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HAVERFORDWEST COUNTY COURT.

LAW INTELLIGENCE.

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LAW INTELLIGENCE. Court of Queen's BJnch, June 7th, 1867, before Cock- burn, C.J., Blackburn, Meller, and Shee, J.J. Thomas, Official Liquidator of the Pembroke Doclc Mutual Benefit and Loan Society, No. 2, v. Davies Mr Ben T. Williams appeared tor the plaintiff, and Mr Hannen for the defendant. This action was brought in the County Court of Pem- (broke, to recover the sum uf L40 15s 7d, being the 1 oalance due for principal nnd interest upon a promissory note, dated the 17th day of August, lSGO, made by the defendant and two other persons to the Trustees of the above named society the defendant not being a mem- ber of the society. The society was established in the year 1859, for the purpose of lending to members and others sums of money repayable with interest, but was never enrolled, registered, nor certified under any of the Statutes relating to Joint Stock or other Companies. The society was, however, regulated by printed rules, a copy of which was delivered to each member on his ad- mission, and was binding upon him. In the year 1866 the affairs of the society became embarrassed, and in the month of November in that year an order was made by the Master of the Rolls for winding up the society, under the provisions of The Joint Stock Companies Act, 1862.' The plaintiff, Mr Thomas, was subsequently appointed Official Liquidator of the Society, and by an order of the Master of the Rolls, dated the 29th of May, 1866, all the property, real and persona!, of the society, became vested in the plaintiff as such official liquidator At the trial of the action in the County Court in Sep- tember last, the plaintiff was called as a witness, and produced the promissory note, the signature to which by the defendant was admitted by his counsel. The several orders for winding up the society—for appointing the plaintiff official Jiquiàator-and for vesting the property of the society in him were put in and read, and the plaintiff stated that the action was brought in his own name as official liquidator, in consequence of a com- munication he had recently had with Mr Marshall, the chief clerk of the Master of the Rolls. The plaintiff, on cross-examination, stated that the only means he had of ascertaining the amount due on the note was by calcu- lating and adding the interest to the principal, and deducting'from the total the sums which appeared to have been paid into the society by the member for whom the defendant was. surety in the no'e, but that he, the plaintiff, could not undertake to swear to the correctness of the entries in the book, or to say how much had really been repaid into the society by the member. The coun- sel for the defendant at the trial objected—first, that there was no proof of the plaintiff having obtained the authority of the Master of the Rolls to bring the action, which he contended was necessary unjer "rhe Com- panies Act, 1862.' Secondly, that the promissory note being made payable to the trustees Qf the society, or their order, the plaintiff should have sued in their names, and could not maintain the action in his own name and thirdly, that the balance claimed on the promissory note was not sufficiently proved. Whereupon the learned Judge of the County Court, after referring to s.s. 95, 96, 154. 199, 200, 203, and 204 of 'The Companies Act, 1862,' and to rule 7 of the rules made uuder sec. 1711 of the Act, nonsuited the plaintiff. The plaintiff then ap- pealed to the Court of Queen's Bench from the decision of the County Court. Mr Ben T. Williams, on the hearing of the appeal, stated the facts as above set forth, and said that the learned judge of the County Court relied a good deal on the wording of section 95 of the Act, which enacts that with the sanction of the Court' of Chancery the official liquidator may bring or defend any action. There was, however, a gre't difference between a registered and an unregistered company in this respect, The one can sue I and be sued in its official name, while the other can only assert any legal existence by means of trustees. On ac- count of that difference in their legal status the Act of 1862 contained a distinct class of provisions for the winding up of unregistered compades-which were in fact only extensive private partnerships. Section 203 provides that, as to unregistered societies, there should be a vesting order of the Court, whereby all the property of the society shall vest in the official liquidator, who might 'thereupon' bring or defend any action. The vesting order in the present case was roost complete in its terms. It ordered I that all the