drawing the names of the arbitrators, and send the Complainant notice by post at least two days before the time of such drawing. That the expense of arbitration not exceeding 20s. shall be paid by the losing party, or otherwise as the arbitrators may determine. In case of an arbitrator being a member or other officer of the company, or refusing or neglecting to act, he shall cease to be an arbitrator, and every vacancy then shall be filled up at the next monthly or special meeting of the society."

The bill also stated that, on the 1st of July 1854, the Plaintiffs protested against being bound or affected by such alterations, and refused to comply therewith; and accord-[217]-ingly the society appointed arbitrators in conformity with the 29th rule, as certified in 1852.

That the arbitrators met on the 7th of August 1854, when the solicitors of the Plaintiffs objected to the alterations in the 24th and 29th rules being applied to the cases of the Plaintiffs. The arbitrators made three awards, all dated the 7th of August 1854; and by one of them they awarded that the trustees of the society, and their successors or assigns, should pay to the Plaintiff, Joseph Armitage, on the 7th of March 1859, the sum of £132, 10s., and £36, 19s. interest thereon; and that the Plaintiff, Joseph Armitage, should pay 20s. for the expenses of the said arbitration; and, by another, they awarded that the said trustees, their successors or assigns, should pay to the Plaintiff, Eliza Armitage, on the 7th of December 1858, the sum of £62, 10s., and £16, 13s. 4d. interest thereon, and that she should pay 20s. for the expenses of the said arbitration; and, by the remaining award, they awarded that the said trustees, their successors or assigns, should pay to the Plaintiff, George Best, on the 7th of December 1858, the sum of £12, 10s., and £3, 6s. 8d. thereon, and that be should pay 20s. for the expenses of the said arbitration.

The bill prayed a declaration that the Plaintiffs were not bound by the awards, and an injunction to restrain the Defendants, and the society and its officers, from enforcing the same; and a declaration that the Plaintiffs were not bound by the alterations of the 24th and 29th rules, but were entitled to the benefit of the 24th and 29th rules as the same were certified in 1852; and that the Plaintiffs were entitled to immediate payment out of the funds of the said society of the amount of the principal moneys paid to them in respect of their respective shares, with interest thereon respectively at £5 per cent. per annum, from the expiration of the first year of their respective memberships; and also to the im-[218]-mediate payment of shares of the profits made by the society up to July 1853, in proportion to the amounts of their said respective shares in the said society; and that an account ought to be taken of what was owing to the Plaintiffs respectively on account of such principal and interest and shares of profits; and that the Defendants, the trustees, might be decreed forthwith to raise out of the funds of the said society the respective amounts which should be so found due and owing to the Plaintiffs respectively for such principal, interest and shares of profit, and, if necessary for that purpose, should be decreed to call in the moneys which had been lent by the society, or a sufficient part thereof; and that the Defendants might be restrained, by injunction, from lending out any further part of the property of the society by way of loan, which should not be immediately repayable or available for the purposes of the society, until the amounts so claimed to be payable to the Plaintiffs respectively should have been discharged; and, if necessary, for an account of the amounts of the funds of the society which had been lent out on security or loans not immediately repayable or available for the purpose of meeting the claims of the said society.

Mr. Bagshawe, jun. (Mr. Rolt, Q.C., with him), for the Plaintiffs.

The award is bad, and the Plaintiffs seek to have it removed out of their way, and to have immediate payment of their claims with interest. [THE VICE-CHANCELLOR. If the question be the subject of arbitration, it has been decided in Ex parte Payne (5 Dowl. & L. 679) that this Court has no jurisdiction.] But if the award be bad the Plaintiff's cannot be [219] obliged to go again before the arbitrators, who, of course, will make again the same award, and therefore this Court must have jurisdiction: Heming v. Swinnerton (2 Ph. 79), Nichols v. Roe (3 Myl. & K. 431). On the face of it this award is bad; because it postpones the time of paying the principal and interest monies awarded to be due to the Plaintiffs, it does not award anything for profits, according to the 24th rule, and the interest awarded is computed from the date

of the award. [THE VICE-CHANCELLOR. The principal sums awarded probably consist partly of interest, which would be capable of computation to the date of the award; the interest awarded is only in respect of the time subsequently to elapse before payment.] The calculation shews that it is not so. Then the sums of 20s. awarded for costs are so awarded under a rule made after the withdrawal of the Plaintiffs, and which cannot be binding upon them.

Mr. Daniel, Q.C., and Mr. Selwyn, for the society, were not heard.

