ties for good behaviour are demanded, the defendant or witnesses in his behalf can be examined to testify in his favour, or, in other words, whether the same rule as to evidence applies in cases of sureties for good behaviour as in cases of sureties to keep the peace. We think that the same rule does apply, and that the decision of the Exchequer in Dr. Tanner's case should be followed. In that case it was held that Dr. Tanner, who was called upon to give sureties to be of good behaviour, was not entitled to be examined or to call witnesses in his behalf. Personally I think that the law as it now stands in this respect in this country should be altered by Parliament. Formerly the law in England was the same, but it has been altered by statute. No such enabling Act has, however, been passed for this country. Let me come now to the reasons on which the judgment in Dr. Tanner's case was founded. They appear to be the very same, and to be based on the very grounds relied on by Lord Blackburn in Lort v. Hutton. The basis of Lord Blackburn's opinion in that case was, that binding a man to keep the peace is not a punitive but a precautionary proceeding" that when a man is called on to find sureties, it is not in the nature of punishment, but is to prevent the apprehended danger of the breach of the peace being committed. Indeed in all the cases on the subject it is held that binding to be of good behaviour is not a punitive but a precautionary proceeding. Commenting on Lort v. Hutton, Palles, C.B., says "Lord Blackburn laid down that when a man was called upon to find sureties, a witness could not be produced for the purpose of disproving the fact sworn to in support of the application, and when it was argued that such a decision was manifestly liable to abuse, and was against the principle that every man should be heard in his own defence, the only answer that great judge could give was-That argument would be irresistible if this were a case of punishment, but it is not-it is not in the nature of punishment, but is to prevent the apprehended danger of a breach of the peace being committed.' I am bound," continued Palles, C.B., "by that law. It is no new law. It has been laid down by Lord Blackburn within the last few years, but the same principle is asserted in every text-book and every decision of our Courts for the last 300 years, and it would be pedantic to cite authorities in proof of it. I regret extremely that the law is so.

but I repeat what I have already said so often, that I find such is the law; and if this, which I venture to suggest is an anomaly in our law, is to cease to exist, it must be by the act of the legislature, and not by the act of this Court." This considered opinion rests on the authority of Lord Blackburn, and we feel that it should be acted on by this Court. As to the distinction between sureties for the peace and sureties for good be

[K. B.

haviour, no doubt the Chief Baron does not expressly deal with it in his judgment, and perhaps it is to be regretted that he does not do so; but the case before him was one where sureties for good behaviour were demanded, and he treats demands for sureties for the peace and sureties for good behaviour as analogous, and seeing that the object of sureties for the peace and sureties for good behaviour is identical, he applies the reasoning applicable to the former, for the exclusion of witnesses, to the latter case.

Counsel for the appellant contended that it had not yet been authoritatively decided that binding to be of good behaviour was subject to the same rules as binding over to keep the peace, and they relied on a passage in the judgment of May, C.J., in R. v. Justices of Queen's Co., at p. 300, and also on a passage at p. 293 in Dalton's Justice of the Peace. May, C.J., did not refer to the basis of Lord Blackburn's decision in Lort v. Hutton, and, further, it must be remembered that this dictum is in no way binding on this Court. It does not appear to have received judicial sanction. FitzGerald, J., who delivered a separate judgment in the same case, says nothing on this question of evidence. As to the passage from Dalton which has been referred to, it occurs in Ch. 124, which deals with surety for good behaviour. "It is chiefly to be granted," says Dalton, "in these cases following, viz. First, against common barreters, common quarrellers, and common breakers or perturbers of the Peace, " and he then enumerates other cases in which it will be granted. "For," he proceeds, "all these former offenders and the like are evil members in the commonwealth, and such their demeanour and living is greatly to be suspected, and therefore"-and these are the words relied on in the present case "it seemeth reasonable, just and expedient, that Justices of Peace, upon their discretion, should convent such persons before them, and examine them and their courses of life; and if they cannot yield a good reason and account of such their courses, then to bind them to their good behaviour." It does not follow from this that Justices could compel the defendant to give evidence. The words of the writer would seem to be a recommendation of a practice, existing at the time he wrote, of hearing the defendant in cases of binding to be of good behaviour. That practice, however, does not now prevail, and even if it did, it would have to cease when it came to be tested by legal principles in the Superior Courts. The law should no doubt be altered, so as to enable all parties to be examined.

