C. P.]

THE GUARDIANS OF THE MALLING UNION v. GRAHAM.

was different from that of assistant overseer.
The parish ceased to be either the employers
or the paymasters. The parish ceased, too, to have
any power of dismissal, or to have the same control
over him. The mode of performing his duties was
different. In his second employment Assiter ceased
to be the servant of the parish, and became the ser-
vant of the board of guardians, subject to the regu-
lations of the Poor Law Board. It is argued that
the two offices were not incompatible with each other.
So far as collecting the poor rate was concerned,
they were certainly not; but in every other respect
they were. As to the mode of appointment, the
tenure, the employers, the mode and scale of pay-
ment, they differed altogether. There was an
appointment to two different offices. If the case
rested on that alone, I should say that the two
offices were incompatible with each other, and that
the first had ceased. But it is not necessary in point
of law to decide that, as I think that the first ap-
pointment was put an end to by resignation on the
part of the assistant overseer, and, looking at the
resolution of the vestry recommending that Assiter
should be re-appointed with an increased salary, and
the assent of Assiter to this recommendation, I come
to the conclusion that there was, on the one side, a
revocation, and on the other side a resignation of
the appointment held in the first instance.
There is thus an end to the case, as the
money sought to be recovered was not received
by Mr. Assiter in the course of the employment
held in the first instance. In the correspondence
between the guardians and the Poor Law Board,
the bond now sued on seems to be treated by the
Poor Law Board as the proposed security, and by the
guardians as the existing one. Under these circum-
stances I think that the defendant is entitled to our
judgment. But I go further, and think that, under
the 62nd section of 7 & 8 Vict. c. 101, the first em-
ployment ceased in 1866. It seems to me that that
section applies to an appointment made after the
passing of the Act, and that this appointment was
made after the passing of the Act. But it is said
that it was not made in pursuance of an order of the
Poor Law Board made after the passing of the Act.
The answer to that is that it certainly was not
made in pursuance of an order made before the
passing of the Act, as the order of the 18th Aug.
1836, did not authorise the appointment of Assiter
on the terms on which he was appointed. The
board of guardians proposed a different scale of
remuneration. They stated their reasons for the
proposal, and in the end the Poor Law Board assented
and issued a fresh order dated 11th June 1866.
This was subsequent to the passing of 7 & 8 Vict.
c. 101, and therefore both the order and the appoint-
ment were subsequent to the passing of the Act.
As to the order dated 11th June 1866, it was an order
for this appointment, and there was no order of the
kind before. This order was an appointment in
terms. It incorporated, so far as was necessary, the
order of 1836, that order having effect only as being
incorporated in the subsequent order. As to the
prior application of the guardians to the Poor Law
Board on the 4th April 1866, to appoint Mr. Assiter,
it was a compliance with the 62nd section. On the
making of the order of the 11th June 1866, by the
Poor Law Board, directing the guardians to make
the appointment, all previous appointments ceased,
unless otherwise directed. Therefore, under the
62nd section of 7 & 8 Vict. c. 101, the first appoint-
ment came to an end in 1866. On these grounds I
think that our judgment must be for the defendant.
WILLES, J., Concurred.

BRETT, J.-This is an action on a bond, by which the defendant, became surety for the performance

[C. P.

