and providing for contribution between the latter. (a) An enrolment in the Court of Chancery is required of a memorial of the names of the trustees, directors, and officers; .and by the enrolment of a new memorial and the payment of a small fine in lieu of stamp duties, the securities may be from time to time transferred to the new trustees as effectually as if by actual conveyance. As a further facility, the secretary or actuary is appointed the attorney of the mortgage trustees to convey the mortgaged estates either before or after foreclosure by the order of the board of directors, or of three of the directors appointed for that purpose by the board, and whose receipt is made a good discharge for the consideration moneys for the conveyance. These latter provisions respecting the transfer of securities are extremely convenient, but appear to be not without conveyancing difficulties, as, if care is not taken, a prejudicial effect may follow the enrolment of a new memorial in the merger of charges or legal estates intended to be kept outstanding. 13. The recitals in private Acts of Parliament will not *be allowed to operate as it were by a side-wind, and without a clear [*146] intention expressed. Thus, when it was recited that the rules, and regulations, and provisions of the deed had been varied by resolutions of the company made in pursuance of powers contained in the deed, it was held that the recital must be taken to refer to resolutions legally made, and did not incidentally confirm illegal resolutions. (b)

14. When a company has obtained powers from the legislature for any particular purpose, it has been thought that it is bound to use them; and thus that, when a private Act had been obtained authorising a company to sue in the name of its public officer, in suing it was bound to sue in that manner.(c)

Questions have been repeatedly raised whether statutory powers for an officer to sue on behalf of the company authorises such a course where the contract to be enforced has been entered into with trustees on its behalf and is under seal, but in these cases an enlarged construction has been invariably adopted, and it has been held that they do so.(d)

*CHAPTER IX.

FRIENDLY SOCIETIES.

[*147]

1. As we have already seen, any institution enrolled under the Friendly Societies Acts, and making assurances on lives or on any con

(a) M'Owen v. Hunter, 1 Dru. & Walsh, 347.

(b) Stratford and Morton Railway Company v. Morton, 2 B. & Ad. 518.

(e) Steward v. Greaves, 10 M. & W. 711. As to the effect of permissive words in a private act, see Reg. v. The York and North Midland Railway, 17 Jur. 35, Q. B.

(d) Williams v. Beaumont, 3 Mo. & Sc. 705, 10 Bing. 260; Wills v. Sutherland, 4 Exch. 211.

tingency involving the duration of human life, upon one life or for any one person, to an amount exceeding 2007., is defined by the Joint-Stock Companies Registration Act to be a joint-stock company. Other societies, generally established for other purposes than assurance operations, although perhaps undertaking them to this limited extent, are, it is conceived, scarcely within the scope of this work, and the reader is referred for information concerning them to those which treat of friendly societies alone.

By the 13 & 14 Vict. c. 115, no society established after the 15th of August, 1850, is permitted to undertake Assurances for larger sums than 1007.; but, with certain exceptions, (a) the provisions of the preceding Acts remain in force as to all societies established under them.

2. The statute 10 Geo. 4, c. 56, repealed and consolidated a number of Acts of Parliament passed, since the year 1789, for the encourage. ment of friendly societies. By this Act any number of persons were allowed to form themselves into a society for the mutual relief of the members thereof, their wives or children, or other relations, in sickness, infancy, advanced age, widowhood, or any other natural state or contingency whereof the occurrence is susceptible of calculation by way of [*148] average; *and these objects were further defined and explained by subsequent Acts(b) to include, among other things, the lawful insurance of money to be paid on the death of the members to their husbands, wives, or children, kindred or nominees. The object of the repealed Acts appears to have been the encouragement of provident habits in the lower classes, and the diminution of the public burdens arising under the Poor Law. In this statute the legislature pursued the same course, by an act, as it were, of national bounty towards the poor, granting great and extended privileges to these societies. Their transactions were for the most part exempted from stamp duties; (c) they were permitted to pay their funds into the savings' banks and into the Bank of England, to the account of the national debt commissioners, on extremely favourable terms.(d) A priority was given to them in the payment of debts, in the event of the death, bankruptcy, or insolvency, &c. of their officers intrusted with the charge of their funds.(e) A special machinery was provided for the transaction of their business, the members of each society being empowered to frame rules for their government, (ƒ) which rules were to be certified and registered in manner appointed by the Act,(g) and were to be binding on the society, as, so to speak, its deed of settlement; (h) but, nevertheless, liable to alteration and amendment at general meetings, which were to be convened in manner therein appointed. (i) The property of each society was vested by virtue of the

(a) Sects. 3. 12. 41. 43.

(6) 4 & 5 Will. 4, c. 40, s. 2, 9 & 10 Vict. c. 27, s. 1. (c) 10 Geo. 4, c. 56, s. 37.

(d) 10 Geo. 4, c. 56, ss. 30, 31, 4 & 5 Will. 4, c. 40, s. 9.

