APPENDIX OF CASES. 
221 
between the society and the members as members,’ and not 
in any other capacity. That being our opinion on consider 
ation, the plea which set up this necessity of the arbitration 
as a bar to the whole question raised by the plaintiffs, 
part of which clearly was not between the society and the 
defendant as a member, if the rest was, is a bad plea. The 
demurrer, therefore, to the plea must be allowed, and the 
plaintiffs will be entitled to judgment. We have abstained 
from expressing any opinion whether, if this had not been 
so, the particular case before the court was such as to fall 
within the doctrine in Crisp v. Bunbury—it may or may 
not be ; and it is clear that on the present record, the 
plaintiffs are entitled to judgment.” See also upon this 
point Fleming v. Self, 1 Kay, 518, and the recent case of 
Mulkern v. Lord, in the House of Lords (4 App. Cas. 183 ; 
V April, 1879), where Earl Cairns, L. C., held that it was 
impossible that the rights of mortgagor and mortgagee, 
especially those of foreclosure and redemption, could be 
enforced or adjusted by such a reference to arbitration 
as is provided by 10 Geo. 4, c. 56, s. 27, and therefore that 
the provisions of that Act are not applicable to those pur 
poses of a benefit building society which involve the 
adjustment of rights created by mortgage. In this decision 
Lords Hatherley and O’Hagan concurred, quoting with 
approval the remarks of Lord Cranworth in Fleming v. 
Self, that the “total absence of adequate machinery for 
enabling arbitrators to enforce any award they might make 
on the mortgage, in a case like the present, affords cogent 
evidence that the dispute is not within their competency.” 
It may be remarked that this decision turns upon the 
application of the 10 Geo. 4, c. 56, to benefit building 
societies established under the Act of 1836, and not in 
corporated under that of 1874 ; and it does not over 
rule the decision of the Master of the Rolls in Wright v. 
The Monarch Investment Building Society, 5 Ch. D. 726, 
where the plaintiff sought an account against a society 
incorporated under the Building Societies Act of 1874, of 
money due to him in respect of an alleged overcharge upon 
his mortgage; and Sir G. Jessel, M. R., held that the 
jurisdiction of the court was ousted. That case, however, 
turned upon the construction of the Building Societies 
Act, 1874, and is not applicable to a friendly society nor to 
any industrial and provident society except possibly to 
such as carry on the trade of the buying and selling of 
land, and provide by their rules for making advances to 
members on mortgage. 
The claim of. a society upon its treasurer for misappro