HIGH COURT. Redman for the heir. AINSWORTH v. WILDING. NORTH, J. had no difficulty in deciding that the widow's charge on the real estate came first. Under section 2 of the Intestates' Estates Act, 1890, the widow took £500 paramount to everything. Then under section 4, her share of the residue was the same as if the £500 had not been part of the estate. She could not, of course, take the £500 from the estate without being in a somewhat worse position as to her other interests under the intestacy. His lordship declared that the widow's dower was subject to the charge for £500. Solicitors, F. A. Brabant; White & De Buriatte. Chan. Div. Romer, J. } March 12. AINSWORTH v. WILDING. (a.) Practice Judgment by consent Order passed and entered by the registrar—Consent given under mistake -Motion to vary judgment-Power of court to alter judgment-R. S. C., ord. 28, r. 11-Fresh action to set aside judgment. A court can only, except possibly with the consent of all parties to the action, interfere with a judgment passed and entered (not being an order made on an interlocutory application) (1) in the case of an accidental slip which can be rectified under R. S. C., ord. 28, r. 11; (2) where the court finds that the judgment as drawn up does not state what it decided and intended. The proper remedy for a party who has consented to a judgment under a mistake is to proceed by a fresh action to set aside such judgment. Motion. This was a motion in this action on the part of John Wilding, one of the defendants, that an order made by consent in the said action on the 23rd of November, 1894, and which had been passed and entered, might be set aside, and that the action might be reheard, on the ground that the consent of the plaintiffs and defendants to such order was given by mistake and that such order did not express the true intention of the parties thereto, and that in any case the consent of the defendant John Wilding to such order was given by mistake or under misapprehension as to the effect thereof. The facts of the case were as follows. The action had been brought by the plaintiffs as second mortgagees against the said John Wilding and R. Wilding, since deceased, as first mortgagees in possession, to obtain accounts of what was due from John Smith, the mortgagor, to the said first mortgagees, and for redemption of the premises mortgaged. The action came on for trial before Romer, J., on the 23rd of November, 1894, when a declaration was made by his lordship with consent, and certain accounts and inquiries were directed to be made. This judgment was passed and entered by the registrar. The question in dispute was as to the footing on which the accounts were to be taken. On the 4th of December, 1895, the Court of Appeal made an order in the action on the construction of the consent order to the effect that the accounts were to be taken on the footing of a cash account. The applicant in his affidavit in support of the motion denied that he had ever given authority to his counsel or solicitors to the accounts being taken otherwise than as mortgagees' accounts. (a.) Reported by J, ARTHUR PRICE, Esq., Barristerat-Law. HIGH COURT. Hopkinson Q.C., and J. G. Butcher, for the applicant.-Although the order has been passed and entered, the court has in a proper case judgment to review it: Davenport v. Stafford, 8 Beav. 503; Huddersfield Banking Co. v. Lister & Son, 43 W. R. 367, [1895] 2 Ch. 273; In re Swire, Mellor v. Swire, 33 W. R. 785, 30 Ch. D. 239. Neville, Q.C., and O. Leigh Clare, for the respondents.-The court has no jurisdiction when a judgunless a fresh action is brought. Formerly, no doubt, ment has been drawn up and entered to deal with it, the Court of Chancery had power in a proper case to deal with a decree, even after it had been enrolled; but this does not apply to the present practice under the Judicature Acts: Emeris v. Woodward, 38 W. R. 346; 43 Ch. D. 185. In Huddersfield Banking Co. v. Lister & Son Vaughan Williams, J., refused to hear the application on motion. The matter came before the Court of Appeal in a different form. They referred to the report of the case, 39 SOLICITORS' JOURNAL 448. Macnaghten, for another defendant. Hopkinson, Q.C., replied. ROMER, J.