It was further contended that the magistrates (should have either acquitted or found guilty on the charge, having regard to the frame of the summons, and that, before they could so adjudicate, the defendant was entitled to call witnesses. That argument is based upon a fallacy. What

was sought here was not a conviction of a criminal offence under the Conspiracy Act, but a binding over against future misbehaviour. Halpin was not prosecuted on a criminal charge. In all the cases cited on this point the facts show that the offence charged in each amounted to a criminal offence. The acts complained of here may have amounted to a criminal offence in fact, but the point is what was sought to be done by the summons? Upon these grounds the Court are of opinion that the magistrates were right. GIBSON, J., in delivering judgment to the same effect, said-At the time when Dalton wrote Justices were required by statute to examine accused persons, not on oath, but by a process of judicial catechism. The defendant cannot now be examined, and no great weight can be attached to what is laid down in Dalton as to the old custom of examining the defendant. No reason can be advanced why the law here should be different to that in England. Although security for good behaviour is not penal, it is an imputation on a person's character, and it is certainly a strange anomaly that, in reference to a charge which the magistrates could not try directly, they should be able, by indirect adjudication, to impose the obligation on one to find surety--an obligation he could not perhaps fulfil. Legislation is urgently demanded to remove what is not merely an anomaly, but a plain violation of the fundamental principles of justice. The defendant ought to have as good an opportunity of making his case as the complainant.

MADDEN, J.-I do not dissent from the judg ment of the Court in so far as it follows the decision of the Court of Exchequer in Dr. Tanner's

case.

The result, however, of a most careful consideration of the cases on the subject is to make me adopt the dictum of May, C.J., which has been referred to. In my opinion the jurisdiction of the Justices in the matter of sureties is independent of statute, and the dictum of May, C.J., seems to be in accordance with the practice in Petty Sessions Courts since 1861a practice which is in accordance with natural justice. There is, however, this decision of the Exchequer which I am incapable of distinguishing and must therefore follow.

66

ГК. В.

Where, under the rules of a Friendly Society, registered under the Friendly Societies' Act, 1896, it was provided that all matters in dispute between the society and any of its members, or persons claiming through a member, or under the rules, shall be settled by one of the Divisional Magistrates of the City of Dublin," and where an action was brought to recover certain levies and fines claimed under the rules of the society, and the action was remitted to the Recorder of Dublin, who gave a decree for the full amount claimed, and the case then went on appeal to Gibson, J., who stated a case for the King's Bench Division:

Held, that the Recorder had no jurisdiction to deal with the case.

Case stated by Gibson, J., on an appeal from the Recorder of Dublin in a remitted action. The plaintiff sued as trustee for a Friendly Society, called the North City Loan Fund and Investment Society, which was duly registered under the Friendly Societies' Act, 1896. The original loan was for £20, secured by promissory note or agreement, dated Oct. 31, 1898. It was agreed under the rules of the society that the amount should be repaid by forty weekly instalments, and interest was deducted in advance on that basis. The question in controversy between the parties related to certain levies and fines claimed under the rules of the society. The action was based on the view that 77 weeks' fines could be charged, the fines being calculated at 1d. for each £1 of the original loan in respect of each instalment on which any default took place. The defendant made default on Nov. 26, 1898, but on this and each subsequent default the parties elected to treat the debt as still payable by weekly instalments as theretofore. Under the rules, where repayment by instalments was treated as a continuing obligation, non-payment of each instalment created a distinct liability to a fine of 1d. in the £1 on the original loan, and, according to the practice and decision of the committee of the society, the rules had been construed as creating such liability against the defendant, who was a member of the society, and knew the rules, practice, and decison, and was sued as such member. The Recorder gave a decree for £7 10s. on the basis of 77 weeks' fines having accrued. Rule 29

Solicitor for the appellant: Mr. T. Lynch. Solicitor for the respondent: Sir P. Coll, C.C.S.

