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upon the construction of this section it has been held that the society may lend such funds upon mortgage to any of its members, and that such security will vest in the trustees for the time being, Morrison v. Glover, 4 Exc. Rep. 431, 19 Law Jour. (Exc.) 20; Cutbill v. Kingdom, 1 Exc. Rep. 494.
By the 11th section the treasurer is to give security to the society for the due performance of his duties, but this will not make him liable for monies received on account of the society, and of which he may have been robbed by violence and without fault of his own, the obligation imposed by this section being that only of a bailee, Walker v. Guarantee Society, 18 Q.B. Rep. 277.
The 21st section of the above Act, vesting all the property in the trustees of the society, has been held to empower them to call for a transfer of the funds belonging to the society previously to its legal establishment, if a majority of the members agree to the society being brought under the Act, Yeates v. Roberts, 3 Dre. 171, 7 De Gex, M. & G. 227; Hodges v. Wale, 2 Weekly Rep. 65. The property, however, of a society in the hands of other persons does not vest in the trustees by their mere appointment, Dewhurst v. Clarkson, 3 Ell. & Bl. 194.
This section makes the continuing and new trustees joint tenants, and operates as a new appointment of all, Walker v. Giles, 6 C. B. Rep. 662; and no assignment or conveyance is necessary upon the appointment of new trustees, Morrison v. Glover, 16 L.J. (Exc.) 20; Reg. v. Cain, 1 Car. & M. 309. By this section no action can be brought or defended
by the trustees without the consent of a meeting; but in Doe v. Glover, 15 Q.B. Rep. 103, it was held that the defendant, a member, could not allege that the action was brought without such consent. Upon an action on a note made payable to the treasurer for the time being, it was held that it should have been brought by the treasurer at the time of the action, Timms v. Williams, 3 Q.B. Rep. 413. It was held in a late case, Hodges v. Wale, 2 Weekly Rep. 65, that a power by the rules to appoint trustees from time to time implied a power of removal.
In proceedings before justices under section 25, the complaint must be made and information laid within six calendar months from the time when the matter of such complaint arose, 11 & 12 Vic. C. 43, s. 11; 12 & 13 Vic. c. 70, s. 11; and by 2 & 3 Vic. c. 71, s. 14, and 11 & 12 Vic. C. 43, s. 34; the Lord Mayor of London and any Alderman sitting at the Mansion House or at Guildhall, may do alone any act which under this section may be done by more than one justice; and by 11 & 12 Vic. c. 43, s. 33, any one Metropolitan Police magistrate, and by 21 & 22 Vic. c. 73, a stipendiary magistrate, may act in the same way.
The summary power given by this section does not prevent proceedings by indictment, although the offender is a member of the society, Rex v. Hall, 1 Moody Cr. Cas. 474; nor take away the common law remedy by action, Sharpe v. Warren, 6 Price 131; Sinden v. Banks, 30 L. J. (Q. B.) 102. Trespass will not lie against a magistrate for anything done by him under this section, unless he is made acquainted with every fact necessary to enable him to determine when called on to act; as, for instance, where the rules directed disputes to be referred to arbitration, Pike v. Carter, 10 Moore 376.
The 12th section of the 4 & 5 W. 4. c. 40, giving priority of payment of debts, in case of any officer appointed to any office in the society, who may have in his hands, by virtue of his office or employment, any monies of the society, dying or becoming bankrupt or insolvent, &c., applies only to cases of debts in respect of money received by officers by virtue of their office, and independent of contract.
Thus it was held, upon the construction of the 10th section of the 33 Geo. 3. c. 54 (similar to this section), that the section did not apply to debts due from officers individually, and not in their official characters : Ex parte The Amicable Society of Lancaster, 6 Vesey 98, nor to money held by a person not appointed treasurer, or by the treasurer upon notes carrying interest; Ashley, Ex parte, 6 Ves. 441; Ross, Ex parte, ib. 802; Stamford Friendly Society, Ex parte, 15 Ves. 280; and see Buckland, Ex parte, 1 Buck. 514, Anon. 6 Mad. 98; nor to bankers appointed to receive money and remit to their London agent for the purpose of investment, Ex parte Whipham, 3 Mont. D. & D. 564; Harris, Ex parte, 1 De Gex 162. But where the bankrupt, on being appointed treasurer, was by the rules to pay interest on the amount in his hand, it was held that the section applied, as being money in his hands by virtue of his office as treasurer, and that the assignees were liable to pay over the amount to the
society, Ray, Ex parte, 1 M. & Ch. 537; and where the treasurer of a savings bank was partner in a bank into which all monies received by the manager were paid to the credit of the trustees, and interest allowed thereon, and the treasurer acknowledged from time to time the balance to be monies in his hands as treasurer, held, under a similar clause in a Savings Bank Act to that now under consideration, that such balance was to be deemed as in his hands as treasurer at the time of his bankruptcy, and the trustees entitled to recover the amount in full, Riddell, Ex parte, 3 Mont. D. & D. 80. In the case, however, of Ex parte Jardine, 10 Law Jour. N. S. (B.) 11, 1 Fonblanque 324, it was held that an actuary of a savings bank, who by the rules had no power to receive money, but was allowed to do so by the manager, could not be said to have received it by virtue of his office, and therefore that the trustees of the bank had no priority over the other creditors. Where a joint fiat in bankruptcy was issued against the treasurer of a savings bank and his co-partner, it was held, under the clause in the Savings Bank Act, that the bank could only claim a priority of payment in respect of monies due from the treasurer out of his separate estate, and that they had no claim against the joint estate, although the separate estate was not sufficient to pay the whole amount, Ex parte Appach, 1 Mont. D. & D. 83.
A treasurer of a Friendly Society took a security in the name of the society from a debtor of his own, retained the amount of his debt out of the society's money, afterwards debited himself annually in the
society's accounts with the interest of the amount for which the security was taken, and then became bankrupt. The security proving insufficient, and not being a security within the Friendly Societies Acts, it was held that the society was not deprived of the right of priority of payment by reason of not having taken steps to set aside the transaction, or to realise the security before the bankruptcy, Ex parte Burge, 1 Mont. D. & D. 540.
The Act does not provide for the case of a person employed in any office, but only of one appointed to an office; so where no bankers were appointed, but the money of the society was paid into a bank, it was held that the society was not entitled to priority, Orford, Ex parte, 1 De Gex, M. & G. 483.
The circumstance of the society not having audited the accounts of their treasurer was held not to deprive them of their priority, and it was also held that the filing and service of a Bill by the trustees to enforce such priority was a demand in writing within the meaning of the Act, Absalum v. Gethin, 11 Weekly Rep. 332.
Where a society had authorised two of the trustees and a director to borrow money from the bankers of the society upon their joint and several promissory note, and the bankers at the time of their bankruptcy held the note, and there was also a balance in their hands to the credit of the society upon its current account, it was held that the society was entitled to set off the amount of its balance against the sum due upon the note, Clennell, Ex parte, 9 Weekly Rep. 380.