And, when Joyce tells the solicitors of the plaintiff that the ship is the property of the plaintiff, can he, or the assignees who claim under him, be heard to allege the contrary as to a fact which must have been entirely within his own knowledge?

On a review of all these circumstances, which are all consistent with each other, and which mutually strengthen each other, we have come to the conclusion that the property in The Britannia passed to the plaintiff as she advanced in her progress towards completion; and, if this be so, it was scarcely contended but that the same decision ought to be come to with respect to the engines, plates, irons, and plankings designed and in a course of preparation for her, and intended to be fixed in her. The question as to these last seems to be governed by the decision as to the rudder and cordage in Woods v. Russell.

In the course of the argument we intimated our opinion that special damage beyond the mere value of the property might be recoverable; and we remain of that opinion.

Our judgment, therefore, will be for the plaintiff, with the usual costs.

*BURTON v. TANNAHILL. Jan. 12.

[*797

An action for goods supplied for the use of a society, instituted under stat. 15 & 16 Vict. c. 31, must by stat. 17 & 18 Vict. c. 25, s. 1, be brought against the registered officers of the society, appointed to sue and be sued, where there are such officers: and it cannot be maintained against an individual member of the society.

ACTION for goods sold and delivered, and on accounts stated. Plea: Never indebted. Issue thereon.

On the trial, before Cresswell, J., at the last Surrey Assizes, it appeared that the plaintiff had supplied with flour and other articles a society called The Stratford Economical Bread and Flour Association; and that defendant was a member of the Society and one of the committee of management. The plaintiff had also become a member before. all the articles were supplied. The rules of the Society were put in: and it appeared to have been established under the Industrial and Provident Societies Act, 1852 (15 & 16 Vict. c. 31, "To legalize the formation of Industrial and Provident Societies"), for the purpose of carrying on the trade of a bakery. It was proved that the Society had been registered, and that two officers had been appointed and registered, to sue and be sued on behalf of the Society. The counsel for the defendant objected that the action would not lie against the defendant, on the grounds stated in the rule after mentioned. The learned. Judge reserved leave to move to enter a verdict for the defendant: and the plaintiff had a verdict.

Pearson, in last Term, obtained a rule Nisi to enter a verdict for the defendant, on the grounds: First, that, on the facts proved at the

trial, the verdict ought to be so entered; Second, that the *798] defendant was only liable, if at all, as member of a society instituted under the Provident Societies Acts, the 15th and 16th Victoria, chapter 31, and 17th Victoria, chapter 25, and that he cannot be sued individually under the 1st section of the latter Act, but that the action should have been brought against one of the public officers of the Society directed by those Acts to be appointed to sue and be sued on behalf of such Society; Third, that the plaintiff and defendant, being both members of the said Society, were partners, and therefore one could not sue the other at law."

H. Hawkins now showed cause.-The second ground (which, if valid, entitles the defendant to the verdict) rests upon stat. 17 & 18 Vict. c. 25 (To amend the Industrial and Provident Societies Acts, 1852"); sect. 1 of which enacts that, "After the passing of this Act, no suit or proceeding shall be commenced or prosecuted by or against the trustees of any society registered under the Industrial and Provident Societies Act, 1852, except in the case hereinafter provided; but all suits and proceedings, whether at law, in equity, or in bankruptcy or sequestration, or otherwise howsoever," "by or on behalf of any such society, against any person or persons, whether bodies politic or others, and whether members or not of such society, shall be commenced and prosecuted in the name of one of the two officers for the time being appointed to sue and be sued on behalf of such society, and registered in pursuance of the directions for such appointment and registration respectively hereinafter contained; and all suits and proceedings whether at law or in equity, or by or on behalf of any *person or persons, whether *799] bodies politic or others, and whether or not members of such society, against such society, shall be commenced and prosecuted against such officers, or if there shall be no such officer for the time being, then against the trustees of the said society." Sect. 2 gives directions for the appointment and registration of such officers; and that has been done here. But the action is not "against such society;" the section seems to apply only where the society is sued as a corporation, or where the trustees are sued for all. [WIGHTMAN, J.-All the members might have been sued here. Lord CAMPBELL, C. J.-They do not constitute a corporation; they are only an aggregation of individuals.] Stat. 15 & 16 Vict. c. 31, by sect. 8, enacts that "all the provisions of the laws relating to Friendly Societies shall apply to every society to be constituted under this Act, and to every officer and member of such society, and to every proceeding under this Act, except so far as any such provision may be expressly varied by this Act, or by any rule expressly authorized to be made by this Act." [COLERIDGE, J.-But stat. 17 & 18 Vict. c. 25 recites that clause, and that "it is expedient to vary the provisions of such laws in relation to societies registered under the Act aforesaid, so far as concerns the manner in which legal proceedings

