The justices find in terms that the respondent was the master, and that the actual offender was the servant. By standing by and seeing the offence committed, the respondent afforded active encouragement to the actual offender. The justices clearly came to a correct decision. Appeal dismissed, with costs.

There was a second information against the same appellant, charging that he "on the 29th of December, 1862, at, &c., being then and there the charter-master of a certain coal-pit there situate, called The *18] Dark *Lane Pit, belonging to the Priors Lee Colliery, did not, in the exercise of his duties as such charter-master, give his first and chief attention to insuring the safety of the lives and limbs of the persons under his charge, contrary to the 20th special rule then in force for the regulation of the said pit and colliery," established pursuant to the statute.

The 20th rule is as follows:-"Every charter-master and underlooker, in the exercise of his duties, is hereby expressly ordered in all cases to give his first and chief attention to insuring the safety of the lives and limbs of those under his respective charge, and to suspend any or all operations attended with unusual risk, until he shall have received special directions of the manager, and to stop the working or use of any pit, engine, ropes, machinery, or apparatus that may not appear safe, until the removal of the danger."

The evidence was the same as in the former case; and the decision of the justices was as follows:-"The evidence in support of the information satisfied us that the defendant was at the pit on the morning in question, that he knew a breach of the rules was being committed, and that he had the power to prevent it. We are also of opinion, from the evidence, that the defendant did not give his first and chief attention to insuring the safety of the lives and limbs of the men under his charge, inasmuch as he did not suspend the operation of lowering the men when he knew there were more in the cage than the number allowed by the rules. We accordingly convicted the defendant, and ordered him to be imprisoned with hard labour for two calendar months, to commence at the same period as the former sentence which had been passed upon him."

The question reserved for the opinion of the court, was, whether the evidence set out in the case was sufficient to warrant the conviction.

*19]

*Hayes, Serjt., appeared for the appellant, and Welsby for the respondent.

WILLIAMS, J.-It follows from what the court decided in the last ease, that the evidence in this case warranted the conclusion that the appellant was guilty of the offence charged in the second information. BYLES, J.-The appellant was guilty of a plain breach of both the 15th and 20th rule. Appeal dismissed, without costs.

DEAN v. MELLARD and Others.

June 9.

By the 17 & 18 Vict. c. 25, s. 1, it was provided that all actions against any society established under the Industrial and Provident Societies Act, 1852 (15 & 16 Vict. c. 31), shall be commenced and prosecuted against the registered officer of the society, or against the trustees where there is no registered officer. These acts were repealed by the 25 & 26 Vict. e. 87, the 6th section of which provides that "the certificate of registration shall vest in the society all the property that may at the time be vested in any person in trust for the society: and all legal proceedings then pending by or against any such trustee or other officer on account of the society, may be prosecuted by or against the society in its registered name, without abatement:"

Held, that the effect of such repeal was to render the members individually liable to be sued in respect of a contract made by the society prior to the passing of the repealing act, for which no action was then pending.

THIS was an action brought to recover the price of goods supplied by the plaintiff to a society called "The Kidgrove Industrial and Provident Co-operative Society," of which the defendants were shareholders and committee-men, Mellard being chairman of the committee. Plea, never indebted.

At the trial before Bramwell, B., at the last Spring Assizes at Chester, it appeared that the society was established for the making and selling of bread and other articles, of daily consumption to its members and others; that it was duly registered on the 26th of December, 1862, under the 25 & 26 Vict. c. 87; that there were two trustees; that the affairs of the society *were under the management of [*20 the committee; and that the goods in question had been supplied in pursuance of a resolution of the committee, to which all the defendants were parties, and which was signed by the defendant Mellard as chairman.

The goods were supplied in 1861 and down to July, 1862. The 25 & 26 Vict. c. 87, passed in August, 1862; and this action was commenced in January, 1863.

On the part of the defendants it was contended that the 15 & 16 Vict. c. 31 being repealed by the 25 & 26 Vict. c. 87, the 13 & 14 Vict. c. 115, s. 13, which vested the property of the society in the trustees, remained in force as to provident societies, and consequently that the action should have been brought either against the trustees or against the society in its corporate character, under the 25 & 26 Vict. c. 87, s. 6, which enacts that "the certificate of registration shall vest in the society all the property that may at the time be vested in any person in trust for the society: and all legal proceedings then pending by or against any such trustee or other officer on account of the society, may be prosecuted by or against the society in its registered name, without abatement."