by one Assiter of the duties of assistant overseer,
and the breaches alleged are the non-performance
of the duties of that office. The defendant answers
that Assiter had ceased to be assistant overseer at
the time the breaches in question were committed,
and that he was guilty of the defaults in question,
when collector of poor rates and not when assistant
Overseer. On these pleas issue is taken. The
question, therefore, for our consideration is, whether
Assiter had ceased to be assistant overseer at the
time he committed the breaches of duty in the de-
claration mentioned. The breaches in question
took place after the 11th June 1866. On the part
of the defendant, it is contended that at that date
Assiter's duties and position were so altered, that
he, who had become surety for him as assistant
overseer, was relieved from his engagement. I am
clearly of opinion that Assiter's appointment as
assistant Overseer was not an appointment
for one year. There are three ways of putting
an end to such appointment - by resignation,
by revocation, or by the mutual consent of the
parties. On the facts stated, I think that the court
might well come to the conclusion that the appoint-
ment of Assiter as assistant overseer was put an
end to by mutual consent. I doubt however,
whether we have good ground for deciding that
question, as the case was not framed with a view to
raising it. If it had been, some facts might possibly
have been stated which would have given a different
complexion to the matter. I think however, that
our judgment must be for the defendant, as, besides
these modes of putting an end to Assiter's original
appointment, there is a provision in sect. 62 of 7 & 8
Vict. c. 110, by which, on an order being made by the
Poor Law Board appointing a collector, all previous
appointments cease, except when otherwise directed
by the Poor Law Board. I think, on the facts
stated, that the case falls within that section. It is
quite true that the guardians originally proposed
that Assiter should be appointed collector for poor
rates under the order of the Poor Law Board of 18th
Aug. 1836. But it was pointed out to them that
their proposed appointment of Mr. Assiter was not
in accordances with the terms of that order. A cor-
respondence then took place between the Poor Law
Board and the guardians. In that correspondence
the Poor Law Board pointed out, that, if the
guardians wished that Assiter should be remunerated
by a uniform poundage of 6d. instead of a poundage
of 4d. on sums over, and of 8d., on sums under 3l., they
must ask them to vary the order of 1836. The
guardians were desirous of fixing the payment at
6d., and they practically did ask the Poor Law Board
to order that Assiter should be appointed collector
at a poundage of 6d. An order was thus made by
the Poor Law Board in 1866, ordering the guardians
to make the appointment as desired. The 62nd
section of 7 & 8 Vict. c. 101, applies to a case where
such an order is made by the Poor Law Board,
on the application of the board of guardians. It was
in pursuance of this order that Assiter was
appointed, and the 62nd section enacts that, under
such circumstances, the prior employment shall
cease. I think then that after the making of this
order Assiter was only collector of poor rates. On
these grounds I think our judgment must be for
the defendant.

Judgment for the defendant.
Fearon, for H. D. Wildes, West Malling.
Attorneys for the plaintiffs, Fearon, Clabon, and
Norton and Son, Town Malling.
Attorneys for the defendant, Bradbury Norton, for

THOMPSON v. HILL-ALLAN v. MILLER AND OTHERS.

Demurrer and joinder in demurrer: A ground of demurrer being that the promissory note sued upon Robinson, Serjt., and Beasley, in support of the is not one upon which the parties signing it are perrule, were not called upon.

Ex.]

ALLAN v. MILLER AND OTHERS.

[Ex.

fendants. [BRAMWELL, B.-Is there not a recent case in which it has been decided that a building society may borrow money? Brown, Q. C.-Yes. The case is Laing v. Reed, before the Lord Chancellor and the Lord Justice in the Court of Appeal in Chancery, 21 L. T. Rep. N. S. 773; L. Rep. 5 Ch. App. 1; 39 L. J. 1, Ch.] This instrument does not, I contend, distinctly show that the defendants intended to sign as agents, which it should do if the defendants are to escape personal responsibility upon it. In Kelner v. Buxter and others, in the Common Pleas, 15 L. T. Rep. N. S. 213; 36 L. J. 94, C. P.; L. Rep. 2 C. P. 174, it was heli that the defendants were personally liable on an agreement signed by them on behalf of a joint-stock company of which they were promoters, and no subsequent ratification by the company could relieve them therefrom without the plaintiffs' assent. Lennard v. Robinson and others, 5 E. & B. 125; 24 L. J. 275, Q. B., and Mare and others v. Charles, 5 E. & B. 978; 25 L. J. 119, Q. B., are authorities to the same effect. Here, the only way in which this note can be made an available instrument is by holding the defendants to be personally liable; and if the court feel any doubt on the point, and think it not to be clear on the face of the instrument itself, the plaintiff is prepared to show by parol evidence what the real arrangement between, and the intention of, the parties to the note were, and so to clear up the ambiguity. [BRAMWELL, B.-The declaration alleges that the defendants made their promissory note, so unless they show it not to be, or that it cannot be, their note, why it is their note.]