THE VICE-CHANCELLOR Sir W. PAGE WOOD. I do not mean to express any opinion upon the principal point which has been raised. I think it is a grave question that might require a great deal of consideration. Mr. Bagshawe has done ample justice to the case on his part. But the first and primary consideration for any Court is that, by the 27th section of the 10 Geo. 4, c. 56, the Legislature intended carefully to provide that these societies should not be dragged before Courts of law or Equity if [220] it could possibly be avoided, and has taken care to enact that the whole discussion of their affairs shall be disposed of in a cheap and summary manner, by the decision of an arbitrator or justice, as the parties shall choose; and when they have once made their election the power of the justice or of the arbitrator, acting always within the rules of the society, is complete, and is not subject to revision by any Court of law or Equity. That is the primary matter to which attention must be drawn; and it is necessary to be extremely careful that the jurisdiction of this Court shall not be set up to control the arbitrators so selected, except upon a very clear and distinct case being made out of their abuse of their office.

Now the question I have before me is this: The Plaintiffs are members who have retired under certain rules which were in force at the time of their retirement. Indeed, I may go further back. Before I consider the rules of the society I take the purposes of the society to be defined by the 6 & 7 Will. 4, c. 32. The preamble of that statute recites that, "Whereas certain societies called building societies have been established in different parts of the kingdom, principally amongst the industrious classes, for the purpose of raising, by small periodical subscriptions, a fund to assist the members thereof in obtaining a small freehold or leasehold property, and it is expedient to afford encouragement and protection to such societies and the property obtained therewith;" and then the 1st section enacts "that it shall and may be lawful for any number of persons in Great Britain and Ireland to form themselves into and establish societies for the purpose of raising, by monthly or other subscriptions of the several members of such societies, shares not exceeding the value of £150 for each share, such subscription not to exceed in the whole twenty shillings per month for each share, a stock or fund [221] for the purpose of enabling each member thereof to receive out of the funds of such society the amount or value of his or her share or shares therein, to erect or purchase one or more dwelling-house or dwelling-houses or other real or leasehold estate, to be secured by way of mortgage to such society until the amount or value of his or her shares shall have been fully repaid to such society with the interest thereon." Therefore every man entering into a society of this description knows that its primary purpose is to enable all those who are at the time, or may become, subscribers to raise a fund out of which they shall be able to make purchases of land and buildings; and that the mode of doing this is by means of advantageous investments on which they are empowered to lay out the money subscribed, principally with their own members. Under that Act this society was formed; and the powers, objects and duties of the directors are defined by the 12th of its rules, which points out the general objects of the society. [His Honour read the first part of this rule.] A subsequent part of the same rule enables the directors to lay out money for the repairs of the property. And it is also provided that directors may take mortgages which are not to last more than ten years.

The Plaintiffs, then, became members of a society, the object of which the Legislature has provided shall be to raise capital for purchasing property by investing the subscribed money at high rates of interest. The society was also to be at liberty to lay out large sums of money in building and otherwise at interest; therefore, upon the very face of the thing, the Plaintiffs must have foreseen that from time to time the funds of the society would be largely applied for the various purposes which it had generally in view, and that the object of the society would mainly be so to

apply its funds as to realise considerable profits in order to enable the members who might belong to it from time to [222] time to become holders of land and houses. I may call this the business of the society. Then there is a rule which enables members to withdraw on certain terms. [His Honour read the 24th rule.]

It is not distinctly stated at what time the payment thus directed is to be made. It is to become a debt immediately due.