(Before LORD O'BRIEN, C.J., MADDEN, and BARTON, JJ.)

M'CAFFREY v. M⭑MAHON.

Feb. 26, 1901.-Friendly Society-DisputeCounty Court-Jurisdiction of Justices-Friendly Societies' Act, 1896, s. 68 (5).

between the society and any of its members, or persons claiming through a member, or under the rules, shall be settled by one of the Divisional Magistrates of the City of Dublin." The principal question for the opinion of the King's Bench was- -Had the Court jurisdiction?

Cuming, for the defendant.- Wright v. Monarch Investment Building Society, 5 Ch. D. 726; Hack v. London Provident Building Society, 23 Ch. D. 103; Municipal Building Society v. Kent, L. R. 9 A. C. 260; Crisp v. Bunbury, 8 Bing. 394.

[LORD O'BRIEN, C.J.-How can the magistrates get jurisdiction under a rule of the society?]

[BARTON, J., referred to the Friendly Societies' Act, 1896, s. 68 (5).]

P. O'C. White, for the plaintiff.-The rules of the society cannot apply to cases of debtor and creditor, but only to internal or domestic disputes. The magistrates, having no jurisdiction, could not get jurisdiction under the rules. Even if they have jurisdiction in such cases, it is merely as an arbitrator, and no arbitrator can be compelled to act. S. 68 (5) of the Friendly Societies' Act does not impose any obligation on the magistrates to adjudicate in such cases. It enables them to adjudicate if they so desire. There is no "dispute here within the meaning of that section: Western Suburban Building Society v. Martin, 17 Q. B. D. 609; Mulkern v. Lord, L. R. 4 A. C. 182.

LORD O'BRIEN, C.J.-We are all of opinion that the argument on behalf of the defendant is well founded. I was referred to clause 5 of s. 68 of the Friendly Societies' Act, 1896, by my brother Barton. That clause covers the case. It solves the difficulty, and is distinctly in favour of the defendant's contention. It provides that, "where the rules of a registered society or branch direct that disputes shall be referred to justices, the dispute shall be determined by a court of summary jurisdiction"-that is, it is mandatory on them to determine the case. Now, did the rules of the registered society in this case refer it to the magistrates to decide disputes? We find they did. [Reads r. 29.] The object of the legislature in making this provision was to prevent costs and to provide a cheap tribunal where such cases might be tried.

MADDEN and BARTON, JJ., concurred.

Solicitor for the plaintiff: J. S. B. Vanston. Solicitor for the defendant: Cornelius O'Rorke.

(Before BOYD, J., at Chambers.) KINSELLA V. FLANAGAN. March 13, 1901.—Practice-Discovery of documents-Title case-Discovery granted before Statement of Claim.-Or. XXXI., r. 12.

Where the plaintiff, as administratrix of a deceased person who had been in possession of certain premises up to the time of her death, brought an action against the defendant to recover possession of these premises and for a declaration of title thereto, and where the plaintiff, before delivering a Statement of Claim, applied for discovery of documents alleging that the premises sought to be recovered were held by the deceased under leases and other documents of title, which documents were in the premises at the time of the deceased's death and remained there until the

[K. B.

defendant entered into possession, and were, at the time of action brought, in his possession, power, or procurement :

Held, that, notwithstanding that a Statement of Claim had not been delivered, the circumstances were such as to entitle the plaintiff to discovery limited to the documents in the possession, power, or procurement of the defendant, showing the terms for which the deceased held the premises. Philips v. Philips (40 L. T. R. 815) not followed.

