quence was that trade union funds were at the mercy of dishonest officials. An agitation ensued and the particular hardship was temporarily met by the Act of 1869, 32 and 33 Vic. c. 61; but a permanent arrangement was necessary, and the whole question of the civil status of trade unions came under review by the Royal Commission which was presided over by Sir W. Erle and which led to the legislation of 1871. 19. We may say at once that there is nothing in the history of that legislation (as distinguished from the words of the Statute) which bears on the subject of the liability of trade union funds for tort, but as an argument has been founded on the fact that Parliament abstained from providing for the incorporation of trade unions- which, unless qualified, would have made them liable to actions of tort—it may perhaps be convenient that we should describe in some detail the course of proceedings. 20. To begin with the Commission; it heard the unionists who stated their grievances, but among those grievances was not included the liability of trade unions to be sued in tort, because they had never suffered from it. If workmen had been asked whether they were willing that their unions should be liable to be sued in tort, and their funds taken in execution, they would presumably have objected. As it was, their desire may be generally described to have been a desire to have protection for their funds, but in other respects to be left alone. They wished to have as little to do with the law courts as possible. 21. In considering what it should recommend as the status for trade unions, the Commission was confronted with this difficulty. If trade unions remained unlawful associations, their funds would be without legal protection. If unions were incorporated, and otherwise altogether legalized, then, as one consequence, the contracts of a union with its members would. be enforceable on either side. This result neither commended itself to the Commission nor was asked for by any party. Some middle course was necessary. The Commission did not recommend incorporation. The majority recommended a system of registration "which would give to unions capacity for rights and duties resembling in some degree that of corporations " but which apparently would confer upon them little more than protection to their funds in case of misappropriation, and such registration was to be conditional on the rules of the trade union not contemplating certain objects, which, in the opinion of the Commissioners, were reprehensible (e.g., rules against nonunionists). The minority recommended registration for all trade unions, not having a criminal object, indiscriminately; such a registration to carry with it protection for their funds. The special question of actions of tort, and the practical difficulties, under the then existing system, of enforcing liability against trade unions do not seem to have engaged the attention of the Commissioners, or to have been discussed by them. But certainly they did not recommend any exemption from such actions. 22. As the bill passed through Parliament the question of liability for tort was not raised. The Government in the main followed the recommendation of the minority of the Commission. They proposed a qualified legalization of trade unions (whether of employers or employed). The legalizing sections were Sections 2 and 3, 34 and 35 Vic. c. 31 Section ii. The purpose of any Trade Union shall not by reason merely that they are in restraint of trade be deemed to be unlawful, so as to render any member of such trade union liable to criminal prosecution for conspiracy or otherwise. Section iii. The purposes of any trade union shall not by reason merely that they are in restraint of trade be unlawful, so as to render void or voidable any agreement or trust. And the qualifications on this legislation are to be found in Section 4; Section iv. Nothing in this Act shall enable any court to entertain any legal proceeding instituted with the object of directly enforcing or recovering damages for the breach of any of the following agreements, namely: 1. Any agreement between members of a trade union, as such, concerning the conditions on which any members, for the time being, of such trade union shall or shall not sell their goods, transact business, employ or be employed. 2. Any agreement for the payment by any person of any subscription or penalty to a trade union. 3. Any agreement for the application of the funds of a trade union: (a.) To provide benefits to members; or (b.) To furnish contributions to any employer or workman not a member of such union in consideration of such employer or workman acting in conformity with the rules or resolutions of such trade union; (c.) To discharge any fine imposed upon any person by sentence 4. Any agreement made between one trade union and another; or tioned agreements. But nothing in this section shall be deemed to constitute any of the above-mentioned agreements unlawful. 