affixed to it. It is contended for the defendants | view of the personal liability of the present dethat it is the note of the society, and not of the individuals. There never was any intention to bind themselves personally, and the note is drawn so as to effect that object. It is a question of intention. The present case is not distinguishable from a host of cases in which, under like circumstances, it has been held that the individuals signing the note were not liable personally. In Aggs v Nicholson and another, 1 H. & N. 165; 35 L. J. 348, Ex., where the defendants being two directors of a joint-stock company, incorporated under 7 & 8 Vict. c. 110, signed a promissory note in this form :-"Three months after date we, two of the directors of the A. L. A. Society, by and on behalf of the said society hereby promise to pay M. or order, &c., value received;" and this note was sealed with the society's seal, but not countersigned by the secretary in accordance with the Act, it was held that they could not be sued individually, and that it was binding on the company and not on the defendants; and, moreover, that the nonliability of the company was not the test of the personal liability of the parties signing the notes. Again, the case of Lindus v. Melrose and others, in which the judgment of this court was affirmed in error, 3 H. & N. 177; 27 L. J. 326, Ex., is a still more conclusive authority in favour of the defendants. It is an almost identical and undistinguishable case. There the note was, "We jointly promise to pay S., or order 6007, value received in stock, on account of the L. B. J. and H. Co. (Limited)," and it was signed by the defendants, he word "directors" being appended to their signatares, and it was countersigned by the secretary. This court held the note in that case not to be binding on the directors individually who signed it, and that decision was upheld in the Court of Exchequer Chamber. As Coleridge, J. there said, in delivering the judgment of the court of error, "Why should individuals signing as officers be supposed to make themselves personally liable without any apparent consideration?" Forbes v. Marshall, 11 Ex. Rep. 166; 24 L. J. 305, Ex., and a very recent case also in this court of Alexander and others v. Sizer, 20 L. T. Rep. N. S. 38; L. Rep. 4 Ex. 102; 38 L. J. 59, Ex., are also authorities strongly in favour of the nonpersonal liability of the defendants upon the promissory note in question.

Littler for the plaintiff, contra, submitted that the form of the notice here showed that it was intended that the defendants should be personally liable. There was one fact, moreover, to show that such was the case, namely, that the society had not the power to make such a note or to borrow money under the Building Societies Act (6 & 7 Will. 4, c. 32) s. 4. That point was raised and so decided in the case of Price v. Taylor and another, 2 L. T. Rep. N. S. 221; 5 H. & N. 540; 29 L. J. 331, Ex., in which the personal liability of the defendants-who had in that case signed a promissory note, describing themselves as "trustees" for a building society, much in the same way as the defendants have done in the present case-was sustained. Again, in Healey v. Storey and another, 18 L. J., N. S., 8, Ex. ; 3 Ex. Rep. 318, on a promissory note, which the defendants, who were directors of a joint-stock newspaper company, gave for the purchase-money of a newspaper, in this form, "We jointly and severally promise to pay to H., or order the sum, &c., value received for and on behalf of the W. newspaper association," and which was signed by them, with the addition of the word "directors " appended to their signatures, the defendants were held by this court to be personally liable. The recent case in the Court of Common Pleas of Gray v. Raper and others, L. Rep. 1 C. P. 604, confirms this