(e) 10 Geo. 4, c. 56, s. 20, 4 & 5 Will. 4, c. 40, s. 12; Walker v. British Guarantee Association, 21 L. J. Q. B. 257. Ex parte The Amicable Society of Lancaster, 6 Ves. 98, s. c. 6 Ves. 802, 15 Ves. 280, 6 Madd. 98, 1 Beav. 508.

(f) 10 Geo. 4, c. 56, ss. 2, 3.

(g) Sects. 4, et seq.

(h) Sect. 8, Reg. v. Cotton, 15 Q. B. 569; Ex parte Norrish, Jac. 162. Sect. 9, Reg. v. Bannatyne, 2 Prac, Rep. 213, C. B.; Reg. v. Aldham and the United Parishes Insurance Society, 15 Jur. 1035. Q. B.

[*149]

Act in the trustee, *or treasurer, for the time being,(k) who was enabled to sue and be sued in his own name, while all disputes between the members were to be settled, either by reference to the justices acting in the county in which the society was established, or to ar bitrators appointed to act for the society, whose awards the justices were empowered to enforce, the choice of the two courses being in the first instance decided by the rules of the society.(7)

A variety of other provisions were also contained in the Acts, entitling and permitting among other things minors to insure, (m) application to be made to a court of equity by petition, with exemptions from fees, &c. ;(n) the registrar, to whom also an appeal was appointed for the settlement of certain disputes, (o) to order the transfer of stock standing in the name of a trustee out of the jurisdiction of the Court, &c. ;(p) the payment of certain small claims under 207. to the next of kin of a member, without the necessity of administration. (g) General accounts were to be prepared and delivered to the members on payment of a small fee, (r) and periodical returns, which were to be ultimately transmitted to the Secretary of State for the Home Department, were to be made by each society of its experience as to sickness and mortality. (s) By *a late Act it is provided, that the trustees of any friendly society, established [150]

under any of the Friendly Societies Acts, which shall deposit any portion of its funds with the national debt commissioners, shall furnish such accounts and returns relating thereto as the commissioners shall from time to time require. (t) Provisions were also included for the dissolution of the societies, with the consent of a certain portion of the members. (u) 3. So great were these privileges that they were soon taken advantage of by societies which insured sums of as large an amount as those which were insured by the oldest and most wealthy life assurance companies.(v) It is remarkable that so few were actually started for this purpose: but it is obvious that the intention of the Acts was to benefit the poor, not to create a new and more favoured class of assurance companies for the rich; and this presumed intention, from which it might have been inferred that they were not suitable to extensive operations, probably prevented it. On the formation of these associations, the loss to the public exchequer attendant upon their operations did not escape the attention of the legislature; and an Act was passed which took away from societies

(k) Sect. 21, s. c. 1 Barn. & Ald. 57; 6 Price, 131; 5 Barn. & Ald. 769.

(1) 10 Geo. 4, c. 56, ss. 27, 28, 4 & 5 Will. 4, c. 40, s. 7; Reg. v. Cotton, 15 Q. B. 569; Reg. v. Grant, 14 Q. B. 43; Hammond v. Bendshye, 13 Q. B. 869. Ít must be doubted whether this is a benefit, since in life assurance cases the question of dispute can scarcely be the quantum of the liability but its existence, while the arbitrators of the company must be very liable to a bias in its favour. Unless empowered by statute, parties cannot by contract oust the jurisdiction of the courts of law, although they may agree that arbitrators shall ascertain the measure of damages as a condition precedent to an action. Scott v. Avery, 8 Exch. 487. (m) 10 Geo. 4, c. 56, s. 32. (p) 9 & 10 Vict. c. 27, s. 17, and see 10 Geo. 4, c. 56, s. 16. (9) 10 Geo. 4, c. 56, s. 16, (extended to 50l., 13 & 14 Vict. e. 115, s. 40.) (r) Sect. 33.

(n) Sect. 17.

(t) 15 & 16 Vict. c. 65, s. 3.

(0) Sect. 15.

(s) 10 Geo. 4, c. 56, ss. 34, 35, 4 & 5 Will. 4, c. 40, ss. 1. 6, 9 & 10 Vict. c. 27, BS. 5, 6. (u) 10 Geo. 4, c. 56, s. 26. (v) Commenced for the most part by that astute body the Society of Friends.

assuring larger sums than 2007. upon any one life or contingency thẻ exemption from stamp duty, (w) and the privilege of investing in savings' banks and with the national debt commissioners, except as to such parts of the funds as might thereafter be received on account of assurances made previous to the passing of the Act.(x) This provision is still in force; but in an Act passed in the present session, enlarging the field of investment allowed to friendly secieties, it is enacted that any society availing itself of this extended privilege shall not *be entitled to [*151] invest any further portion of its funds with the commissioners. (y) 4. Nevertheless, on the withdrawal of these exemptions a compensation was provided, and it was enacted that a society thus deprived should be entitled to add to its rules "any rule or rules by which any member of such society should be empowered to nominate any person or persons, his or her or their executors, administrators or assigns, to receive any sum already assured or to be hereafter assured, by such members, or any part thereof; and every such nomination should be valid although the nominee or nominees should be a trustee or trustees for any other person or persons, or for any trust or trusts, or purpose or purposes whatsoever."(z) The word nominee is first found in the 4 & 5 Will. 4, c. 110, but this clause is much more extensive, and after its enactment the rules of the societies affected provided, as one of the objects for which they were formed, for the assurance