-This is a motion to discharge a judgment given at the trial of the action, notwithstanding that such judgment has been passed and entered. The application is made in the action in which judgment was given, on the ground that the judgment, which was based on the consent of the parties at the trial, was consented to by the applicant under a mistake. In answer, the respondents have taken the objection that the court has no jurisdiction to discharge the judgment on such a motion, and that it has now no power to deal with its judgment on the grounds raised by the applicant unless a fresh action is brought to set aside the judgment. If I overruled the objection, it would be necessary to go into evidence on which the applicant might support his case. Speaking for myself, I am sorry that I do not see my way to overrule the abjection, as my not doing so will cause expense and probably some delay. But I think that a fresh action must be brought, and that I have no jurisdiction to try the question on motion except with the consent of all the parties. I have offered to hear it if all the parties will consent, but the required consent has been refused. I should only be glad to find, if the case went to the Court of Appeal, that my grounds for refusing the application were insufficient. As the authorities now stand I That have no option but to refuse the motion. The court has no jurisdiction after the judgment at the trial has been passed and entered to rehear the case. is clear. The Court of Chancery had formerly power to rehear cases which had been tried before it, even after the decree had been entered; but that is not so since the Judicature Acts. So far as I know the only cases in which the court can interfere after the passing and entering of the judgment are these: (1) Where there has been an accidental slip in the judgment which has been drawn up, in which case the court has power to rectify it under ord. 28, r. 11; (2) where the court finds that the judgment, as drawn up, does not correctly state what the court actually decided and intended. I am not now speaking of cases where the court acts by the consent of the parties. If the parties had consented I might have had jurisdiction, but even that is not free from doubt; and I am not speaking now of merely interlocutory orders, even if drawn up, as to which different considerations apply, as was pointed out by the late Master of the Rolls in Mullins v. Havell, 11 Ch. D. 763, 27 W. R. Dig. 158. HIGH COURT. AINSWORTH v. WILDING.-Cook (APPLT.) v. HAINSWORTH (RESPDT.). This being so, is the applicant's case brought under either of the two heads of exceptions to the rule that after the judgment has been passed and entered the court has no power to alter it? In my judgment the case does not fall within either exception. In the first place I do not think that it would be putting a fair interpretation on ord. 28, r. 11, to say that this case was within that rule. It is not the case of a clerical mistake or an error arising from an accidental slip or omission. I say that, although it is quite true that the rule would apply in a proper case where there had been a mistake in fact, on which the judgment was obviously founded. In this case I cannot, without going into evidence and really trying the matter out, decide at once that there has been an accidental slip or omission, and it is clear that this case is not within ord. 28, r. 11. And certainly it is not within the second exception. The order, as drawn up, simply expressed what the parties consented to, and contains the words consented to, and I cannot say that the judgment does not carry out what the court decided and intended to decide. Having stated the principles to be applied, I will now call attention to the cases which are in support of the application. The first case in point of date is Davenport v. Stafford. That was a case under the old practice, when the Court of Chancery had the inherent power of rehearing cases even after the drawing up and the passing of the decree. Davenport v. Stafford, however, merely decided that in the opinion of the then Master of the Rolls the court in the exercise of its discretion would not rehear the case after the decree had been entered on the ground of fraud; but would rehear it in the case of a mere mistake. That case has no application to the modern practice under the Judicature Acts. HIGH COURT. that a judgment which has once been passed and entered can be set aside on motion. There were two other cases cited, which as far as they go are against the applicant's contention. One is the Huddersfield Banking Co. v. Lister & Sons. In that case Vaughan Williams, J., refused to upset an order for a compromise on motion, on the ground that he had no jurisdiction to do so. When that case was before the Court of Appeal it appears that the Court of Appeal did not entertain the appeal in its then form, but gave leave to bring an action, which was accordingly brought and resulted in the judgment being set aside. That case is directly opposed to the applicant's contention. As to Emeris v. Woodward it is not clear on the report what the facts were. I cannot gather whether the order had been entered or not. If it had been, it is an authority against the applicant. If it had not, it goes beyond what the respondents ask me to decide here, for North, J., held that he could not entertain such an application by motion. But that case was before the decision in Hickman v. Berens, and, having regard to Hickman v. Berens, I doubt if it