The cases of Butler v. Tannahill, 5 Ellis & B. 797 (E. C. L. R. vol. 85), and Myers v. Rawson, 5 Hurlst. & N. 99, were referred to.

On the part of the plaintiff it was insisted, that, by the repeal of the former statutes by the 25 & 26 Vict. c. 87, all members of these societies who but for such acts would have been liable, became liable individually for goods ordered by them; and that the provision in the 6th section of that act for suing the society in its corporate name merely is permissive, and applies only to proceedings then pending. The learned judge directed a nonsuit, reserving the plaintiff leave

to move to enter a verdict for 371. 6s. 6d. *if the court should be *21] of opinion that the defendants were liable personally; and also on the ground that there was no sufficient evidence that there were trustees, neither party to appeal except by leave of the Court of Common Pleas.

M'Intyre, accordingly, obtained a rule nisi, on the ground that "there was no sufficient evidence of the appointment of trustees, and that, according to the true construction of the statutes relating to friendly and provident societies, the defendants were under the circumstances personally liable to the plaintiff for the goods supplied." [WILLES, J., referred to Cockerell v. Aucompte, 2 C. B. N. S. 440 (E. C. L. R. vol 89).]

Morgan Lloyd and Vaughan Williams now showed cause.-The plaintiff was properly nonsuited. But for the 25 & 26 Vict. c. 87, this action would clearly have been misconceived; for, it was held in Burton v. Tannahill, 5 Ellis & B. 797, that an action for goods supplied for the use of a society established under the 15 & 16 Vict. c. 31, must, by the 17 & 18 Vict. c. 25, s. 1, be brought against the registered officers of the society appointed to sue and be sued, where there are such officers, and it cannot be maintained against an individual member of the society; and in Myers v. Rawson, 5 Hurlst. & N. 99, the Court of Exchequer pointed out that the only mode of obtaining satisfaction from a member of the society was by a sci. fa. after a judgment obtained against the registered officers or trustees, under the 17 & 18 Vict. c. 25. It is clear, therefore, that, but for the recent act, this action should have been brought against the trustees. The title of the act is, "An act to consolidate and amend the laws relating to industrial and provident societies." It recites and repeals the 15 & 16 Vict. c. 31, the 17 & 18 Vict. c. 25, and the 19 & 20 Vict. c. 40. *221 By s. 2 it enacts that all societies registered under the Industrial and Provident Societies Act, 1852 (15 & 16 Vict. c. 31), shall be entitled to obtain a certificate of registration on application to the registrar of friendly societies: and s. 6 enacts that "the certificate of registration shall vest in the society all the property that may at the time be vested in any person in trust for the society; and that all legal proceedings then pending by or against any such trustee or other officer on account of the society may be prosecuted by or against the society in its registered name, without abatement." There is no express provision for a case like the present, where the goods are supplied before and the action brought after the passing of the act against individual members of the society. At the time the liability was incurred, it was not competent to a creditor to sue the individuals: he must have proceeded against the trustees. But it is said that the repeal of the former acts which made it necessary to sue the trustees, imposes a liability upon the members of the society who were not liable at the time the cause of action accrued. [WILLIAMS, J.-It will be said that the repeal of the former acts leaves the members as they stood at common law.] No doubt: but, assuming that the right of: action against the trustees is taken away by the 25 & 26 Vict. c. 87, what is there to impose a personal liability upon the individual members?! [WILLIAMS, J.-It will be said that it is a question of procedure, not: of liability.] It is submitted that it is more than procedure: it is

imposing a liability which did not exist before,-which cannot be done by an ex post facto law, unless there be express words. [KEATING, J. -All that can be said, is, that the individual members were formerly privileged from being sued by some acts of parliament which have *since been repealed.] No hardship is imposed upon the plaintiff, for the funds of the society may be got at by a proceeding in [*23

equity, or by a winding up under s. 17.

