200

APPENDIX  OP  CASES.

vested  the  money  in  a  trustee  not  being  treasurer.  It  ivas
agreed  that  the  defendant  should  be  allowed  to  raise  this
point  upon  showing  cause  against  the  rule  to  be  moved  for.
In  Michaelmas  term,  1853,  Atherton  obtained  a  rule  for
setting  aside  the  nonsuit  and  entering  a  verdict  for
plaintiff.
Against  the  rule  cause  was  shown  by  Watson,  Q.  C.,  and
Row  ;  Atherton  and  Cowling,  contra.
Lord  Campbell,  C.  J.—My  brothersCoLERiDGEand  Wightjian
  concur  in  the  opinion  which  I  am  about  to  pronounce  ;
my  brother  Erle  differs  from  us.  During  the  argument  I
entertained  considerable  doubt  respecting  the  point  on
which  the  rule  was  granted,  but,  after  looking  into  the
statutes  on  which  it  depends,  I  think  that  the  objection
taken  to  the  plaintiffs’  right  to  sue  was  not  open  to  defendant, ­
  the  4  &  5  Will.  4,  c.  40,  s.  4,  having  enacted  that  all
rules,  alterations,  and  amendments  thereof,  from  the  time
when  the  same  shall  be  certified  by  the  said  barrister  to
whom  they  were  submitted,  shall  be  binding  on  the  several
members  and  officers  of  the  said  society  and  all  other  persons
having  interest  therein.  The  intention  of  the  legislature
seems  to  have  been  to  give  the  like  effect  to  the  certificate
of  the  barrister  under  4  &  5  Will.  4,  c.  40,  s.  4,  as  was  given
to  the  confirmation  by  the  sessions  under  10  Geo.  4,  c.  56,
s.  8.  I  cannot  doubt  that  when  rules  had  been  so  confirmed
and  made  binding,  a  member  could  not  have  questioned  the
regularity  of  the  manner  in  which  they  were  made.  Under
4  &  5  WilL  4,  c.  40,  s.  3,  a  new  process  for  confirming  the
rules  is  given,  but  the  object  still  was  to  make  them  binding. ­
  If,  notwithstanding  the  precaution  taken,  any  rule
has  been  certified  by  the  barrister  which  was  not  regularly
made,  a  remedy  would  be  open  to  a  member  who  disapproves ­
  of  it  by  moving  its  repeal  or  modification,  and  if  there
be  a  majority  of  the  society  who  agree  with  him,  the  wrong
would  be  redressed.  The  defendant’s  counsel  admit  that
the  certified  rule  is  primd  facie  valid  ;  but  great  mischief
might  arise  if  this  were  only  a  presumption  to  be  rebutted,
as  then  in  every  case  where  a  rule  is  to  be  enforced  evidence ­
  might,  without  notice,  be  given  of  some  alleged
irregularity  in  making  it.  I  cannot  doubt  that  it  would
be  for  the  general  benefit  of  the  friendly  society  that  the
rules,  when  certified,  should  be  considered  binding  till
repealed  or  altered  ;  and  the  language  used  by  the  legislature ­
  seems  to  me  fairly  to  bear  this  construction.  I
therefore  think  that  the  nonsuit  cannot  be  supported  on
this  ground.