APPENDIX  OF  CASES.

221

between  the  society  and  the  members  as  members,’  and  not
in  any  other  capacity.  That  being  our  opinion  on  consideration, ­
  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  purposes ­
  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  incorporated ­
  under  that  of  1874  ;  and  it  does  not  overrule ­
  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 ­