would now be held that an action to set aside a compromise was in every case necessary, even although the order had not been drawn up. I cannot help thinking that if the order had not been passed and entered the court could entertain a motion to discharge it on proper grounds. I do not say that even when the order is not drawn up the court would always entertain a motion; for example, I doubt if it would do so when from the nature of the ground on which the application was based conflicting evidence had to be gone into or viva voce evidence considered. In many cases the court might decline to set aside a compromise on motion, even if it had jurisdiction to do so. So far as the authorities go I think they show the principles I laid down at the beginning of my judgment, and I must dismiss this application with costs. This will not, of course, prejudice the right of the applicant to bring a fresh action to set aside the judgment. Motion dismissed. Sclicitors, Robbins, Billing, & Co.; Bower, Cotton, & Bower, for Ainsworth, Sanderson, & Howson, Blackburn; P. G. Robinson. Q. B. Div. May 19. The next case is In re Swire. That case decided this, viz., that even when a judgment had been drawn up, passed, and entered, it might still be altered if the court saw that it did not truly represent the judgment. In deciding that case, Cotton, L.J., says, 30 Ch. D. 243: "In my opinion the court has jurisdiction over its own records, and if it finds that the order as passed and entered contains an adjudication upon that which the court has never adjudicated upon, then, in my opinion, it has jurisdiction, which it will, in a proper case, exercise to correct its record, that it may be in accordance with the order really pronounced." That case has no bearing on the case before me; because it cannot truly be said that here the judgment does not truly express the meaning and intention of the court. Mullins v. Howell, to which I have already referred, was a case of an order made on an interlocutory application, and that was the very ground taken by Sir George Jessel, M.R., for entertaining the jurisdiction to discharge the order, though he states a further ground. It was a case of attachment, and the court has, as he stated, a discretion as to issuing an attachment, and would not in that case exercise it. That case is no authority for me here. Then I come to Barker v. Purvis, 56 L. T. 131, 35 W. R. Dig. 106. That was a case of slip, which was corrected under ord. 28, r. 11. The last case is Hickman v. Berens, [1895] 2 Ch. 638. There the compromise made was more in the nature of a compromise in an interlocutory proceed-poration, within twenty-one days, gave written notice to ing, and no order was drawn up. No objection then was taken on the ground that the compromise could not be set aside on motion, but only in a fresh action; and it is clear that an objection of that kind must be taken at once, as is pointed out in Gilbert v. Endean, 27 W. R. 252, 9 Ch. D. 259. The decision in that case therefore affords no reason for thinking Cook (Appellant) v. HAINSWORTH (Respondent). (a.) Local government-Bye-laws-Validity-New buildings -Powers of corporation to disapprove of plans— Leeds Improvement Act, 1893 (56 & 57 Vict. c. ccx.), 8. 57-Notice to stop building disregarded-Penalty. The Corporation of Leeds under the powers given them by certain local improvement Acts made bye-laws relating to new buildings in the city. Bye-law 61 provided that any person who shall erect a new building without having the plans previously approved of by the Corporation shall be liable to a penalty. C., a building owner, sent in plans, which the Cor C. of their refusal to pass, on the ground, as stated in their notice, that the provisions of section 57, sub-sections (1) and (3), of the Leeds Improvement Act, 1893, would not be complied with by the proposed plan. (a.) Reported by ERSKINE REID, Esq., Barristerat-Law. HIGH COURT. COOK (APPELLANT) v. HAINSWORTH (RESPONDENT). C. thereupon commenced to erect the buildings in accordance with the plans, and was summoned by the Corporation and convicted under bye-law 61. Held, that, although bye-law 61 purported to give an absolute power to the Corporation to sue for a penalty whenever a building was commenced without their previous approval having been obtained, yet, as the Corporation had not used that power capriciously, but had stated the grounds for their disapproval, the conviction was right and must be affirmed. Special case stated by C. Milner Atkinson, Esq., a stipendiary magistrate for the city of Leeds. The material facts set forth in the case were these. An information was laid by Davidson Hainsworth, the respondent, an inspector of new buildings for the city of Leeds, acting on behalf of the corporation, charging George Cook, the appellant, that he in September, 1895, did "unlawfully erect certain new