of opinion that he has no claim to compensation for the loss of professional gains, such as were formerly received by him in respect of the prosecution of offenders by desire of the magistrates. That is not a species of patronage which belongs to them, and is no ground of compensation." [Lumley referred to Reg. v. The Mayor of Norwich (3 Q. B. 285), where the Lords of the Treasury, in awarding compensation to B. under 5 & 6 Will. 4, c. 76, s. 66, for the loss of the offices of town clerk and clerk of the peace, gave a sum, as they stated in their minute, for the loss of employment in matters relating to certain charity trusts which were under the management of the corporation of the borough, and it was held that the Lords had jurisdiction to make an allowance in this respect; that B. was entitled to compensation for loss of the last mentioned employment when the Act came into operation, and that supposing any deduction due on account of his continuing to be employed afterwards, that was a question of amount as to which the award was final.] See, however, the judgments in that case. Here the statute enables the Poor Law Board to give compensation in those cases only where a person is deprived of an office or employment." Those words are synonymous; "employment " has not a more extended meaning than "office;" if the words had been "office or employment" it would have been otherwise. It might actually happen that the guardians might now employ their late clerk as an attorney to do the business in respect of the loss of which compensation has been given to him. [BLACKBURN, J.-But now he has only the same chance of being so employed that every other attorney has, and no more.] It is not an inseparable incident to the clerkship of the guardians that the clerk should do legal business for which he is to be paid, and therefore the value of the emoluments now in question ought not to have been estimated in awarding compensation for the loss of the office.

BLACKBURN, J.-I think, when we once understand the facts of this case, that there is no ground for saying that the Poor Law Board exercised their jurisdiction wrongly, and I am far from saying they have not exercised it as I, for one, should have done, had I been in their place. Sect. 20 of 30 & 31 Vict. c. 106, says that "where by the dissolution of an union any person shall be deprived of any office or employment, the Poor Law Board may, according to their judgment, award a compensation to be paid to such person;" plainly, of course, meaning that they are to award compensation for deprivation of office and employment. And I think also, that, although the words used are "according to their judgment," the meaning is, that they are not to be liberal with other persons' money, but to apply their judgment in seeing what is fair compensation. Here they have taken into computation all Mr. Baylis's salary and emoluments of the office of clerk. As to the first no doubt they were right, and to the second, when the rule was moved, we thought he was fairly entitled. Then, besides that, they say that he, being a solicitor, was deprived of certain work which produced profits. The Poor Law Board estimated those profits in the following manner. Having ascertained the amount of the profits in three years and divided it, they obtained an average, and said it shall be taken into the account. That was by no means a perfect way of assessing compensation, for the two MAG. CAS.-VOL. VII.

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or three years selected for the calculation might have been profitless, or, on the other hand, the profits might during those years have been exceptionally large; nevertheless, for a rough mode of assessing compensation, that seems fair enough. They have taken the profits of three years as representing with tolerable accuracy the average of the business. The particular thing dwelt on in argument is this, viz., during that time lands belonging to the board of guardians were taken by a railway company, and disputes arose as to the amount of compensation to be paid for the lands, consequently proceedings were instituted and an inquisition set on foot before a sheriff, and a warrant obtained by the railway company for a jury to assess the compensation for the taking of the lands. Mr. Baylis, being an attorney and clerk to the guardians, was employed about this business, and, besides costs out of pocket, he became entitled to his charges for doing the work. Mr. Prentice laid stress on the terms of the order of the Poor Law Board, before this Act of Parliament passed-that the clerk shall transact all legal business, with certain exceptions therein specified; but the order did not mention among those matters enumerated, proceedings to assess compensation under the Lands Clauses Act; therefore it was contended Mr. Baylis was bound to attend to those without salary; but then, as has been pointed out, there was a prior order in which the Poor Law Board declared that if the clerk has had unusual or extraordinary matters to transact for which he ought to have compensation, the guardians may give it, with the assent of the Poor Law Commissioners. Here the commissioners were unaware of what the clerk had to do, and it is likely that they would have said, if they had been aware of it, that the employment of him in such matters as compensation cases was within the spirit of the Act of Parliament, and that he ought to be paid, and they would sanction payments made to him. Clearly, the commissioners would have sanctioned that. Now comes the important question, are the Poor Law Board, when estimating the compensation to be given for deprivation of an office, tied down to things strictly and legally attached to the office, or are they entitled to say, "It is worth so much besides the actual value of the salary attached to it"? When he entered upon the office it was almost a certainty that it would bring him emoluments arising from legal business done for the union. It is true the guardians might quarrel with their clerk, and, without violating the Act of Parliament, might take the business from him and give it to someone else, but still in all ordinary cases the clerk would be likely to have it; and may not the Poor Law Board take into computation what they would give for the "goodwill"? There is an analogy between this case and cases of compensation under the Lands Clauses Act. You give a man compensation for his house, and take into consideration the fact that it was an old established house of good custom, and that the owner or occupier will suffer from the loss of that. True it is a precarious loss to estimate, but being de facto a loss arising from the taking of the house, it is always considered in assessing compensation. Now that seems a precise and strict analogy, and shows that the "goodwill" is to be taken into account in estimating the loss of the office. Reg. v. The Mayor of Norwich (8 Ad. & E. 633) seems to point to the same S