He need

J. Brown, Q. C. in reply.-As to that last point, namely, it being their promissory note, that, no doubt, would be all important if the plaintiff had not set out the note itself in extenso in his declaration, so that the court may see it for themselves. not have set out the note, but he has chosen to do so, thus inviting the opinion of the court upon it. The cases which have been cited by the other side to show the personal liability of the defendants all turn upon the particular position of the parties in each case. In Mare and others v. Charles the case turned wholly on this, that the bill was drawn on the defendant individually and not on his company. The case of Kelner v. Baxter and others has nothing to do with the present case. As was observed by Erle, C. J. there in his judgment, no company was in existence at the time the agreement was signed, though had there been, his Lordship agreed that the parties signing the agreement would have done so as agents of the company. Healey v. Storey again, was a case of a promissory note in which the defendants "jointly and severally" promised to pay, and the case turned wholly on those words as importing a personal promise on the part of the defendants. That case, therefore, has no application to the present case, in which the words "jointly and severally" do not occur. In Gray v. Raper and others it was not shewn that they added the words "Committee" or 66 'Secretary to their names, and the matter seems to have been very slightly argued. It is said that this note would be inoperative if the defendants' personal liability does not attach; but that point was noticed in Lindus v. Melrose; again it is suggested by the plaintiff's counsel that the company had no power to borrow money, and give promissory notes for it, and Price v. Taylor was cited to shew it, but the contrary was decided in the recent case of Laing v. Reed (ubi sup.). The rules of the society were not in evidence here, and it is not to be assumed the society has no authority to borrow. (10 Geo. 4 c. 56, s. 122). The plaintiff has not attempted to distinguish the present case from

Ex.] Lindus v. Melrose in the Exchequer Chamber which | is a case of great authority. All the cases on this point will be found collected in Lindley on Partnership, vol. 1, pp. 352–354. (He cited also Fairlie v. Fenton and others, a very recent case in this court, ante p. 373, 39 L. J. 107, Ex. ; L. Rep. 5 C. P. 169).

Re VICTORIA PERMANENT Benefit Building Investment, &c., SOCIETY. [V.C. M. rest," and reading them immediately after the words "value received," thus, "value received and interest for the Second Gateshead, &c., Building Society." I am, I see, reported, by the reporter of Lindus v. Melrose, in this court, in 2 H. & N. 298, to have said that the note there was bad, because, if we supposed a personal liability on the part of the directors there would be a promise by them to pay for value received, on account of the company, and the note would be bad on the face of it, as showing the consideration received by one person, and the promise to pay made by another. In the report in the Law Journal (vol. 27, p. 328, Ex.) I am not, I see, made to say so, and I am inclined to think that, if I did say so, I said what was inaccurate. I am of opinion that the defendants here were not signing this note for any other body or persons, and, therefore, that they were signing it for themselves. There is nothing to show that the society is liable upon this instrument.

KELLY, C. B.-I am of opinion that the plaintiff is entitled to judgment on this demurrer. The declaration is by the plaintiff against three or four defendants upon a promissory-note in this form:"Gateshead, Oct. 18, 1864. On demand, we promise to pay Mr. James Allan 2007., value received for the Second Gateshead Provident Benefit Building Society, and interest thereon at 5 per cent. per annum, payable half-yearly," and it is signed by three of the defendants thus, "GEORGE MILLER, C. D. GARBUTT, John Neddle (trustees)," and by another of them, "THOMAS NEILSON (Secretary).' The question before us, and which we have to decide, is, whether or not, upon this note, the three first-named defendants are personally liable? Now, if the note had been, "on demand we promise to pay Mr. James Allan 2001. for the building society," and no more, it might have been contended that the language of the note was in effect this, We promise to pay this 2007. for the society, A. B. C." I do not say that even then the defendants would not be personally liable. But when we look at the instrument as set forth on the record, we find a promise to pay this money as "value received for the society, and interest thereon." It is clear, therefore, that the "value received" is for the society. Now, when a promissory-note is given by any person, it is quite immaterial for whom the value was received, or whether that is stated at all. Those words might be struck out altogether. They do not at all affect the construction of the note, or the liability of the persons signing it. Then, does the circumstance of the defendants adding the word "trustees" to their signatures affect their liability or make any difference? I am of opinion that it does not. If there were any doubt at all upon this, it would be clearly removed by the case of Price v. Taylor, which has been cited in argument by the plaintiff's counsel. The promissorynote in that case is almost identical with that in the case now before the court. As I have already said, it is, I think, immaterial whether the words "value received" be followed by the name of any particular person, or whether there be no such words in the note at all. I am clearly of opinion, both on principle and authority, that the defendants here are personally liable. A case which has been cited by the plaintiff, that of Healey v. Storey and another, is a still stronger case. There the note was a promise to pay, &c., "value received for and on behalf of the W. N. Association;" and it was held that, notwithstanding these words, the defendants, who had, as here, signed the note as "directors," were nevertheless personally liable. Were it necessary or profitable to look beyond the instrument itself here, there is nothing more likely than that the society in this case requested three or four of their officers to give their personal security.

