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1860.

ALLSOP

v.

ALLSOP.

EXCHEQUER REPORTS.

defendant. The only question is, whether there appears on the declaration a sufficient statement of special damage. This is one of a large class of cases in which, if such damage were allowed, it might be alleged, such as actions for malicious arrest and the like. As special damage, it is of an entirely novel character. It has long been established that special damage, to constitute a ground of action, must be the natural consequence of the wrongful act; and it is not desirable that any new rule on this subject should be adopted.

Judgment for the defendant.

April 23.

PRICE v. TAYLOR and FISHER.

A promissory DECLARATION.—That the defendants, together with

note was made in the following form:"Midland Counties Building Society, No. 3. Birmingham, March 12, 1858. Two months after demand in writing we

promise to

pay to T. P. one hundred

pounds with

interest, &c., for value re

ceived. W. H. and J.T., trustees.

W. F.,

secretary.— Held, that the

parties who

signed the note

one W. R. Heath, on the 12th of March, 1858, made their
promissory note in writing now overdue, which note is in
the words and figures following, that is to say:—

"Midland Counties Building Society, No. 3.
"March 12, 1858.

"Birmingham.

"Two months after demand in writing we promise to

pay to Mr. Thomas Price the sum of one hundred pounds, with interest after the rate of six pounds per centum per annum, for value received.

"£100."

"W. R. Heath,

"John Taylor, Trustees.
"W. D. Fisher, Secretary."

Averments: that the signatures John Taylor and W. D.

were personally liable upon it, and that the right of the holder to sue them was not affected by the 6 & 7 Wm. 4, c. 32, and the 10 Geo. 4, c. 56, s. 21.

Fisher attached to the said note are those of the defendants respectively that, after the making of the said promissory note, the plaintiff duly demanded in writing of the defendants the payment of the said sum of 100l. with interest for the same after the rate aforesaid: that two months after the making of the demand had elapsed before suit; yet, that the defendants have not nor hath either of them paid, &c.— Second count, for money due in respect of monies lent, for interest, and on an account stated.

Plea, by the defendant Taylor:-That the several contracts in the declaration mentioned, and each and every of them, were made and entered into by a certain building society, whereof the defendants and divers other persons, at the time of the making of the said contracts, were and are members, that is to say, the No. 3, Midland Counties Building Society, duly established under and by virtue of the provisions of an Act (6 & 7 Wm. 4, c. 32), for the regulation of building societies, and all other statutes in that behalf, the rules of which said society were duly certified and allowed, and all other matters and things required by the statutes duly performed in pursuance of the said statutes, to constitute the said society a building society, within and subject in all respects to the provisions of the said Acts; and the said contracts were not, nor was any or either of them, made with the defendants otherwise than as members of the said society, together with the said other members; and that at time of the commencement of this suit divers persons, of whom the defendant W. D. Fisher was not one, were trustees of the society, duly appointed in all respects as required by the Acts by the rules of the society, and liable by virtue of the said Acts to be sued as such upon all the contracts of the society.

To this plea the plaintiff demurred.

1860.

PRICE

v.

TAYLOR.

1860.

PRICE

v.

TAYLOR.

Quain, in support of the demurrer.-The Acts regulating building societies do not empower them to make promissory notes or accept bills of exchange. The 6 & 7 Wm. 4, c. 32, s. 4, enacts that the provisions of the 10 Geo. 4, c. 56, "so far as the same, or any part thereof may be applicable to the purpose of any benefit building society, and to the framing, certifying, enrolling and altering the rules thereof, shall extend and apply to such benefit building society, and the rules thereof, in such and the same manner as if the provisions of the said Acts had been herein expressly re-enacted." The 10 Geo. 4, c. 56, which is "An Act to consolidate and amend the laws relating to Friendly Societies," by section 21 enacts, that "all real and heritable property, monies, goods, chattels and effects whatever, and all titles, securities for money, or other obligatory instruments, and evidences or muniments, and all other effects whatever; and all rights or claims belonging to or had by such society, shall be vested in the treasurer or trustee of such society for the time being, for the use and benefit of such society and the respective members thereof, &c., and also shall, for all purposes of action or suit, as well criminal as civil, in law or in equity, in any wise touching or concerning the same, be deemed and taken to be, &c., the property of the person appointed to the office of treasurer or trustee of the society for the time being, &c., and such person shall, and he or she is hereby respectively authorized to bring or defend, or cause to be brought or defended, any action, suit, &c. touching or concerning the property, right, or claim aforesaid, of or belonging to or had by such society, provided such person shall have been thereunto duly authorized, &c.; and such person so appointed shall and may, in all cases concerning the property, right, or claim aforesaid of such society, sue and be sued, plead and be

impleaded in his or her proper name as treasurer or trustee of such society without other description." But that section does not affect the note declared on, which is not the promissory note of the society but of the individuals who made it. A person who draws or accepts a bill, or makes a promissory note, is liable on the instrument unless it distinctly shews on the face of it that he means to disclaim any personal liability. In Mare v. Charles (a) a bill, purporting to be "for goods supplied to the adventurers in the Hayter and Holne Moor Mines," was addressed to the defendant and accepted by him in the following form:-"Accepted for the Company, William Charles, Purser." The defendant, who was purser of the mining company and not one of the adventurers, was held to be personally liable on the acceptance. Healey v. Story (b) and Penkivil v. Connell (c) were decided upon similar principles. In the present case neither the building society nor any other person is liable on the note if the defendants are not. The note does not purport to be made on behalf of the society, and therefore, in order to shew that the defendants are not liable, they would have to give parol evidence to contradict

the note.

Gray, in support of the plea.-It is admitted by the demurrer that the contract was with the building society, that is, if such a contract can have a legal existence. First, it is said that the society has no power to raise money on bills or notes. Secondly, that the note does not purport to be a promise on behalf of the society. If these objections were removed, it is not suggested that the society would not be liable. Now it may well be that these societies borrow money. They are entitled to make rules for

1860.

PRICE

v.

TAYLOR.

(a) 5 E. & B. 978.

(b) 3 Exch. 3.

(c) 5 Exch. 381.

1860.

PRICE

v.

TAYLOR.

their own government. They may become debtors and give a promissory note for the amount of their debt. Their object is to enable the members to build houses. The primary fund for this purpose is raised by subscriptions, but they may make rules to forward that object by other means. One mode is by making advances to their members. Why should they not borrow money to constitute an advance fund? It may be that the members are entitled to advances at particular periods at which subscriptions, though due, are still unpaid. Why should not the society borrow to enable them to make the advances at the proper time? If this promissory note is not illegal the first objection fails. Then, as to the second, the contract is with the company. [Martin, B.-The note does not purport to be the note of the Midland Counties Benefit Building Society.] The promise to pay is by the trustees of the society and it is countersigned by the secretary. A note in that form binds the society: Forbes v. Marshall (a). The enactment of the 10 Geo. 4, c. 56, s. 21, that the trustee "shall and may, in all cases concerning the property, right, or claim of such society, sue and be sued, plead and be impleaded in his or her proper name as treasurer or trustee of such society," is imperative: Steward v. Greaves (b). [Wilde, B.-The enactment referred to relates only to the form of suing or being sued.]

POLLOCK, C. B.-I am of opinion that the plaintiff is entitled to judgment. The note is nothing more than what it purports to be, viz. the promise of the defendants, not of the society. The plea does not deny that the form of the contract is that set out in the declaration, but says it means something else. I think, however, that it is not competent to a defendant to plead that a written contract means something different from that which it purports. (a) 11 Exch. 166. (b) 10 M. & W. 711.

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