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principle. There a gentleman held an office which in law was of annual tenure only, but which in practice and fact was enjoyed during good behaviour. He was removed from it by the town council without reason assigned, and they chose to assess compensation for one year only. On appeal by him to the Lords of the Treasury, they considered that de facto the office was one worth in profits to him as much as an office for life, and on that principle they assessed compensation. The Court of Queen's Bench held that the Lords of the Treasury had a right so to do, and some of the court said that they had exercised their discretion soundly. No doubt that was only an opinion, but still one with which I am inclined to agree; for when there is a deprivation of an office, the principle to follow is to give the person compensation as if the late holder had not been deprived. In Reg v. The Mayor of Manchester (sup.), the court thought, and thought rightly, that the clerk to the justices ought not to receive compensation for the loss of that which, I think, was much too remote to be taken into consideration. I think, therefore, the present rule must and should be discharged on the ground that the Poor Law Board did not exercise their jurisdiction improperly, but took into account matters which they were justified in taking into account. With the amount of compensation given by them we have not to interfere.

With

MELLOR, J.-Under the statute enabling the order to be brought up to be quashed, our exercise of jurisdiction must depend on whether we are satisfied that the order was one with which we should interfere. But here it was a question of quantum. Some of the arguments addressed to us were directed to the question of amount. that I think we have nothing to do. I do not, for myself, say that the language of all the judges who decided the cases on the Municipal Corporations Act is quite reconcileable, but the principle on which they all rest their judgments is clear enough, and is well illustrated by Reg. v. The Mayor and Corporation of Norwich (8 Ad. & E. 633). There two judges expressed their opinion that the Lords of the Treasury had exercised their powers rationally, and another judge was silent upon that point, and said merely he thought they had discretion to amend the compensation they had awarded. In this particular case I should be very disinclined to interfere with the quantum, which the Poor Law Board are much more competent to assess than we are. Clearly such business as conducting cases at sheriff inquisitions is kindred to all those things enumerated in the Act of Parliament, and was therefore incident. not to his office of attorney, but to his office of attorney and clerk to the guardians of the union. It is sufficient to say that though Mr. Prentice has failed to satisfy me that we have the power or ought to interfere in this case, my opinion is that the Poor Law Board have exercised their jurisdiction reasonably.

Lumley applied for costs.

Rule discharged.

BLACKBURN, J., after consulting a Master.-It seems to be the practice to discharge such a rule without costs, unless something is shown to the contrary.

Attorney for the clerk to the guardians, Baylis ; for the guardians, Farrar and Farrar; for the Poor Law Board, Sharp, Parkes and Co.

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COURT OF APPEAL IN CHANCERY.
Reported by THOMAS BROOKS BANK, E. 'STEWART ROCHE, and
H. PEAT, Esqrs., Barristers-at-Law.

July 31, and Aug. 1, 1871.
(Before the LORDS JUSTICES.)

Re THE PROFESSIONAL, COMMERCIAL, AND INDUSTRIAL
BUILDING SOCIETY.

Winding-up-Benefit building society-Advanced members-Borrowing power-Illegality-Discre tion of the court-Regard to wishes of creditors and contributories "Just and equitable”—The Companies Act 1862, s. 79, cl. 5.