23. The broad effect of this part of the Act is that trade unions ceased to be any longer unlawful societies by reason of their purposes being in restraint of trade, and therefore ceased to be under any disability on account of unlawfulness to sue for the protection of their funds: at the same time the Act did not enable any court directly to enforce agreements between a trade union and its members, or between one trade union and another. The Act said nothing about actions of tort; but one of the results of the statute legalizing trade unions was to enable them to sue others in tort. As to the liability to be sued in tort, this, as has been shown, did not depend on the legality of the trade union: and if the general legal procedure permitted, or should come to permit, a trade union to be sued in tort, there was certainly nothing in the Trade Union Act to prevent it. 24. The enactment in Section 3 constitutes in effect a special exemption to trade unions from certain consequences which might otherwise follow from these purposes being in restraint of trade: it prevents agreements made by or with them being void or voidable. This exemption extended to all trade unions, whether registered or non-registered, and was the only advantage conferred by the Act upon unregistered trade unions. The Act proceeded to enable a trade union at its discretion to register, and on registration such trade union became subject to certain regulations, and also entitled to certain advantages. Amongst the advantages was the exclusive right to its registered name. After the passing of the Act, trade unions were for some time as little before the civil courts as they had been formerly. This was the result partly of Section 4 excluding from the courts cognizance of the contracts in which trade unions, whether registered or non-registered, were chiefly interested; partly of Section 9, which provided that all real and personal property of a registered trade union should be vested in trustees who were empowered to bring or defend all actions concerning such property; and partly of the difficulties previously mentioned, arising from the number of members. 25. Turning now for the moment aside from special trade union legislation we find that the next step was the amendment of general procedure under the Judicature Acts in 1881. The effect of these Acts was to bridge over the differences between Courts of Common Law and Courts of Equity. All the courts became divisions of one court, the Supreme Court, and the distinction was abolished between legal and equitable rules as regards parties to sue and be sued, and in 1883 was issued a General Order, No. 16 of the Supreme Court, Rule 9 of which prescribed that where there are numerous parties having the same interest in one cause or matter, one or more of such persons may sue or be sued, or may be authorized by a court or judge to defend in such cause or matter, on behalf or for the benefit of all persons so interested. 26. This General Order had no special reference to trade unions, and, for a time, was not utilized in their case: and, as before, no action was brought against them in tort. But in 1893 occurred the case of "Temperton v. Russell," L. R. 1893, 1 Q. B. 715, in which officials of three trade unions were made defendants to represent all the members, and on their objecting, it was held by the Court of Appeal that the order was not applicable to the case of a trade union, because the words of the order numerous parties having the same interest in one cause or matter" could only be satisfied by parties who had, or claimed to have, a beneficial proprietary right which they were asserting or defending, and this was not so in the case of a trade union. This decision proceeded, it is obvious, on general grounds which had nothing to do with the question whether trade unions ought to be exempt from actions in tort. It was a decision of a very high, though not the highest, legal authority that trade unions could not be so sued, and it was naturally inferred that if they could not be so sued, they could not be sued at all: at that time it had not been suggested that under the Act of 1871, a registered trade union could be sued in its registered name. 27. The decision in Temperton v. Russell was still in force, when, in 1894, the Royal Commission on Labour delivered their report. Accordingly the Commissioners naturally assumed that a trade union could not be effectively sued in tort. They did not express any opinion on the question, whether as a matter of principle or expediency trade unions ought to be liable to be sued in tort. But an important section of the Commission suggested that the time might come when it might be expedient for a trade union of employers and a trade union of employed to be able to make with each other binding agreements concerning the terms of employment for a limited period, so that in case of default the funds of the defaulting union should be liable for the damages. And they pointed out that for this purpose two changes in the law would be necessary: (1) a modification of Section 4 of the Trade Union Act, which forbids such agreements from being directly enforced; and (2) a grant to trade unions of partial or conditional incorporation so as to remove the difficulty arising from numbers and the want of legal personality. 28. But four of the Commissioners, viz., Mr. Abraham, Mr. Austin, Mr. Maudsley, and Mr. Tom Mann further reported generally on the subject of the liability of trade unions to be sued either in tort or in contract: One proposal made to the Commission by several witnesses appears to us open to the gravest objection. This suggestion is, that it would be desirable to make trade unions liable to be sued by any person who had a grievance against their officers or agents. To expose the large amalgamated societies of the country, with their accumulated funds, sometimes reaching a quarter of a million sterling, to be sued for damages by any employer in any part of the country, or by any discontented member or non-unionists for the action of some branch secretary or delegate, would be a great injustice. If every union were liable to be perpetually harassed by actions at law on account of the doings of individual members; if trade-union funds were to be depleted by law |