buildings, to wit, a house and shops in Otley-road and Wood-lane, Headingley, in the said city, without having the plans thereof previously approved by the corporation, as required by bye-law No. 61 of the bye-laws relating to new streets and buildings duly made and ordained by the Council of the city." On the 14th of June, 1895, the appellant had given the corporation notice of his intention to erect the premises in question, and deposited plans and sections indicating in detail the buildings which it was proposed to construct. On the 24th of that month the corporation gave the appellant written notice that the plans were disapproved of by them, inasmuch as a back road, in accordance with section 57 of the Leeds Improvement Act, 1893, was not provided, and as the back of the proposed house and shops would be less than 19ft. 6in. from the boundary of the property, contrary to sub-section 3 of that section. In spite of this notice, the appellant in September, 1895, began erecting buildings on the site, which were admittedly in accordance with the plans sent in. Proceedings were thereupon taken by the corporation against the appellant, the building owner. The magistrate convicted the appellant under bye-law 61, and imposed a penalty of £3, inclusive of costs. The building owner appealed, and the question for the opinion of the court was whether the conviction was right. Bye-law No 61, under which the proceedings were instituted, directs that any person who shall erect any new building without giving twenty-one days' notice in writing to the corporation, and previously delivering plans and sections showing in detail the situation, character, and size of the proposed new buildings, or without having the plans approved by the corporation, or erecting buildings in any wise contrary to plans and sections as approved, shall be liable for each offence to a penalty. By bye-law 63 it is provided that the corporation shall give notice of their approval or disapproval of the proposed new buildings to the building owner within twenty-one days after the plans have been sent in by him. Lawson Walton, Q.C. (with him Bairstow), for the appellant. The bye-law is unreasonable and bad, because it gives an absolute power of veto to the corporation whether the provisions of the bye-law as to the plans are complied with or not. Here admittedly the plans meet the requirements of the bye-law, for no alterations were directed to be made in them before the sanction of the corporation would be given. In the case of Reg. v. Mayor of Newcastleupon-Tyne, 60 L. T. N. S. 963, 53 J. P. 788, the corporation disapproved of plans solely on the ground that the new buildings in their opinion were un HIGH COURT. | desirable, and the court held that the corporation had no absolute discretion to disapprove of plans sent in, but could do so only where there would be a breach of a statute or of a bye-law as to new buildings. The bye-law is, moreover, ultra vires, as it contains provisions unauthorized by any statute. Forbes, Q.C. (with him Sir George Morrison), for the respondent.-The bye-law is not ultra vires, for it is expressly authorized by certain local Acts. See section 51 of the Leeds Improvement Act, 1866; section 26 of the Leeds Improvement Act, 1872; and section 40 of the Leeds Improvement Act, 1877. The corporation have given good and sufficient grounds for objecting to the new buildings, and therefore the case of Reg. v. Mayor of Newcastle does not apply: Baker v. Mayor of Portsmouth, 25 W. R. 677, 3 Ex. D. 4; Hall v. Nixon, 23 W. R. 612, L. R. 10 Q. B. 152; and Robinson v. Local Board of Barton Eccles, 32 W. R. 249, 8 App. Cas. 798. The building owner, moreover, instead of commencing to erect the houses after receiving notice from the corporation that the plans were not approved, might, if he thought himself aggrieved at the decision the corporation had arrived at, have appealed to the quarter sessions under section 128 of the Leeds Improvement Act, 1866, the provisions of which are incorporated with the Leeds Improvement Act, 1877; or he might have applied to the High Court for a mandamus to compel the corporation to pass the plans. Lord RUSSELL OF KILLOWEN, C.J.