M'Intyre and Griffits, in support of the rule.-It is an improper use of terms, to say that the members of these provident societies were not personally liable. They were always liable; but certain acts of parliament which are now repealed, regulated, whilst those acts remained in force, the mode of proceeding against them. This is clear from the judgment of Lord Campbell in Burton v. Tannahill. The former statute was a restriction on the common-law right of suing that restriction is now removed. If the plaintiff were left to his remedy under the winding up act, his recourse against the persons who contracted with him might be altogether gone. In Toutill v. Douglas, 8 Law Times N. S. 426, it was held that the trustees could not be sued since the passing of the 25 & 26 Vict. c. 87,-Cockburn, C. J., saying: "The act of 1852 and the subsequent acts having been repealed by the 25 & 26 Vict., which contemplated a new status for these societies by making them incorporated, the rights and liabilities of the societies under the repealed acts exist only for the purpose of registration under the new act. It is impossible to say that the repealed acts can any longer exist for the purpose of enabling them to sue or be sued in the names of their officers." The plaintiff, therefore, will be without remedy, unless he can maintain this action. WILLIAMS, J.-I feel considerable difficulty in dealing with this statute, because I am confident that the consequences which have resulted were never contemplated by the legislature. But, looking at its terms, and at the decisions which have taken place as [*24 well before as since its passing, I think the rule to enter a verdict for the plaintiff for the sum claimed must be made absolute. In order to arrive at a satisfactory conclusion, it is necessary to see how the law stood before the passing of the 25 & 26 Vict. c. 87, upon which the question arises. Creditors were then compelled to proceed in the first instance by action against the trustees or other public officers; but the individual members might ultimately have been made liable by proceeding against them by scire facias, if the corporate fund were insufficient to satisfy the judgment.(a) It appears to me that the legislature did not mean to interfere further with the common-law liability of the members of the society in respect of contracts made by the trustees. Then comes the statute 25 & 26 Vict. c. 87, the effect of which is to repeal the provisions of the former statutes which compelled the creditor to take the circuitous course I have pointed out, and leave it open to him to proceed against individual members as he might have done if those statutes had not (a) The 11th section of the 15 & 16 Vict. c. 31 enacted that "nothing in this or the said recited act (the Friendly Societies Act, 13 & 14 Vict. c. 115) shall be construed to restrict in any wise the liability of the members of any society established under or by virtue of this act, or claiming the benefit thereof, to the lawful debts or engagements of such society: Provided always, that no person shall be liable for the debts or engagements of any such society after the expiration of two years from his ceasing to be a member of the same."

passed. The result is, that each individual member is liable, and has his remedy over against the others for contribution. It has been suggested, on the part of the defendants, that the statute 25 & 26

Vict. c. 83 did not intend to cast upon individual members a lia

*25] bility which did not exist before, viz. of being sued *in the first instance. That argument would have been admissible if the legislature, instead of enacting, as they have done, in s. 6, that "the certificate of registration shall vest in the society all the property that may at any time be vested in any person in trust for the society; and all legal proceedings then pending by or against any such trustee or other officer on account of the society, may be prosecuted by or against the society in its registered name, without abatement," had gone on to say that" all claims and rights of action. existing at the time of the passing of the act" might be so prosecuted. But they have not said so: they have confined the indulgence to actions pending at the time of the obtaining of the certificate of registration. That must mean actions commenced before the passing of the 25 & 26 Vict. c. 87, because none could be commenced after against any but existing members. But then it has been contended that the trustees must still remain liable to be sued in respect of claims which were existing before the act came into operation. The case of Toutill v. Douglas, however, shows that no action for such a claim can be maintained against the trustees. Although it does not appear from the short statement of the declaration in the report of that case that the cause of action was alleged to have taken place before the passing of the 25 & 26 Vict. c. 86, yet the judgment of Cockburn, C. J., applies equally whether the cause of action accrued before or after that act passed, inasmuch as the non-liability of the trustees was held to be the necessary consequence of the repeal of the former statutes. We cannot, therefore, escape the consequence, that no action will lie against the trustees: the ordinary result, then, must follow, viz. that we must look at the repealed statutes as if they had never existed, and therefore the creditor is remitted to his common-law rights.

*WILLES, J.-I am of the same opinion. I much regret being *26] compelled to come to this conclusion, because it exposes individuals to liability to an action which they might fairly have supposed could only be brought against the general body of the society. But there can be no doubt, when the acts of parliament and the decisions are looked at, that the direction to proceed against the trustees was merely providing a mode of procedure which was equally for the convenience of the society and of its creditors, and not to take away the liability of the members. But, looking at the 25 & 26 Vict. c. 87, and seeing that it applies only to proceedings pending at the time of its passing, I regret that we have no alternative but to say that the interval, as to debts or claims which arose prior to registration under that act, remains unprovided for.

KEATING, J.-I am of the same opinion. The effect of the statutes for the regulation of industrial and provident societies was, to compel the creditor, for the mutual convenience of all parties, to have recourse to the funds of the society, by suing the trustees before proceeding (by scire facias) against the individual members. It was merely opposing an obstacle to the procedure, and was not intended to affect