp v. Bunbury, 8 Bingh. 394; N arbitrators (c). 2. Societies formed after that act, or which have conformed to its provisions. 10 Geo. 4, c. 56. compliance with award. shall be referred to arbitration, certain arbitrators shall be named and elected at the first meeting of such society, or general committee thereof, that shall be held after the enrolment of its rules, none of the said arbitrators being beneficially interested, directly or indirectly, in the funds of the said society, of whom a certain number, not less than three, shall be chosen by ballot in each such case of dispute, the number of the said arbitrators and mode of ballot being determined by the rules of each society respectively, the names of such arbitrators shall be duly entered in the book of the said society in which the rules are entered as aforesaid; and in case of the death, or refusal, or neglect, of any or all of the said arbitrators to act, it shall and may be lawful to and for the said society, or general committee thereof, and they are hereby required, at their next meeting, to name and elect one or more arbitrator or arbitrators as aforesaid, to act in the place of the said arbitrator or arbitrators so dying, or refusing or neglecting to act as aforesaid; and whatever award shall be made by the said arbitrators, or the major part of them, according to the true purport and meaning of the rules of such society, confirmed by the justices according to the directions of this act, Award conclusive. shall be in the form to this act annexed (a), and shall be binding and conclusive on all parties, and shall be final, to all intents and purposes, without appeal, or being subject to the control of one or more justices of the peace, and shall not be removed or removable into any court of law, or restrained or restrainable by the injunction of any court of Justices to enforce equity; and should either of the said parties in dispute refuse or neglect to comply with or conform to the decision of the said arbitrators, or the major part of them, it shall and may be lawful for any one justice of the peace residing within the county within which such society shall be held, upon good and sufficient proof being adduced before him of such award having been made, and of the refusal of the party to comply therewith, upon complaint made by or on behalf of the party aggrieved, to summon the person against whom such complaint shall be made, to appear at a time and place to be named in such summons; and upon his or her appearance, or in default thereof, upon due proof, upon oath, of the service of such summons, any two justices of the peace may proceed to make such order thereupon as to them may seem just; and if the sum of money so awarded, together with the sum for costs, not exceeding the sum of ten shillings, as to such justices shall seem meet, shall not be immediately paid, then such justices shall, by warrant under their hands and seals, cause such sum and costs as aforesaid to be levied by distress, or by distress and sale, of the monies, goods, chattels, securities, and effects, belonging to the said party, or to the said society, or other legal proceeding, together with all further costs and charges attending such distress and sale, or other legal proceeding, returning the overplus (if any) to the said party, or to the said society, or to one of the treasurers or trustees thereof; and in default of such distress being found, or such other legal proceeding being ineffectual, then to be levied by distress and sale of the proper goods of the said party, or of the officer of the said society, so neglecting or refusing as aforesaid, by other legal proceedings, together with such further costs and charges as aforesaid, returning the overplus (if any) to the owner: provided always, that whatever sums shall be paid by any such officer, so levied on his or her property or goods in pursuance of the award of arbi By order (b). By warrant of distress (c). 1 M. & Scott, 646, S. C.; R. v. Trustees (a) By the 4 & 5 Will. IV. c. 40, s. 8, they may award payment to him of money, in case the society refuse to reinstate him. (b) As to the form of the order, see the cases, ante, 162, n., and post, title "Order," Vol. V. (c) A commitment could not be made in such a case. trators or order of any justices, shall be repaid, with all damages accruing to him or her, by and out of the monies belonging to such society, or out of the first monies which shall be thereafter received by such society." Sect. 28. "If by the rules of any such society it is directed that any matter in dispute as aforesaid shall be decided by justices of the peace (a), it shall and may be lawful for any such justice (6), on complaint being made to him of any refusal or neglect to comply with the rules of such society by any member or officer thereof, to summon the person against whom such complaint shall be made, to appear at a time and place to be named in such summons; and upon his or her appearance, or, in default thereof, upon due proof, on oath or affirmation, of the service of such summons, it shall and may be lawful for any two justices to proceed to hear and determine the said complaint according to the rules of the said society (c); and in case the said justices shall adjudge any sum (4) It is to be observed that the 27th section, supra, requires that provision shall be made by the rules of every society, whether reference of any matter in dispute shall be made to justices or to arbitraters. In case the reference provided for is to arbitrators, then magistrates had no jurisdiction under the 28th section, or any other enactment to decide the matter in dispute; and thas if the society refused to grant arbitrators, &c., there was no remedy, except perhaps by mandamus or in equity; to remedy this the 4 & 5 Will. IV. c. 40, s. 7, post, 186, giving magistrates jurisdiction in such a case, was passed. In Pike v. Carter, (3 Bing. 78; 10 Moore, 376; 4 D. & R. M. C. 145, S. C.), it was held, on the prior act, 33 Geo. III. c. 54, ss. 15, 16, that, to render a justice liable for overstepping his jurisdiction, where the rules of the society provided for a settlement of all dispates by arbitration, it was necessary that the objection to the jurisdiction should be made when the justice heard the charge. And see further as to the law on this subject, post, “Justices." The magistrates have no jurisdiction, if the rules of the society have not been daly confirmed and filed, (see R. v. Gilkes, 8 B. & C. 443; 2 M. & R. 454; 3 Car. & P. 52, S. C.), nor if they Lave been abandoned. And if it be doubtful whether the society be duly established or not within the acts, the court will not grant a mandamus to justices to compel them to interfere. (R. v. Godolphin, 3 N. & P. 488, 8 Ad. & Ell. 338, S. C., ante, 149). (6) Where a member of a benefit society complaining of relief having been improperly refused, applied for a summary remedy, under the 49 Geo. III. c. 125, s. 3, it was held, that the proceedings should have been before two justices resident in the county where the society was held. (Sharp v. Aspinal & Parker, 10B. &C. 47, 5 M. & R. 71). Et per Lord Tenterden, C. J., S. C.