-The principle of law raised by this appeal is one of importance, and the question we have to decide is whether byelaw No. 61 is valid or not. The corporation had expressed their disapproval of certain plans sent in by the appellant relating to some houses he proposed to erect; and it must be noted that the corporation, in deciding not to pass the plans, gave the reasons for their disapproval in a notice to that effect sent by them to the building owner within the time prescribed for doing so in the Act. The building owner disregarded that notice, and was summoned by the corporation. When the matter came before the stipendiary magistrate the building owner contended that the bye-law was bad; and the corporation took up this ground-not that they could, by virtue of the bye-law, without stating any reason for so doing, disapprove of plans, not that their decision, whether right or wrong, was binding but that they had given certain reasons for their disapproval, and that the magistrate was not the judge to determine whether those grounds of objection were good or bad, but that he was bound to impose a fine on the building owner for having committed a breach of the byelaw. There was, no doubt, a remedy open to the building owner by appeal to quarter sessions, or by a mandamus, if properly pursued, if their disapproval of the plans was arbitrary or unreasonable. facts show that the building owner has done that which made him incur a penalty under the bye-law; but it seems to me to be a fallacy to suggest that the power of the corporation is limited in such matters to the powers vested in them by the bye-laws alone, and that the validity of their decision depends on whether the bye-law is reasonable or unreasonable, when the bye-laws were made under express powers given by Acts of Parliament, which the corporation are bound to take into consideration when giving their decision. The magistrate, in my opinion, was right in convicting the appellant, and the conviction ought to be affirmed. The WILLS, J.-I think that any bye-law which purports to give an unqualified and absolute power to a Нн. Ст. DERBYSHIRE COUNTY COUNCIL (RESPTS.) v. MAYOR, &C., OF DERBY (APPLTS.). corporation to apply for a penalty merely because a building has been begun without their approval having been first obtained, under all circumstances, would be an unreasonable one, looking at the general legislation applicable in other places. Indeed, in face of the decision given in Reg. v. The Justices of Newcastle-upon-Tyne it would be impossible to hold any bye-law reasonable which gave a corporation an absolute discretion to disapprove of plans submitted to them, on the simple ground that in their opinion the building was not desirable. The party aggrieved by the adverse decision of the Leeds corporation is not necessarily bound by that decision, for there is an express provision made for his pursuing a remedy both in the bye-laws themselves and in the Local Improvement Acts. In my judgment therefore the bye-law is reasonable, and the magistrate was right in convicting the building owner. DERBYSHIRE COUNTY COUNCIL (Respondents) v. MAYOR, &C., OF DERBY (Appellants). (a.) Practice Discovery-Penal or criminal matter--Pollution of Rivers Act, 1876 (39 & 40 Vict. c. 75), s. 10. By the Pollution of Rivers Act, 1876, s. 10, the county court has power, where any offence against the Act is committed within its district, by summary order, to require any person to abstain from the commission of such offence, and, where the offence consists in default to perform a duty under the Act, to require him to perform such duty in the manner in said order specified. The county court has, under the same section, the further power, in case of default being made in complying with any such order, of ordering the payment of a penalty. Held, that proceedings instituted to obtain the former order were not proceedings in a penal or criminal matter, and that an order for discovery made in them was right. Appeal from the decision of the judge of the Derbyshire County Court. The appellants (the Mayor and Corporation of Derby), who were the sanitary authority for Derby, formerly discharged their sewage into the River Derwent. The respondents (the Derbyshire County Council) took proceedings in the county court, under section 10 of the Rivers Pollution Act, 1876, to compel the appellants to stop the discharge of sewage into the river. In the course of those proceedings the respondents obtained an order for discovery of documents and for the administration of interrogatories. The appellants appealed against that order, on the ground that the proceedings were in a criminal or penal matter, and that there was therefore no power to order discovery. Section 10 of the Rivers Pollution Act is as follows: "The county court having jurisdiction in the place where any offence against this Act is committed may by summary order require any person to abstain from the commission of such offence, and where such offence consists in default to perform a duty under this Act may require him to perform such duty in (a.) Reported by C. G. WILBRAHAM, Esq., Barrister-at-Law, Нн. Ст. manner in the said order specified. The court may insert in any order such conditions as to time or mode of action as it may think just, and may suspend or rescind any order on such undertaking being given or condition being performed as it may think just, and generally may give such directions for carrying into offect any order as to the court seems meet. Previous to granting such order the court may, if it think fit, remit to skilled parties to report on the best practicable and available means and the nature and cost of the works and apparatus required, who shall in all cases take into consideration the reasonableness of the expense involved in their report. "Any person making default in complying with any requirement of an order of a county court made in pursuance of this section shall pay to the person complaining, or such other person as the court may direct, such sum, not exceeding £50 a day, for every day during which he is in default, as the court may order; and such penalty shall be enforced in the same manner as any debt adjudged to be due by the court Graham, for the appellant.