shall be carried on in any matter concerning such society;" and then follows sect. 1, to which you referred.] That leaves open the same question, whether this is a proceeding against the Society. Now the Friendly Societies Act, 13 & 14 Vict. c. 115 (To consolidate and amend the laws relating to Friendly Societies") defines, by sect. 2, the objects for which Friendly Societies may be instituted; sect. 13 vests the property in trustees, and directs that they shall sue and [*800 be sued in all cases concerning the property, right, or claim aforesaid of such society." That indicates the sort of proceeding which may properly be said to be brought against the society. Thus, if, after flour here had been delivered on the premises of the Society, any person had damaged it, the trustees might have sued under stat. 13 & 14 Vict. c. 115: and, if the suit had been instituted after stat. 17 & 18 Vict. c. 25, the action, if brought otherwise than as there directed by sect. 1, would have failed. Sect. 11 of stat. 15 & 16 Vict. c. 31, clearly points to a distinction of this kind; for it enacts that "nothing in this or the said recited Act" (13 & 14 Vict. c. 115) “shall be construed to restrict in anywise the liability of the members of any society established under or by virtue of this Act, or claiming the benefit thereof, to the lawful debts and engagements of such society." [CROMPTON, J.-Why may not there be an action against the officers, and then a proceeding against the individuals to obtain the fruits of the judgment? WIGHTMAN, J.-Just as in the case of joint stock companies. CROMPTON, J.-That seems the very object of the enactments.] Sect. 5 of stat. 17 & 18 Vict. c. 25, enacts that judgments obtained against the officers may be enforced as if they had been obtained against the trustees, still showing that the actions contemplated were those against parties representing the whole society. Sects. 9 and 10 suggest the same view. [WIGHTMAN, J.-You could not sue the Society, properly speaking: but you might be compelled by pleas in abatement to sue all the members.]

Pearson, contrà, was not called on to support his rule.

*Lord CAMPBELL, C. J.-It seems to me that this action [*801 might be maintained against an individual except for stat. 17 & 18 Vict. c. 25. But sect. 1 of that statute applies to this society, and to an action of this kind. I have heard nothing which tends to show that we ought to adopt a more limited construction.

COLERIDGE, J.-Really, if we were to assent to Mr. Hawkins's distinction, we should defeat the object of the Act.

WIGHTMAN, J.-I am of the same opinion: and certainly sect. 1 removes a great inconvenience.

CROMPTON, J., concurred.

Rule absolute. (a)

(u) See Guthrie v. Fiske, 3 Stark. 151 (E. C. L. R. vol. 3); Steward v. Greaves, 10 M. & W. 711.†

THOMAS SUNDERLAND HARRISON v. EDWIN BUSH.

Jan. 12.

THE decision respecting the taxation of costs in this case is reported, together with the decision on the rule for entering a verdict for the defendant, ante, p. 358.

*802]

*JEFFERIES v. The GREAT WESTERN Railway Company.

Jan. 14.

Trover. Pleas: Not guilty, and not plaintiff's property. At the trial it appeared that plaintiff was in possession of goods which he claimed as his own property, under an assignment to him from 0. Defendants seized the goods in plaintiff's possession, claiming them under an assignment from O. to them, made whilst O. was in apparent ownership of the goods, but of a later date than the assignment to the plaintiff. This was the conversion. The defence was that the assignment by O. to the plaintiff was fraudulent as against the defendants. This was left to the jury, who found for the plaintiff. The defendants also offered as a defence to prove that O. had become bankrupt before plaintiff took possession, and that the goods were in his order and disposition, and therefore vested in the assignees before the conversion. The Judge refused to permit this defence. On a motion for a new trial,

Held that the Judge did right; for that, the plaintiff being in possession, and the defendants being wrongdoers not claiming in any way under the assignees, defendants could not set up the jus tertii as a defence in trover.