[*152] of money to be paid "on the death of the assurer to his or her

nominee, executors, or administrators," and a rule was added, "that every member might by a written instrument, according to such form as should from time to time be adopted, nominate any person or persons to be his or her nominee or nominees, and as such to receive and take the benefits, &c. arising from any provision assured to such member, until such nomination should have been revoked by the member granting the same; and any member might, by a like written instrument, nominate any person or persons, his, her, or their executors, administrators, or assigns, to receive any sum assured as aforesaid, or any part thereof,

w) 3 & 4 Vict. c. 73, s. 1. (x) Sect. 2, and see 13 & 14 Vict. c. 115, s. 43. (y) 16 & 17 Vict. c. 123, s. 1. By the 13 & 14 Vict. c. 115, s. 12, the trustees of any friendly society are authorised to invest its funds "in any savings' banks, subject to the provisions of the act in force relating to the same, or in any of the parliamentary stocks or public funds of Great Britain or Ireland, or at interest upon government securities, or in Bank of England stock, or in the stock or securities of the Honourable East India Company, or on mortgage of freehold, leasehold, or copyhold property, such leasehold being for a term of years absolute, of which not less than thirty years shall be unexpired, and such copyhold being copyhold of inheritance in Great Britain or Ireland, or on security of any heritable property, or in any chartered or other public joint-stock bank in Scotland, or in or upon the security of any county or borough rates authorised to be levied or mortgaged by any act of parliament, or on loan to any member of any such society on the security of any policy of assurance effected on his own life, provided that the amount of such loan shall not exceed the actual estimated value of such policy at the time such loan is made."

By the 16 & 17 Vict. c. 123, s. 1, the following modes of investment are added: "Also upon the security of any rates, tolls, duties, assessments, bonds, debentures, or other securities of any body or company incorporated by act of parliament or charter, which such body or company is authorised by such act or charter to raise, levy, or mortgage, or on the security of any policy or policies effected upon a life or lives of adequate value." (2) 3 & 4 Vict. c. 73, s. 3.

with a condition annexed that such nomination should not be revoked without the consent in writing of the nominee or nominees so appointed, his, her, or their executors, administrators, or assigns," and it was thereby provided that the nomination should be valid notwithstanding the nominee should be a trustee, and that his receipts should be good discharges. The rules also provided for the registration of nominations, and that members should not assign their policies. The policies themselves did not, it is believed, carry on their face the above provisions, but were made payable" to the party or parties entitled" to receive the sum assured at the time of the death, according to the rules of the institution.

5. The above is at least a sketch of the manner in which the scheme was carried out by one of the most important of these societies, and with which the others more or less coincided. The arrangement were evidently most convenient. By the first kind of nomination, namely, that without a condition, the assured possessed all the disposing power over his policy that an ordinary assured possessed by his will, with this greater advantage, that the execution of the nomination paper operated as a settlement, with a power of revocation, and the sum assured was therefore free from the fiscal incidents of a legacy, and further, to this extent, superior to any ordinary settlement by deed, in that it [*153] passed the legal or at least a statutory interest to the nominee; the nomination, with the condition, was adapted to carry out sales, mortgages, or settlements, and, when the transaction was so simple as to require no other deed, no stamps were required, these nomination papers not being considered to be provided for by the Stamp Acts. The novelty of the plan has given rise to much discussion. It has been objected that the nomination papers are inoperative as against creditors, even where a sale or mortgage is intended. This is, of course, a mistake. Whatever their legal effect, it is the contract and the consideration that bind such an interest in equity. When the consideration is voluntary, the nomination would be liable to the operation of the statute of the 13th Elizabeth, (a) although not, it is conceived, of the doctrine of imperfect gifts; while at the same time, if there were no evidence of the intention with which it was made, there would be a resulting trust for the assured, of whose personal estate it would form a part after its receipt by the nominee. So long, moreover, as the assured possessed any disposing power, it would be one which his assignees in bankruptcy might execute for the benefit of the estate. The above positions flow from the plain doctrines of equity; the exact legal operation of the nomination is more difficult to define, if, indeed, it would not be presumptuous to do so, when one of the greatest living authorities on such a point has observed in considering the above rule, "They stipulate that there shall not be any assignment of the policy, but a nomination only, the effect of which I do not understand."(b)

6. These privileges naturally attracted the attention of the other life offices, by whose representatives the government was advised, in the year

See post, Part II. Ch. 8.

Courtenay v. Courtenay, 3 Jo. & Lat. 531. Sir E. Sugden, Ld. C.