--This was a proceeding in a penal matter, and the respondents were therefore not entitled to discovery: Hummings v. Williamson, 32 W. R. 267, 11 Q. B. D. 533; Mellor v. Denham, 5 Q. B. D. 467, 28 W. R. Dig. 163; Reg. v. Whitchurch, 7 Q. B. D. 534; Jones v. Jones, 37 W. R. 479, 22 Q. B. D. 425; and Reg. v. Buchanan, 15 L. J. Q. B. 227. Though the proceedings in question were not to ecover a penalty, the ultimate result of them would be a penalty, and therefore they were proceedings in a penal matter. The discovery obtained in these proceedings would be of use to the respondents in the ultimate proceedings for the penalty. Stanger, Q.C., and Carver, for the respondents.The proceedings here were initial proceedings, but they were not in themselves penal proceedings. The ultimate order for the payment of the penalty in the event of disobedience to the first order was within the discretion of the county court to make or refuse. No case went so far as to say that where an order may be given, and disobedience to that order may be followed by an order imposing a penalty, the proceedings to obtain the first order were penal proceedings: Fisher v. Owen, 26 W. R. 581, 8 Ch. D. 645; Martin v. Treacher, 34 W. R. 315, 16 Q. B. D. 507; Adams v. Batley, 35 W. R. 437, 18 Q. B. D. 625; Downing v. Falmouth United Sewerage Board, 36 W. R. 437, 37 Ch. D. 234; Saunders v. Wiel, 40 Railway Co., 17 Q. B. 957. W. R. 594, [1892] 2 Q. B. 321; Reg. v. Ambergate GRANTHAM, J.-There is no decision upon this point. It seemed difficult to say that a proceeding which would ultimately result in a penalty was not a criminal proceeding, and, if so, that it did not come within Reg. v. Whitchurch. But, on considering the terms of the Act, I have come to the conclusion that it altered the form of procedure from criminal to civil. The Legislature had that object in view in order to obviate the difficulty formerly experienced of enforcing the old common law rights where sewage was poured into a stream. The cases cited for the appellant followed Mellor v. Denham, and in each case the Act under which the proceedings were taken directed that the proceedings should be taken under the Summary Jurisdiction Acts. But under this Act the proceedings were to be taken in the county court. The procedure provided by the Act was clearly inconsistent with the proceedings under the Act being criminal proceedings. COLLINS, J.-I am of the same opinion. It seems HIGH COURT. HIGH COURT. ESCRITT AND OTHERS v. TODMORDEN CO-OPERATIVE SOCIETY. to me, prima facie, looking at section 3, that it may well be that a person who "knowingly permits to fall or flow or to be carried into any stream any solid or liquid sewage matter may be deemed to have committed a misdemeanour. But it has been held in two cases that the use of the word "offence" does not necessarily imply a criminal offence. One must look at the consequences of the act, and if an act, though described as an offence, is yet not followed by a punishment, then it is not a crime. We find that the Legislature has thought fit to put a stop to what persons might otherwise have had a right to do. Persons might have acquired a right to pour sewage into the river in such a way that they could not be restrained from doing so by persons occupying land lower down. It would be a hardship to turn such persons into criminals. It was not even necessary that the acts prohibited by the statute should amount to public nuisances. It would have been a strong thing to have done to turn such acts into crimes. Provision was made in the Act that the county court should deal with offences against the Act. It was to hold inquiries and to make summary orders restraining persons from committing offences against the Act, or requiring them to perform duties under the Act, and it had the power of putting limitations upon such orders. It was to take steps to see what were the "best practicable means,' " and what would be the expense involved. That was all it had to do at first. It was not till something else happened that any penal consequences were to ensue, that is to say, when any person against whom an order was given, made default in complying