The

The court will not make an order to wind-up a Benefit Building society compulsorily on the petition of advanced members, contrary to the wishes of the majority of the creditors and the contributories, unless a plain injustice will be done to the petitioners by refusing the order. The trustees of a Benefit Building society under 6 & 7 Will. 4, c. 32, were by the rules authorised from time to time, as might be necessary for the purposes of the society, to borrow money, for which they might give their own personal security, and they were to be indemnified out of the first funds of the society which should be received. The society owed about 19,000l. to 105 depositors, most of whom were not members. There was also 43001. due to the society's bankers, and there were a few other debts which brought up the total of debts to about 25,0001. The assets were estimated as worth 24,5001. There were fifty-five advanced and twenty-four unadvanced members. society became involved in difficulties, principally by reason of a number of notices to withdraw deposits having been given. The directors reported that the business must be closed, and proposed an amalgamation with another society of a similar nature. This proposition was ap proved by seventy-seven of the depositors, and at a meeting of the members, at which forty-four members were present, the proposition was ap proved, two only dissenting. Four advanced members, one of whom was in arrear in making the repayments due from him, petitioned to have the society wound-up compulsorily, alleging that it could not pay its debts, that it would be just and equitable to make a winding-up order, and that there had been an erroneous division of alleged profits among the members. After the petition was presented the bankers released the petitioners from their debt, as did nearly the whole of the depositors, and the trustees of the society covenanted to indemnify the petitioners from the remaining debts: Held (reversing a decision of Wickens, V.Č.), that no winding-up order ought to be made: Held, also, that the rule authorising the borrowing of money was bad, and that the society could

not be sued for the sums due to the depositors. THIS was an appeal by the above society, which was a Benefit Building society at Birmingham, formed under the Act 6 & 7 Will. 4, c. 32, and having its rules duly certified, from an order made by Wickens, V.C., to wind-up the society compulsorily. The trustees of the society and some of the members joined in the appeal. The petition on which the order was made was presented by four advanced members of the society named Smart, Hall, Dutson, and Edwards. Edwards had committed default in making repayments due by him to the society.

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The society was established in June, 1865, its objects being "to enable each member to receive out of the funds the amount or value of his share therein, each share not to exceed the sum of 1201., to erect or purchase one or more dwelling-house or dwelling-houses, or other real or leasehold estate, to be secured by way of mortgage to the society until the amount or value of his shares shall have been fully repaid with the interest thereon, and all fines and other payments incurred in respect thereof."

A new rule was made in March, 1870, and duly certified, which provided that "the trustees for the time being may, from time to time, as may be necessary for the purposes of the society, borrow and take up money at interest from any banker with whom the funds of the society shall be deposited, or from any other person, to procure which the trustees may give their own personal security, and they shall be indemnified out of the first funds of the society which shall be received."

At the time when the petition was presented, the society consisted of seventy-nine members, of whom fifty-five were advanced and twenty-four unadvanced. The assets were, according to evidence given by the secretary, worth 24,5791. 148., and the debts amounted to 25,1177. 178. 1d., leaving a balance of 5381. 3s. 1d. against the society. The assets consisted principally of sums lent to ad. vanced members, and secured by mortgages given by them to the society, the sums being repayable in periodical instalments. The debts included a sum of 42671. Os. 9d., due to the society's bankers; a total of 19,1001. 68. 3d., due to 105 depositors, most of whom were not members of the society; 1700l. 108. 1d., owing to unadvanced members, and 501. due for rent. On the 25th May 1871, a meeting of the members of the society was held, and the directors then reported that there were no funds available to advance to members in consequence of the large withdrawal of deposits which had been made, and that it was necessary to close the business of the society. They submitted to the meeting for their approval a proposal for an amalgamation with another similar society, called the Queen's Building Society, which was willing, upon certain conditions, to assume the liabilities of the Professional Society. This proposal had already received the assent of seventy-seven of the depositors. Forty-four members attended the meeting, and a resolution was carried authorising the carrying out of the proposed amalgamation with the Queen's Society. Two members only dissented from this resolution, and these were Edwards, one of the petitioners, and a Mr. Walker.