Referring again to the 12th rule as to the powers of the directors, I find that they have power to direct payment out of the funds of the society, amongst other things, "of all claims upon the funds of the society, allowed claims upon the funds by members being discharged in the order as to time at which they arise." I think, upon the face of that rule, it was contemplated that there would arise the case of allowed claims not to be discharged instanter. One can hardly give any other sense to that clause. It has been suggested that it may mean, as no doubt it does amongst other things, other claims on the society by the withdrawing members. But still a withdrawing member is pro tanto a member, for the purpose of having a claim allowed; and if it is necessary to refer to any authority, that is proved by the case of Ex parte Payne (5 Dowl. & L. 679). He is treated as a member, for the purpose of the arbitration, until his rights are determined. I will not say that he is to be bound by rules subsequently made. I am not considering it in that point of view; but he is certainly within the terms of allowed claims upon the fund by members which are to be discharged in the order as to time in which they arise. The Plaintiffs, then, being members of a society like this, bound by all its rules and regulations, and the object of the society being to carry on their business and to obtain other profits, and the directors being empowered to pay claims [223] according to the order in which they arise, shewing that it was contemplated from the first that there might not be funds at the time when a claim itself became due; and the only clause as to withdrawing members expressing that they are to be entitled to receive certain payments out of the funds with a provision for payment of interest at £5 per cent., which would be a compensation for any delay in making payment-I think under those circumstances I should have held, independently of the new rules which were afterwards made, that it was competent to any arbitrator, in a matter of this kind, to look at all the affairs of the society to determine what was just, proper and right to be done; and, considering the powers of the directors to see how far, consistently with the general objects of the society being carried out, the withdrawing members could be conveniently paid-the directors have power to decide upon it prior to dispute, but, in case of dispute, the arbitrator having authority to settle the matter for them-it would then be competent for him to take upon himself those duties, and to say I have examined the whole of this matter; I am of opinion that the payment should be made at a certain fixed time, at which time I, looking at all the affairs of the society, think there will be funds in hand properly applicable to this particular debt.

Then I have to consider whether the rule which was afterwards made as a modification in some sense of the 24th rule affected the rights of the Plaintiffs. As the awards upon the face of them awarded 20s. to be paid in respect of costs, I could scarcely avoid coming to the conclusion that the arbitrator in making his awards had before him the new rules, because one of such new rules refers to the payment of 20s.

The question remains whether that new rule at all varied the condition of the Plaintiffs. I apprehend that the only [224] effect of that rule, as I read it, was to restrict the powers of the directors. His Honour read it.]

It took it out of the power of the directors to say: "We are the judges of what is the best mode of effecting these several purposes; what is the order of paying the claims and the order of the money to be laid out in future.' They were to be tied down and not allowed more than a certain sum of money out of these funds in the settlement and liquidation of these particular claims. Even if the arbitrator did look at that rule, all the effect of it was that when the matter was referred to him the whole power, in fact, was taken out of the directors, if I may so express it, and it was referred to him to act for all parties, both for the directors and the others, to direct anything to be done by them that they had the power to do, and he was to determine what was fit and proper to be done with regard to the whole case; and I think, if he

did regard the new rule, he did not decide any more than he had full power to do under the old rules.

Other difficulties have been suggested on the face of the awards. I think that I cannot consider anything which is not upon the face of the awards. The only reason for my entering into this question is because, on the face of the awards, there is that 20s.; otherwise I should be perfectly clear that the arbitrators were acting within their jurisdiction, and cannot be controlled in respect of any error alleged upon extrinsic evidence or anything short of corruption. This very case shews the enormous inconvenience that would arise, because here is a mass of evidence of all that passed before the arbitrator, upon which I cannot form any judgment, nor have I any right to form any judgment whether the arbitrator was right or wrong in the conclusion to which he has come. All that I have to look to is whether there is any error upon the face of the award, or whether it appears that the arbitrator has [225] decided otherwise than according to the rules and regulations of the society. I find, then, upon the face of the award that he awarded so much principal money to be paid and so much interest.

Now, in the first place, it is argued that nothing was awarded in respect of profits, and that the arbitrator ought to have said whether there was anything due for profits or not. In strictness, I have no right to know how many payments the Plaintiffs have made. He has awarded, for instance, £132, 10s. principal and £36, 19s. 11d. for interest thereon. For aught I can understand, or for aught that I have a right to know, the £132 may include the profits. The arbitrator may have followed the Act and awarded a lawful sum and awarded interest thereon. I have no right to know anything more. In point of fact it appears, if I had a right to look at it, that the £132, 10s. is the exact amount of the payments made and nothing more. If it be so the substantial way of considering it would be to say that he has awarded no profits. Mr. Bagshawe. It was proved in the cause.

THE VICE-CHANCELLOR. My difficulty is, what right I have to know it. All I have to look at is whether there is any error on the face of this award, unless you can prove corruption. If he had awarded £100, although this Plaintiff had paid £132, the Plaintiff could not, by proving that, touch this award. The arbitrator may have been mistaken upon the evidence, but I could not get behind the award, unless the error was so gross as to amount to evidence of corruption. Otherwise I should have to try the whole case over again, which is the very thing which, in all these cases, is intended to be avoided. I must take it to be an award that the sums mentioned are the whole principal moneys due to these parties.