with it. Then the county court might order the payment of a sum of money. That penal enactment was the only means of enforcing the order, which was an order in the nature of an injunction. Having regard to the circumstances that the procedure provided was of a civil nature, and that, instead of appointing the justices to administer the Act, the Legislature had referred the matter to a civil court, and having regard also to the fact that the Court of Appeal have entertained appeals from orders made under the Act, which they could only do on the assumption that they were civil matters, I cannot doubt that the proceedings are essentially civil, and not criminal. Appeal dismissed. Solicitors for the appellants, Satchell & Chapple, for H. Gadsby, Derby. Solicitors for the respondents, Wynne, Holme, & Wynne, for Hughes-Hallett, Derby. Q. B. Div. Feb. 25. (Wills and Wright, JJ.)) ESCRITT AND OTHERS v. TODMORDEN CO-OPERATIVE SOCIETY. (a.) Industrial society-Deceased member's property-Intestacy Distribution Discretionary power-Industrial and Provident Societies Act, 1893 (56 & 57 Vict. c. 39), s. 27. The power given to the committee of an industrial society by section 27 of the Industrial and Provident Societies Act, 1893, of distributing the property of a member who has died intestate to the next of kin without letters of administration is a discretionary power, and an action will not lie to compel the committee to exercise their discretion. (a.) Reported by F. O. ROBINSON, Esq., Barristerat-Law. Appeal of the defendant society from the County Court of Yorkshire, holden at Todmorden. The plaintiffs were the next of kin of David Escritt, deceased, and claimed from the defendant society the sum of £10, part of a sum of £100 which had been deposited with the society by David Escritt. In 1885 David Escritt nominated the £100 in favour of his ten children equally. He died in May, 1891, intestate. Nine of the ten nominees had been duly paid their shares by the society. The present action related to the share of John Escritt, one of the children of David Escritt. John Escritt had left England some years before his father's death, and was last heard of in January, 1884. The plaintiffs contended that John Escritt must be presumed to have died before his father, and that therefore they were entitled on an intestacy to the lapsed share of John Escritt. The society declined to presume that John Escritt had died before his father. The county court judge gave judgment for the plaintiffs. In the course of the hearing he amended the claim by adding the administratrix of David Escritt as a plaintiff. The defendant society appealed. The Industrial and Provident Societies Act, 1893, s. 27 (1), enacts that if any member of a registered society entitled to property therein in respect of shares, loans, or deposits, not exceeding in the whole at his death one hundred pounds, dies intestate, without having made any nomination thereof then subsisting, the committee may, without letters of administration, distribute the same among such persons as appear to them, on such evidence as they deem satisfactory, to be entitled by law to receive the same. C. A. Russell, for the defendant society.-In the circumstances which have arisen in this case the society is under no obligation to pay this £10 to the plaintiffs. Under section 27 of the Act of 1893 the society has a discretionary power. The section_says: "The committee may distribute." In the former enactment, the Industrial and Provident Societies Act, 1876, s. 11, sub-section 6, the language was different, for the word "shall was used. The inference to be drawn from this change of language is in favour of the society's contention. Herbert Lush, for the plaintiffs, admitted that an action would not lie against the society under section 27. WILLS, J.-I am of opinion that the contention of the defendant society as to the construction of section 27 is right. Assuming a state of facts which would entitle the committee of the society to act at all, action by them under the section is purely discretionary. Unless a member of the society has died intestate without any nomination of his property in the society subsisting at the time of his death, they cannot act under it at all; but even if these facts are proved, the section goes on, "the committee may' "distribute the funds among such persons as appear to them entitled by law to receive the same. The change of language from that of section 11, sub-section 6, of the Act of 1876, which dealt with the same subject, is very significant, for in that section the word "shall" was used, and it appears to me that the change of language from "shall" to "may was intentional and deliberate. The decision, however, does not and cannot relieve the society of the real difficulty in the case, which is the doubt that may remain whether the nominee was dead, and |