Summons by the plaintiff, before Boyd, J., at chambers, for an order that the defendant make discovery on oath of the leases, assignments thereof, and all other contracts of tenancy in the possession, power, or procurement of the defendant, showing the terms for which Bridget Nelson, deceased, held the premises sought to be recovered in the action. The application had previously been made ex parte, when Boyd, J., thought it should be on summons, so as to give the defendant an opportunity of being heard. The action was brought by Anne Kinsella, as administratrix of Bridget Nelson, deceased, to recover possession of the premises No. 8 James's-street, Dublin, and for a declaration of title thereto. The writ was issued on Feb. 21, and an appearance was entered on March 1, calling for a Statement of Claim. No Statement of Claim had been delivered. In support of the application the plaintiff made an affidavit alleging that portion of the premises were believed to be held under leases made before the year 1839, at a rent of £10, and that another portion was held under lease at a rent of £2, and a yard at the rere of the premises was purchased about the year 1880, and was held for a long term of years at a rent of £4 12s. 4d. It was alleged that Bridget Nelson, deceased, about 1840 purchased the tenant's interest in these tenancies (excepting the yard purchased in 1880), and entered into possession of the premises, and remained in possession from 1840 to the time of her death in 1889. Whatever title deeds she had in connection with these premises were in the premises when she died, and remained there after her death. Bridget Nelson died intestate on Feb. 22, 1889, leaving three children, including the plaintiff, her administratrix, and Mrs. Flanagan, her surviving. Previously to the deceased's death Mrs. Flanagan had gone to reside with her, and after the deceased's death Mrs. Flanagan continued to occupy the premises and so continued up to the time of her (Mrs. Flanagan's) death in 1898, when the defendant, her husband, entered into and assumed possession. The leases and title deeds were, it was alleged, up to the time of Mrs. Flanagan's death, in the house No 8 James's-street, and after her death the defendant took possession thereof. Other affidavits were made in order to prove that the documents were in the procurement of the defendant.

K. B.]

Philip White, for the plaintiff.-O. XXXI., r. 12, manifestly contemplates discovery being granted at any stage of the proceedings. The general rule is that a plaintiff will not be granted an order for discovery of documents before he has delivered his Statement of Claim. See cases cited in Wylie, at p. 483. But it is clearly deducible from these cases that, if it is necessary and reasonable, discovery will be granted even before Statement of Claim: Cashin v. Craddock, 2 Ch. D., at p. 147, per Bacon, V.-Ch. See Lyell v. Kennedy, 8 A. C., at p. 230. The defendant, in order to succeed on this motion, must show that discovery is not necessary at the present stage of the proceedings. If the plaintiff does not get discovery he cannot draw a Statement of Claim, and the action will be dismissed for want of prosecution.

Morgan Byrne, for the defendant.-If this application is granted it will be inverting the recognised rule of not allowing discovery before Statement of Claim. In every case cited, in which discovery was granted, a Statement of Claim had been delivered. In Philips v. Philips, 40 L. T. R. 815, an application for discovery was refused, although the affidavit in that case was very much fuller than those in the present one, and it was held by Lindley, J., that such an application should never be granted before the delivery of the Statement of Claim. It must be clear to the Court before granting this order that it is not assisting a speculative case: Ann. Prac., 1901, p. 382. If discovery is granted here a flaw may appear in the defendant's title, of which other persons than the plaintiff may take advantage. The plaintiff must succeed on the strength of his own title, and the defendant who pleads possession should not be required to disclose his title.