TROVER for trucks. Pleas: 1. Not guilty. 2. That the trucks were not the property of the plaintiff.

On the trial, before Pollock, C. B., at the last Gloucester Summer Assizes, the plaintiff proved that he had possession of the trucks in question, which he claimed as his own property under an assignment from one Owen, and that the defendants had seized them, also claiming them as their own property under an assignment from Owen, executed after the assignment to the plaintiff, but before the plaintiff took possession, and whilst Owen was apparent owner of the goods. The defendants' counsel, in opening their case, stated that he should contend that the assignment to the plaintiff was fraudulent and void against the defendants, and that in addition he should prove that, before the plaintiff took possession of the trucks, Owen had become a bankrupt, having the goods in his order and disposition by consent of the plaintiff, and that the Court of Bankruptcy had made an order that they should be sold for the benefit of the creditors under the bankruptcy; so that, at the time of the conversion, the goods were not the plaintiff's, and the defendants if responsible at all for the conversion were responsible to the assignees of Owen, not to the plaintiff. The learned *8031 Chief Baron then stated that, unless some evidence was given that the defendants claimed under the assignees of Owen, he should reject any evidence of their title, as the defendants, if wrongdoers, could not set up the jus tertii as a defence. The defendants' counsel, after arguing against this ruling, in submission to it abstained from tendering

any evidence to that effect. The other question went to the jury; and plaintiff had a verdict.

Keating, in last Michaelmas Term, obtained a rule Nisi for a new trial on the ground of misdirection, and also upon affidavits as to facts tending to show that the assignment to the plaintiff was fraudulent.

Whateley and Phipson now showed cause.-The ruling was correct. The plaintiff was in actual possession of the goods in question, with at least a claim of title. The defendants, as it now must be taken, wrongfully seized the goods in the plaintiff's possession; and the question is whether, under those circumstances, they can set up the title of a third party as a defence. If there had been privity between the plaintiff and defendants, as would have been the case if the defendants had been acting as warehousemen for the plaintiff, they would have been precluded from questioning the plaintiff's title in any way. As it is, they might show title in themselves, or in any third person for whom they were acting: but, if mere wrong-doers, they cannot show title in a third party; for mere possession is sufficient title as against a wrongdoer; Newnham v. Stevenson, 10 Com. B. 713 (E. C. L. R. vol. 70), Stevenson v. Newnham, 13 Com. B. 285 (E. C. L. R. vol. 76). [CROMPTON, J.-In *both cases the decision was upon the ground that the [*804 plaintiff had title, voidable but not avoided, at the time of the conversion. In the judgment in Newnham v. Stevenson, 10 Com. B. 722, it is expressly said: "It is not necessary to determine whether the bare possession of a mere wrongdoer will, as against a mere wrongdoer, entitle the former to maintain trover or trespass: nor need we, upon the present occasion, advert to the distinction in this respect between trover and trespass, recognised by the civil law, and noticed in many cases." The right of the mere wrong-doer to maintain tresspass against a person unjustifiably depriving him of his possession seems clear enough on principle: but whether he can in trover recover as damages. for the conversion the whole value of the property has not been, I think, as yet decided. It seems hard if the person converting goods is to pay the full value both to the wrongdoer in possession and to the true owner, of whose title, it may be, he was ignorant till after the conversion.] Fyson v. Chambers, 9 M. & W. 460,† is an authority that the jus tertii cannot be set up. Leake v. Loveday, 4 M. & G. 722 (E. C. L. R. vol. 43), may be relied on by the defendants; but that case is explained in the judgment of the Court in Newnham v. Stevenson, 10 Com. C. 724. [The argument on the affidavits is omitted.]

Keating and Scotland, in support of the rule.-There is a distinction between trespass and trover; in the latter case the gist of the action is property; and this defence is admissible at least in reduction of damages. [WIGHTMAN, J.-The proposed defence, which the Chief Baron