[226] Then, with respect to the interest, the objection is still stronger. It is a very nice calculation of interest, by no means an easy matter. Mr. Bagshawe said that, if I added up this sum, I should find that it would give 5 per cent. from the date of the award, with an additional year's interest. How am I to know whether that is rightly calculated? It is a somewhat nice calculation upon these payments of £2, 10s. per month and £1, 8s. per month and interest from those respective months and days of payment. In other words, it would come to this, that the arbitrator is wrong in matter of fact. That I cannot touch unless it appears on the face of the award.

The only thing that might have made it necessary to hear counsel for the defence was what I think to be a point of some nicety, namely, how far the Plaintiffs would be bound by rules made subsequently to the time of their having given notice to withdraw, that is, as to the sum of 20s. ordered to be paid for expenses of arbitration. The arbitrator had only power to order that to be done by a rule passed after the parties withdrew. There was no rule previously enabling him to award anything for costs. But it is a matter which is clearly severable. Where part of an award is extra vires and severable the Court rejects that part and upholds the rest of the award. I understand no claim is made or ever has been to this 20s.

Mr. Daniel. It was never suggested.

THE VICE-CHANCELLOR. That seems to be the only thing that the Court could properly interfere to restrain. If it had been a larger sum it might have been considered important enough to have the point argued. If it had been discussed, and if upon the argument I should have been satisfied that it was extra vires, all I should have done would have been to stay the proceedings as to that part [227] which is

extra vires. I understand it has never been claimed, and I think it ought not to alter my decision in this case. Therefore, I think it is incompetent to me, and I must say I am not at all sorry that it is; for I think it is of the utmost importance that these societies should not be urged into this sort of litigation-it is wholly incompetent to me to deal with this award, and I must therefore dismiss the bill with costs.

[227] COGSWELL v. ARMSTRONG. Dec. 12, 14, 1855.

[S. C. 1 Jur. (N. S.) 1162.]

Wills. 7 Will. 4 and 1 Vict. c. 26, s. 25. Lapsed Devise. Residuary Devise.
"All other."

Testator by his will, in 1847, devised specific real estate to his daughter M., and, after making several specific bequests, devised and bequeathed all other real and personal estate of which he might die possessed to M. and others of his children. M. died in his lifetime. Held, that the devise expressed by the words "all other," &c., was a residuary devise within 7 Will. 4 and 1 Vict. c. 26, s. 25, and included the real estate devised to M.

John Armstrong, by his will, in 1847 devised to his daughter Maria, her heirs and assigns, all that his messuage and hereditaments (describing them) at Brampton in Cumberland; and he charged the said property with the payment of £100 to his daughter, the Plaintiff, which he gave and bequeathed to her; and, after making several specific bequests, he devised as follows:-" And I give, devise and bequeath all other real and personal estate of which I may die possessed unto and equally among my children" [then followed the names of all the testator's children (six in number) other than the Defendant Thomas, his eldest son and heir at law, but including Maria], "and their several heirs, executors and administrators."

Maria died in the testator's lifetime.

The question was whether the Brampton estate, devised [228] to Maria, passed by the subsequent devise of "all other" real estate of which the testator might die possessed, or whether the heir was entitled to that estate freed from the legacy of £100.

Mr. James, Q.C., and Mr. Cairns, for the Plaintiff.

On Maria's death the devises to her lapsed, and the devised estate at Brampton became part of the residuary devised real estate. To Maria's share in that residuary devised real estate, including the Brampton estate, the Defendant Thomas, on the testator's death, became entitled as his heir at law; but that share is all to which he became entitled.

The words "all other real estate of which I may die possessed" are a residuary devise within the 25th section of the stat. 7 Will. 4 and 1 Vict. c. 26. There can be no distinction between the words "all other" and "all the rest.'

Evans v. Jones (2 Coll. C. C. 516) was a stronger case than the present against extending the residuary gift; and Wainman v. Field (Kay, 507) depended upon special circumstances (Id. 513), which here do not occur.

Mr. Daniel, Q.C., and Mr. H. R. Bagshawe, for the Defendant, Thomas Armstrong.

By the death of Maria in the lifetime of the testator the Defendant Thomas, as the testator's heir at law, became entitled to the whole of the devised estate at Brampton, freed from the legacy of £100 bequeathed to the Plaintiff.

[229] The 25th section of the Act does not apply. That section speaks of "the residuary devise, if any, contained in the will." It presupposes a residuary devise, and has no application where there is none. Here there is no residuary devise within the meaning of the 25th section. The word "other" means other than the real estate previously devised. How then can it include that estate? The rule that the heir at law is not to be disinherited unless by a devise clearly and unambiguously expressed

is still in force.