BOYD, J. [without calling on White to reply]It would be a travesty of justice if, in such a case as is disclosed in the affidavits here, the Court had no power to order discovery of documents. [His Lordship dwelt at some length on the facts.] The summons here is not for such a full discovery as was required in the cases cited, and in which discovery was refused. There is not the same danger here of picking out flaws in the defendant's title. At the time these cases were decided the leaning of the Courts was to prevent speculative litigation and accordingly they would not encourage demurers. It cannot prejudice this case in the least to require the production of the documents. of title under which Mrs. Nelson held the premises, and, as the summons is limited to those documents, the plaintiff is entitled to such discovery. The costs of this application to be costs in the

cause.

Solicitors for the plaintiff: V. B. Dillon & Co. Solicitors for the defendant: Gifford & Son.

CIRCUIT CASE.

[C ir.C as.

Reported by R. H. RYLAND, Barrister-at-Law. (Before FITZGIBBON, L.J.)

HUDSON v. COUNTY COUNCIL OF COUNTY
WATERFORD.

Waterford, March, 1901.-Sheriff-Expenses of-Quarter Sessions Jurors (Ir.) Act, 1897Power of County Council to determine reasonable sum for defraying such expenses.

The Sheriff cannot recover from the County Council expenses incurred by him in connection with the Quarter Sessions Jurors (Ir.) Act, 1897, until the amount has been fixed by them; and they are not bound to limit the amount to his expenses out of pocket.

Civil Bill Appeal. The plaintiff, who was SubSheriff of Co. Waterford, sued the County Council for £4 17s., the amount of his expenses in sending out the notices prescribed by the Quarter Sessions Jurors (Ir.) Act, 1897, s. 3, informing jurors that their attendance would not be required at Quarter Sessions. The amount was calculated upon a scale which had been fixed by the Grand Jury, by which a payment of one shilling per head was allowed for each juror to whom notice was sent. The plaintiff's actual expenses out of pocket were eight shillings and one penny. The County Council had made no agreement with the plaintiff as to the rate at which he was to be paid. By S. 4 of the Act, the County Councils are required to apply such sums of money as they may deem reasonable, to defray the expenses incurred in connection with the duties imposed by the Act on Sheriffs. The County Council refused to make any payment to the Sub-Sheriff until he furnished particulars of the amounts expended; and no particulars had been delivered before the issue of the Civil Bill. It was contended for the plaintiff that, in addition to his out of pocket expenses, he was entitled to remuneration for his time and trouble in preparing and sending the notices within the limited period fixed by the Act.

W. Gibson, for the plaintiff.
Ryland, for the defendants.

FITZGIBBON, L.J.-The plaintiff cannot succeed because the amount of his remuneration has not yet been fixed by the County Council; and until that is done he has no right to recover it. It is not necessary to determine whether the expenses incurred in connection with the duties imposed by the Act must be limited to the amount actually expended or not; but I do not think that the County Council are bound to give the Sub-Sheriff no more than his out of pocket expenses.

Cir. Cas.]

CIRCUIT CASE.

Reported by H. M. FITZGIBBON, Barrister-at-Law.

(Before FITZGIBBON, L.J.)

THE EMPLOYERS' LIABILITY ASSURANCE CORPORATION, LTD., v. MELBOURNE.

Carlow, March 15, 1901.-Bills of Sale (Ir.) Acts, 1879 and 1883-Insurance policy-Guarantee -Contract-Interpleader.

A contract to give possession of goods at some future date on the happening of a particular event is not a Bill of Sale within the provisions of the Bills of Sale Acts.