BRAMWELL, B.-I am of the same opinion. I doubt very much whether Mr. Brown's contention can be correct, because of the allegation in the declaration, that "the defendants made their promissory note; and as to there being any ambiguity, I doubt if any ambiguity arises on demurrer. But I think in truth that the natural and reasonable construction of the document itself is to make the defendants personally liable. The only way in which this note could be read as if it were signed for the society would be, as my Lord Chief Baron said, by transposing the words "and inte

66

CHANNELL, B.-I am of the same opinion. The case, I think, is not substantially different from the cases of Price v. Taylor and Healey v. Story (ubi sup.) which were cited in argument, and which have been referred to by my Lord Chief Baron in his judgment, and their applicability to the present case so very clearly, if I may say so, pointed out by him. What is the effect of the words used, for on that, after all, the question depends. It has been argued as if the effect of them was on demand we promise, on behalf of the society, to pay, &c. ;* or, as if the words "for the Second Gateshead, &c., Building Society," were to be read immediately before the signatures of the defendants. But I think that that is not so. I entirely agree with the opinion expressed by my brother Martin, in his judgment in the case of Price v. Taylor, at p. 545 of 5 H. & N., founded on a passage in Byles on Bills. My brother Martin there said, "The meaning of a written document is to be collected from the terms in which it is expressed. In Bayley on Bills (Ch. 2, sect. 8, p. 79, 6th edit., it is said, Where a bill or note is drawn by an agent, executor, or trustee, he should take care, if he means to exempt himself from personal liability, to use clear and explicit words to show that intention.'" So here, if the parties intended to exclude the personal liability of the defendants, they should have used, as they could easily have done, apt words signifying such inten tion. But they have not done so.

PIGOTT, B. having heard only the latter portion of the argument, took no part in the judgment. MARTIN, B. was absent.

Judgment for the plaintiff. Attorneys for the plaintiff, Hill and Hoyle, 123, Cannon-street, E..

Attorneys for the defendants, Miller and Miller, 5 and 6, Sherborne-lane, E.C.

V.C. MALINS' COURT.
Reported by G. T. EDWARDS and G. I. F. COOKE, Esqrs.,
Barristers-at-Law.

March 5 and 7, 1870.

Re VICTORIA PERMANENT BENEFIT BUILDING IN-
VESTMENT AND FREEHOLD LAND SOCIETY; HILL'S
CASE; JONES'S CASE.

Building society-Power of borrowing-Depositors. The rules of a building society contained no express power of borrowing, but provided that "all persons merely joining the society to invest or deposit money, should not be entitled to vote at any meeting, nor be called upon to serve any office :"

V.C. M.] Held, that a power to borrow was not contemplated by this rule.

Re VICTORIA Permanent Benefit Building Investment, &c., SOCIETY.

A building society was established under 6 & 7 Will. 4, c. 32, and consisted of several branches, one of which was cailed the "deposit branch." The rules of the society, except as to this branch, were duly certified. The 29th rule provided that any member having received advances on shares should be held as legally discharged from all connection with the society, as soon as he had paid all subscriptions due from him on account of his shares according to the rules." Several persons placed money on deposit with the directors, each depositor receiving a "member's deposit book,' containing "rules of the deposit branch," which declared that the general rules of the society should be binding on all persons making deposits. The society having been ordered to be wound-up, an application vas made to remove the depositors from the list of