Hornby v Close (1867): Freedom of Contract and Freedom of Trade

Abstract

Close also joined the United Society of Boilermakers and Iron Shipbuilders. This trade union had been founded in 1834, and opened its Bradford branch in 1842. The Society's rules emphasised that its purpose was to provide for mutual relief and other benevolent purposes; 16 in keeping with the boilermakers' elevated position, its entrance fees were 'very high' and its benefits 'extremely generous'. 17 It also supported its members during strikes, 18 which became increasingly frequent as trade boomed in the early 1860s. 19 By 1866, the Society had over 9,000 members and held almost £20,000 in funds. 20 In 1865, Close was the treasurer of the Boilermakers' Bradford branch, entrusted with the key to its all-important cashbox. 21 Then disaster struck: the branch's accounts were audited by William Swan, a Society official, who found that Close owed the union almost £25. This was a sizeable sum, representing several months of a boilermaker's wages. The union initially sought to deal with the matter internally, but Close was unable to come up with the money. After six months, the Boilermakers lost patience; in January 1866, an information was laid against Close in the name of John Hornby, the branch president. 22 The Society, no stranger to thieving officers, 23 was determined to make an example of Close: its trade report stormed that he would not 'rob us with impunity'. 24 Earlier in the century, the Society would have been less bullish. At common law, an unincorporated association could only take legal action if all of its members acted in concert, a difficult task for a union to orchestrate. Furthermore, it was not a criminal offence for a member to embezzle the association's joint property, since he was one of its owners. 25 Improved statutory protection, however, was gradually extended to favoured organisations. In 1793, Parliament had 16 Mortimer (n 13) 51-3.