According to the allegations of the petitioners, depositors to the amount of 5000l. had given notices to withdraw their deposits, and the contributions of advanced and investing members, coming in at stated periods in small sums, were wholly insufficient to provide for the demands of the depositors. It was further alleged that large sums of money had been divided as profits among investing and advanced members, whereas there had been an erroneous calculation made, there having been in fact no profits earned, or at any rate a much less sum than had been actually divided. Investing members, it was alleged, had been allowed to withdraw from the society, removing in cash their capital, and also the profits allocated to them, thus leaving the advanced members liable for the debts of the society, and without sufficient assets to

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enable them to redeem their mortgaged properties, upon the terms of including in their account with the society the share of profits which had been allocated to them respectively. It was further alleged that it was just and equitable that the society should be wound-up; that it had, in fact, ceased to do any business, and that it existed only for the purpose of winding-up its affairs.

The Vice-Chancellor, on hearing the petition, thought that a sufficient case was shown for a winding-up order; but he allowed the drawing-up of the order to be postponed to give the society an opportunity of entering into a compromise with the petitioners. The result of this was that the bankers of the society were induced to execute a deed whereby they absolutely released the petitioners from the debt of 42671. Os. 9d. due to them, and that almost all the depositors executed a similar deed as to their respective debts. With regard to the remaining claims of creditors, the five trustees of the society executed another deed by which they personally covenanted to indemnify the petitioners against those claims, which amounted in the whole to only 5921. 158.

The Vice-Chancellor, however, was still of opinion that a winding-up order must be made, and he accordingly made the order now appealed from.

Karslake, Q.C. and Ince, on behalf of the appellants, relied upon Re The Suburban Hotel Company (L. Rep. 2 Ch. App. 737; 17 L. T. Rep. N. S. 22), as showing that the court would have regard to the wishes of a majority of the members of the society, and further argued that the society was not legally liable for the sum borrowed on deposit, and that, even if it were, the petitioners were now fully protected by means of the releases and indemnity which had been given by the three deeds executed since the petition was presented. On these points they referred to:

Fleming v. Self, 3 De G. M. & G. 997;

Re The National Permanent Benefit Building Society,
L. Rep. 5 Ch. App. 309; 22 L. T. Rep. N. S. 284;
Laing v. Reed, L. Rep. 5 Ch. App. 4; 21 L. T. Rep.
N. S. 773;

Moye v. Sparrow, 22 L. T. Rep. N. S. 154;

Re The Doncaster Permanent Benefit Building Society,
L. Rep. 3 Eq. 158; 15 L. T. Rep. N. S. 270;

Re The Victoria, &c., Society, Hill's Case, L. Rep. 9
Eq. 605; 22 L. T. Rep. N. S. 777;

Ex parte Wise, 1 Drew. 465;

Ex parte Wyld, 1 Mac. & G. 1;

Dickinson, Q.C. and Higgins, on behalf of the petitioners, supported the order of the Vice-Chancellor, and cited:

Farmer v. Smith, 2 H. & N. 196;
Sparrow v. Farmer, 26 Beav. 511.

Graham Hastings, on behalf of Walker, desired to be heard in support of the Vice-Chancellor's order.

Their Lordships, however, decided that he must be taken to be practically on the same side as the petitioners, and therefore could not be heard, the rule of their Lordships now being not to hear more than two counsel on the same side.

Karslake, Q.C. was called upon to reply only in respect of the costs of the petition. He argued that it ought to have been dismissed with costs.

Lord Justice JAMES said: With all respect to the Vice-Chancellor, I am of opinion that a proper case has not been shown for an order to wind-up this society. This is a petition of contributories, and of contributories who are all of them in fact

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debtors to the society, for they are all persons who have received advances, and in respect of which they are mortgagors to the society. One of them, the man whose petition this really is-Edwardsis not only a debtor to the society, but he is in arrear in respect of a sum which he ought to have paid; and one cannot help seeing that the real object of the petition was to try and get the question settled between him and the society as to the terms upon which he was entitled to redeem. That was substantially the object with which the petition was presented. That is not a proper object for a winding-up petition to settle a dispute between one member of the society and the society as to the terms upon which he is to redeem some particular property which he has mortgaged to them. Then, he says, "I have a strict right. I am a contributory," and one of the grounds alleged in the petition is that the society is unable to pay its debts, and the other is that it is just and equitable (that being the general expression at the end of the 79th clause of the Act of Parliament), under the circumstances of the case, that the society should be wound-up.