Interpleader issue as to whether or not the goods, or the proceeds thereof, of Abner Connor, in the custody of Robert Bell, auctioneer, were the property of the plaintiffs. The facts proved were shortly as follows:--On 22nd Nov., 1894, the plaintiffs issued an insurance policy to the Grand Canal Company to guarantee the latter Company to the extent of £300 against loss by embezzlement or fraud on the part of Abner Connor, one of their employers. On the 23rd Nov., 1894, Abner Connor executed an indemnity agreement to the plaintiffs, wherein the said policy of insurance was recited, and whereby (amongst other agreements which are unimportant to the decision in this case) he agreed as follows:-"And the employed (i.e., Abner Connor) further agrees that in case the Corporation (ie., the plaintiffs) shall receive notice in writing of any claim made, or intended to be made, under or by virtue of such guarantee (i.e., said insurance policy) as aforesaid, it shall be lawful for the Corporation forthwith, or at any time thereafter, and without any previous notice to the employed, in a summary manner by themselves or any of their clerks or officers, or by any other person or persons in their behalf; and the Corporation and their officers are hereby authorised and requested by the employed to take possession of any money, goods, chattels, property, or effects, whether in possession, expectancy, or reversion, which the Corporation may find belonging to the employed, and to enter into any house or houses, apartments, rooms, or other premises, to take full and absolute possession of such money, goods, chattels, property, and effects, and either to remain in, and continue such possession on the premises, or to remove the same or any part thereof for safe custody to such place or places as the Corporation shall think fit, and also to receive any debts or moneys due to him from any person whomsoever, and to give full receipts for the same."

On the 21st Nov., 1900, the Grand Canal Company wrote to the plaintiffs, informing them of a certain deficit in Abner Connor's accounts, and that they would hold the plaintiffs liable to make the same good. The plaintiffs received this letter on the 22nd Nov., 1900, on which day Abner

--

[Cir. Cas.

Connor executed a Bill of Sale to the defendant to secure a loan of £190. On the 26th Nov., 1900, the defendant instructed Robert Bell, an auctioneer, to sell all the property comprised in the Bill of Sale, and Bell at once advertised same for sale on 11th Dec., 1900. On the 29th Nov., 1900, the plaintiffs, by their bailiff, signed all the property comprised in said Bill of Sale, and on the 30th Nov., 1900, were served by the defendant with a notice claiming the property, and calling on them to withdraw their bailiff. This not being done, the defendant on same day forcibly removed their bailiff, and resumed possession of the property, which he continued in possession of till the date of the auction. On the 11th Dec., 1900, Bell, the auctioneer, proceeded to sell the property, and during the auction received a notice from the plaintiffs, in which they claimed the property under the aforesaid indemnity agreement, and cautioning him not to part with the proceeds of the sale of same. Bell, accordingly, declined to give the defendant the proceeds of the sale, and the defendant thereupon commenced an action against him for the recovery of same, with the result that Bell applied to the Court for relief, and the present issue was then directed to be tried.

Molony, K.C. (with him Battersby), for the defendant.-(1.) The agreement relied on by plaintiffs was a Bill of Sale, as it was a licence to seize as security for a debt, and, therefore, not having been registered according to the provisions of the Bills of Sale Acts, it was of no effect. (2.) The Bill of Sale given by Abner Connor to the defendant operated as a transfer of the property in the goods from Abner Connor to the defendant, and therefore at the time of the plaintiffs' seizure the goods were not Abner Connor's property. (3.) In any event the defendant had, in fact, saken possession of the goods under the Bill of Sale previous to the plaintiffs' seizure.

Wakely, K.C. (with him W. G. Gibson), for plaintiffs.—(1.) The agreement on which plaintiffs rely was not a Bill of Sale, and did not require to be registered under Bills of Sale Acts, as it was not a security for a debt existing at the date of its execution, and no property passed in the goods at the time of its execution. It was merely an agreement for indemnity-a contract to give possession of property at a future date on a certain event occurring, and when that event happened, and a seizure under the agreement took place, the seizure and the possession of the goods related back to the date of the instrument. (2.) The Bill of Sale relied on by the defendant was merely colourable, and a fraud on creditors, and did not truly state the consideration.

FITZGIBBON, L.J.-Each party claims under documents to which the provisions of the Bills of Sale Acts are sought to be applied. It has been contended that the agreement of 23rd Nov., 1894,