property, real, and personal, including all- interest, claims, and rights in. to, and out of property real and personal, and including such things in action as1 might belong to or be vested in the society, or to or in any rerson or persons in trust for or on behalf of the said society, and every part of euch property should vest in the said official liquidor.' Mr \Villiams then said that his first point on the first ground of nonsuit was, that, even assuming it was necessary in the case of a registered society to have the sanction of the Rolls, or his chief clerk, for the bringing of an action by the official liquidator, suchaanction was not neces- sary in the case of an unregistered society, where an order had been made vesting in the official liquidator all the property of the society and giving him full power on his own responsibility to bring and defend actions. [Blackburn, J: He is in the same position as an Assignee in Bankruptcy, and the old decisions on that point would apply. But I do not see what view the Judge of the County Court took on these sections of the Act.] Mr Williams: His view, my lord, was that it was necessary for me to produce the sanction, in writing, of the Master of the Rolls, before I could recover in the action. My second point is, that as a matter of fact the action was brought with the sanction and by the direction of the chief clerk of the Master of the Rolls, and in ac- cordance with the usual practice in the like cases —— [Cockburn, C. J.: Did you tell the Judge at the trial that you had the sanction of the chief clerk ? AirWilliams: Yes, my lord; but that it was not in wri- ting, r.nd when I was proceeding to prove the verbal sanc- tion given by the chief clerk, the learned counsel for the defence objected on the ground of its being hearsay evi- dence, and the learned judge sustained (he objection. Blackburn, J.: It is clear to my mind, subject to any- thing Mr Hannen may say, that the Vestry order is, of itself, sufficient to entitle the official liquidator to bring tho action Mr Williams: That being your lordship's opinion, I shall not prolong my argument upon that point. The second ground of nonsuit is, as I submit, utterly un- tenable. If it means that the plaintiff was not properly described by his official name, all that is necessary is to strike out the words John Thomas' a? surplusage, and we then have him described properly as I official liqui- dator.' If the meaning is that the action should have been brought in the names of the trustees of the society, that would be to entirely annul the object and effect of sec. 203 of the Act which enacts the vesting order, shall vo-tintheomdat all the property oi the society in- cluding 'things in action,' which the money due on the note b,- Mr Hannen intimated that he could not support this ground of nonsuit. Mr Williams Then with reference to the third ground of nonsuit, my contention is that having produced the promissory note, which the defendant admitted having signed, he, the defendant, ? as prima facie liable for the full amount secured thereby, although the plaintiff only asked for a less'sum. If the defendant says we have not allowed him all the money repaid to the society on the note, it was for him to prove that more had been pa d. Blackburn, J.. Of course, the onus was on him. Mr Williams What the defendant seemed to suggest was, that we ought to give credit for payments made by the members who had signed the note on account of their shares in the society. Credit was, in fact, given on the note for all the moneys so paid, but we were not obliged to do so, and might- have sued for the whoie. There is a case of Wright and Hickling, 2 Law Rep. C.P. «f^!?MeUrn' ^Ut ^0U neec' not 8° any case, Mr Williams, or Bay any more about it.' It is clear that the onus of proving that the debt was less than the sum secured by the note was upon the defendant and not I upon the plaintiff. Let us hear what Mr Hannen has to say about it. Mr Hannen: I have, my lords, waited to see if upon anything that mv learned friend might say, or upon anything that might fall from the C)urt, I could found an argument in support of the ruling of the learned Judge of the County Court upon either of the three points, but I have waited in vain. I do not think that either of the grounds of nonsuit can be sustained, and I therefore shull not waste the time of the Court by at- tempting to argue upon them. 'Ordered that the nonsuit be set ti-ide, and judgment entered for plaintiff for amount claimed, with costs, including costs of appeal. Attorney for the plaintiff, Mr William John, Haver- ford west. For the defendant, Mr W. Vaughan Jam(,- Haverfordwest,

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