Now with regard to the debts. Certainly the petitioners have not given the statutory proof of the existence of the debts which the company is unable to pay, because the statutory proof is that an action should be brought, or that there should be a demand made in the nature of a summons in bankruptcy, and that the amount has not been paid, unless it is proved otherwise to the satisfaction of the court that the company is unable to pay its debts. It has not been proved in this case to my satisfaction that there is any debt whatever in respect of which the society could be liable. First of all a society of this kind is not entitled to borrow money, except under a special rule; it is no part of its ordinary business to borrow money. It may incur debts, no doubt, of this kind-it must incur debts for officerent, and it must employ a solicitor and a secretary, and to that extent probably there is always some small amount of debt which every society of this kind must have. But beyond that it is very difficult to see what debts it could legally contract. But, I suppose, having gone on receiving deposits, as they are called, from persons other than members, and having incurred a debt to its bankers, this society did pass a resolution, very late in its history, authorising the trustees to borrow money for the purposes of the society. I am of opinion that, in accordance with the decided cases, that resolution was expressed in terms far too wide to make it a valid or binding resolution; and therefore there never was, in my opinion, any debt on which the society, qua society, could be sued.

It is said that the trustees have borrowed this money for the purposes of the society, that they have pledged their personal liability, and that they may be entitled to be repaid out of the assets. That may be So, and then they would have a right to go to the funds of the society to repay themselves; that is to say, having borrowed money without the power to do so, still, if they did lend that money so borrowed to other persons upon securities, I suppose they would be entitled to have the securities and the money thereby secured applied in exonerating themselves from the debts for which they have made themselves liable. That is the only mode in which, as it appears to me, there could be any liability of the society or of its

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funds, and that seems to me to dispose of the first part of the case.

Then I come to the question whether it is just and equitable to make an order to wind-up this society. These four petitioners are persons who take a different view altogether from all the creditors, from all the other persons interested in the society, who desire to have their affairs settled out of court, without the expense and the ruinous consequences of a winding-up in this court. They desire to have it so done, and the creditors, so far as there are creditors, desire the same thing. With the exception of these four persons, they all desire that the matter should be settled by themselves out of court, and without the interposition of the court.

Then what is the wrong which these four men will suffer? They say, Some funds have been or may be taken away from us, which would probably result in profits, and would so diminish the amount of our nominal mortgage debt. If there had been no mistake, they say, in the mode in which profits have been calculated before, if there had been no mistake in the mode in which they are dealing with the profits now, possibly we might have had something in diminution of the money which we have borrowed, and which we are liable to repay. If there has been an error of that kind, still it does not appear to me that there was ever any fraud, nor is any suggestion of fraud made on the part of these persons. The managing body may have committed an error, and the proper mode of setting right a thing of that kind-any error in the management of a society is to apply to that managing body, or to call a meeting of the managing body or of the general body of members, and get that managing or that general body to take care to rectify its course for the future. That is the proper course, and it is a course which this court has always allowed in a matter of internal management; it has always left the internal management to be settled by the persons interested in the society.

But then it is said, if we have a winding-up order, possibly we may get back for the society moneys which have been paid out to retiring members upon that miscalculation of profits which we allege. I cannot see that it is the object of a winding-up to enable an existing society to get back from its past members something which upon a miscalculation, to which apparently all persons were parties, those past or retiring partners have received. And as far as these gentlemen are concerned, it appears to me, , by their own statement, that no profit whatever can ever result to them. They say that possibly those moneys would go in diminution of debts to which they are liable. My opinion is that they never were liable for those debts. They never could be liable to the trustees to repay those debts, because the trustees could only be entitled to receive whatever funds were available for the purpose of recouping themselves, and the petitioners' own case is that there never were these profits; therefore if there never were these profits, no return of moneys paid away would ever give these gentlemen profits which would go to reduce their debts. Then, if that were so, they never were under any liability at all; but if they were under any liability whatever it is impossible they could ever be made liable in consequence of this mode of dealing with the funds. There may have been some degree of irregularity, but the releases which have been ex

ecuted seem to me to have amply relieved them from every possible liability, so that they cannot, in my opinion, have a shadow of interest in anything that could be gained from the result of a winding-up in which, possibly, they might expose other people to losses which they would not share themselves. There was an irregularity, as it seems to me admittedly, on the part of the society in the mode of dealing with the profits. The releases have been obtained, which have altered the case very much since it was before the ViceChancellor. I am of opinion that the petition ought to be dismissed, but without costs.