— "I am of opinion that this point is perfectly clear: the early part of the third section of the statute 40 Geo. III. c. 125, requires that, upon complaint made, two justices residing in the county where the society is held, may issue a summons, and all the subsequent steps are to be before such justices. If the first proceeding is to be before two resident justices, the decision also must be before them." (c) As to the form of the order see ante, 162, n. By the 8th sect. of 4 & 5 Will. IV. c. 40, post, 187, if the justices order an expelled member to be reinstated, they may order a payment to him of money, in case the society refuse to reinstate him. The jurisdiction of the magistrates is wholly confined to the subject-matter of the complaint laid before them; and therefore, where, before the 4 & 5 Will. IV. c. 40, s. 8, it appeared that a party had complained to them that he had been deprived of the relief to which he was entitled, and the justices awarded, not only that the steward should give him such relief, but also that the party should be continued a member of the society, it was held that the latter part of the order was illegal. (R. v. Soper, 3 B. & C. 857 ; 5 D. & R. 669, S. C.) By the constitution of the society, it must appear the magistrates had power to make the order. Therefore, it seems, upon an indictment for not obeying an order of two justices, commanding the defendants, as stewards and principal officers of a friendly society, to restore A. B. as a member, it must be shewn, that, by the constitution of the society, the defendants had the power to restore him. (R. v. Inge, 2 Smith, 56). An indictment lies against the presi 2. Societies formed after that act, or which have conformed to its provisions. 10 Geo. 4, c. 56. Reference of dis. putes to justices if so directed by rules of society. 2. Societies formed after that act, or which have conformed to its provisions. 10 Geo. 4, c. 56. Orders of justices Savings banks. Funds may be subscribed into on receipts. of money to be paid by such person against whom such complaint shall be made, and such person shall not pay such sum of money to the person and at the time specified by such justices, they shall proceed to enforce their award in the manner hereinbefore directed to be used, in case of any neglect to comply with the decision of the arbitrators appointed under the authority of this act." [By the 4 & 5 Will. IV. c. 40, s. 10, post, 187, members of the society are made competent witnesses.] Sect. 29. "Every sentence, order, and adjudication, of any justices under this act, shall be final and conclusive to all intents and purposes, and shall not be subject to appeal, and shall not be removed or removable into any court of law, or restrained or restrainable by the injunc tion of any court of equity, and that no suspension, advocation, or reduction, shall be competent." Sect. 30, which enacts that the funds of any friendly society may be subscribed into a savings bank, is repealed by the 4 & 5 Will. IV. c. 40; and other provisions in sect. 9 of that act are substituted in lieu thereof. (See post, 186). Sect. 31. "It shall be lawful for any society established under aubank of England, thority of this act, to pay directly into the Bank of England any sum of money not being less than fifty pounds, to the account of the commissioners for the reduction of the national debt, upon the declaration of the treasurers or trustees of such society, or any two or more of them, that such monies belong exclusively to the society for which such payment is intended to be made; and the cashier or cashiers of the bank of England are hereby required to receive all such monies, and to place the same to the account raised in the names of the said commissioners for the time being, in the books of the Bank of England, denominated The fund for the friendly societies;' and in case any such declaration shall not be true, then, and in every such case, the sum so paid shall be forfeited to the said commissioners; and all the clauses and provisions of an act passed in the ninth year of his present Majesty's reign, intituled 'An Act to consolidate and amend the laws relating to savings banks,' with respect to the accounts of banks for savings, and the regulation of receipts, certificates, or order concerning the same, shall be applicable to the monies so paid into the Bank of England, under the Societies enrolled authority of this act, as if the same had been repeated herein; provided nevertheless, that every society formed and enrolled previous to the 28th day of July, 1828, under the provisions of an act made and passed in the said fifty-ninth year of his late Majesty's reign, intituled ‘An under 59 Geo. 3, c. 128, prior to 28th July, 1828, entitled to 3d. per cent. per diem. dent and stewards of a friendly society, So upon a complaint made on the part. (R. v. Gash, 1 Stark. N. P. C. 441). An order of justices requiring the stewards of a friendly society to readmit A. B. who had been expelled, recited, that it had appeared to the justices that the rules of the society had been enrolled at the quarter sessions; on the trial of an indictment against the stewards for disobeying such order, it was held, that the recital was not evidence of the enrolment of the rules. (R. v. Gilkes and others, 8 B. & C. 439; 2 M. & R. 454; 3 Car. & P. 52, S. C.). If the parties disobey the order when duly made, and due notice thereof given, they might be indicted. (See post, “Order," Vol. V.; R. v. Harris, 4 T. R. 202; R. v. Robinson, 2 Burr. 799; R. v. Fearnley, 1 T. R. 316). See form of indictment, post, (No. 14), p. 196. |