Lord Justice MELLISH said: I am of the same opinion. This is a petition by members who, no doubt, if the socoiety was wound-up, would be contributories, and they allege that the society is unable to pay its debts. Now if a creditor cannot get paid, if he issues a proper summons and cannot get paid, then, no doubt, it is ex debito justitie to grant a winding-up order. But when members come and ask for a winding-up order, it appears to me that it is the duty of the court to see whether the other members and the creditors agree in thinking that a winding-up is the best course. Now here it is quite clear that, if there are any creditors, which is extremely doubtful, the creditors without an exception, and all the members of the society, with the exception of the four who have presented this petition and one other, agree that the best course is not to wind-up. Under those circumstances the court, in my opinion, ought not to grant a winding-up order unless it sees that some plain injustice is being done to the members who present the petition, which cannot be avoided except by making a winding-up order. Now, the present petitioners are advanced members, and it appears that there are altogether fifty-five advanced members; therefore, fifty of these fifty-five, who are apparently in exactly the same position as the present petitioners, do not desire a winding-up; they agree with all the unadvanced members and with all the creditors, that the society is more likely to get rid of its difficulties, and that the creditors, if there are any, are more likely to get paid, and the shareholders are more likely to get their proper share of the assets, by not having than by having a winding-up order. I cannot see that these petitioners are liable to suffer any injustice, or are liable to any such risk, as entitles them to a winding-up order. It seems to be almost admitted that the only loss, as between them and the other members which they can suffer is, that they may possibly lose the benefit of having the profits applied towards paying their 1201. advanced per share. Now, in the first place they themselves allege, and it is the chief ground of their petition, that the profits are principally fictitious, that there are none. It does not at all appear that if the accounts were rightly taken there would be any profits coming to them, and the whole matter is left in uncertainty,

Then as respects their liability to creditors, I agree with the Lord Justice that, in all probability, they are not liable at all; but, even if they were liable, all the alleged creditors of the society have joined in releasing them, and I have no doubt that that release is an effectual protection.

Therefore, upon the whole, I am of opinion that we should be doing wrong in allowing the society to be wound-up against the wish of all the creditors, and of the great majority of the contributories of

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On the day fixed for completion the purchaser refused to complete, on the ground that the trustees were not in a position to transfer the licence, which had been renewed in the name of the testator after his death:

Held (reversing the decision of the Master of the Rolls), that as time is of the essence of the contract upon the sale of a public house as a going concern, and as the trustees were not on the day fixed for completion in a position to transfer to the purchaser a valid licence, that in the name of the deceased owner being a nullity, the purchaser was entitled to repudiate the contract, and accordingly a bill for specific performance of the contract was dismissed with costs.

Day v. Luhke, L. Rep. 5 Eq. 336 followed. THIS was an appeal from a decision of the Master of the Rolls, who held, under the circumstances stated in the head note, that though the renewal of the licence was irregular, the purchaser would not incur any risk on that account, and that under the licence, endorsed by the vendors, he would have an unimpeachable title to carry on the trade of the public house, and his Lordship accordingly made a decree against the purchaser for specific performance.

The hearing before the Master of the Rolls is reported ante, p. 166, where the facts and judgment are fully stated.

Roxburgh, Q.C., Poland (of the Common Law Bar), and Marten, for the appellant.-We purchased this public house as a going concern, and in such a case it is settled by Day v. Luhke (L. Rep. 5 Eq. 336) that time is of the essence of the contract, therefore the vendors were bound to transfer a valid licence to us on the day fixed for completion; but the licence having been renewed in the name of the testator after his death was no licence at all, and the vendors had no licence to transfer to us on the day fixed for completion. It is contended by the vendors that we waived this objection. In reply to our requisition, "In whose names are the licences now standing?" the vendors stated: "In the name of the late George Ross; they will be transferred by the executors in the usual way." We made no further requisition on this, being content to accept a transfer from the executors in the usual way; but the executors were not in a position to do so. It is settled by Day v. Luhke (supra), that in the absence of an express stipulation to the contrary, the purchaser is entitled to have a transfer of the licence under sect. 11 of the Licensing Act, 9 Geo.