or the administrator, as the case may be, and that nothing is payable in respect of the annuities after those dates to the annuitants or anyone else.

Solicitors: A. and G. W. Fox, Manchester; Few and Co., agents for Dixon and Coles, Wakefield; Coward and Hawkesley, Sons, and Chance; Solicitor to the Clearing House.

July 7 and 8, 1921. (Before EVE, J.)

Re QUINN AND THE NATIONAL CATHOLIC BENEFIT AND THRIFT SOCIETY'S ARBITRATION. (a) Friendly Society-Approved by Insurance Commissioners-Adoption of new rules-Award as to validity-Registration of rules-" Conclusive evidence"-Estoppel-Validity of meeting-Ultra vires Representation of branch - Confirmatory resolution--" Dispute ” —Jurisdiction — Friendly Societies Act 1896 (59 & 60 Vict. c. 25), s. 13 (2)— National Insurance Act 1911 (1 & 2 Geo. 5, c. 55), 88. 23 (1), (2) (ii.), 27 (1) (3), 67.

The appellant Q., an insured member and secretary of the central branch of a society, registered under the Friendly Societies Act 1896 and approved under the National Insurance Act 1911, had demanded a fourth arbitration in a dispute between himself and the Society in connection with the 1919 annual general meeting of the general council. The arbitrators gave their award in favour of the society, and the appellant's appeal was referred to and heard by a barrister in Sept. 1920, who stated a special case for the opinion of the court pursuant to sect. 19 of the Arbitration Act 1889. The society's amended rules had been registered under sect. 13, sub-sect. 2, of the Friendly Societies Act 1896 after approval by the Insurance Commissioners under sect. 27 (3) of the National Insurance Act 1911, who were also satisfied that its constitution provided for its affairs being subject to the control of its members.

Questions relating to the validity of rules adopted in place of the old rules, but never approved or registered and another new set of rules adopted in 1918, such questions being of a similar nature to those now in issue, had been the subject of investigation, recommendation, and decision in favour of the society on the 26th Nov. 1918, and of a decision on appeal of P. as referee, whose award was dated the 14th June 1919, and of appeals to the

courts.

The questions upon which the opinion of the court was sought were (inter alia) (1) and (2) whether P.'s award estopped the appellant from disputing the validity of the 1918 rules, and whether they were adopted at a meeting validly constituted; (3) whether the 1918 rules were validated by registration or by amendments and confirmation in 1919 and 1920, also approved and registered by the registrar of friendly societies; (4) whether such rules were ultra vires under sect. 23 of the National Insurance Act 1911, or for not providing for the representation of the central branch in accordance with a rule which provided for the grouping of branches in districts with an 66 order district" for scattered branches.

(a) Reported by W. P. PAIN, Esq., Barrister-at-Law.

Held, that the approval of the 1918 rules by the Insurance Commissioners followed by registration cured every antecedent irregularity or informality in the procedure by which the rules were adopted. Rosenberg v. Northumberland Building Society (60 L. T. Rep. 558; 22 Q. B. Div. 373) and Butler v. Springmount Agricultural and Dairy Society (1906, 2 I. R. 193) followed.

In the circumstances questions (1) and (2), as to the appellant being prevented by the previous award from now questioning the validity of the 1918 rules and the constitution of the meeting became immaterial, but semble estoppel did not prevent the first point being raised.

Questions as to the illegality of the rules cannot be made the subject of arbitration under sect. 67 of the National Insurance Act 1911: (Heard v. Pickthorne, 108 L. T. Rep. 818; (1913) 3 K. B. 299; approved McEllistrim v. Ballymacelligott Cooperative Dairy Society, 120 L. T. Rep. 613, at p. 615; (1919) A. C. 548). The rules were not, in the opinion of the court, invalid as being ultra vires in not providing for the control of the society by its members or adequately providing for the representation or administration of the branch. The commissioners, having been satisfied that by its constitution the affairs of the society were subject to the absolute control of its members, the court accepted their conclusion.

The 1918 rules being valid, a meeting and levies made in accordance with those rules in 1919 were also valid.

SPECIAL CASE.

The appellant is James Quinn, an insured member of the Central Branch No. 223 (hereinafter referred to as the central branch) of the National Catholic Benefit and Thrift Society, a Friendly Society registered under the Friendly Societies Act 1896, and approved under the National Insurance Act 1911 (hereinafter referred to as the Society). The appellant is the Secretary of the Central Branch, which has its office in Liverpool.

The chief executive body of the Society is the Board of Management (hereinafter called the board). The members of the board are elected by the general council of the society. The conduct of the affairs of the society by the general secretary and his staff at the head office of the society, which is also in Liverpool, is under the direct control of the board.

The general council of the society consists of the general officers of the society (who are, however, not entitled to vote) the members of the board, ex-officio and representative delegates known as general councillors, who are elected annually as hereinafter mentioned.

The general council normally meets annually for the purposes (inter alia) of electing members of the board, confirming levies on the members for head office and other expenses, and altering or amending the rules of the society. Such meetings were held: In the year 1916, on the 6th, 7th and 8th of Aug. at Carlisle; in the year 1918, on the 20th and 21st May, at Manchester; in the year 1919, on the 9th and 10th June, at Blackpool; and in the year 1920, on the 24th and 25th May, at York.

All the members of the society are grouped in branches. Normally each branch has allotted to it a particular area usually co-terminous with a Catholic ecclesiastical parish, and a number of contiguous branch areas together constitute a district for the purposes of the society; and the branches in a particular district are, for certain administrative purposes, controlled by a district council, such district council being constituted by representative delegates elected by the members of the different branches comprised in the district, according to the number of the members of such branches respectively.

The same four arbitrators acted in each of these three arbitrations, two being chosen by the society, one of whom was Joseph W. Foley, and the other two by the other parties in accordance with rule 24 (6) of part I. of the old rules. The four arbitrators appointed in accordance with the same rule, John Francis Bramley to act as their chairman in each of the said three arbitrations. The arbitrators being equally divided, it fell to the chairman to give his decision in each arbitration, and such decision was given accordingly by John F. Bramley in an award in each arbitration dated the 26th Nov. 1918, in favour of the society.

The Liverpool branches and Luke Hogan appealed, notice of appeal being given to the Insurance Commissioners on behalf of the central branch as regards the first arbitration on the 5th Dec. 1918, and as regards the second arbitration on the 9th Dec. 1918. These appeals were referred for decision to Mr. Samuel Lowry Porter, Barrister-at-Law, the referee appointed by the Insurance Commissioners, and treated as one joint appeal.

The referee heard the joint appeal on the 27th, 28th and 29th March 1919, and at the hearing a number of the points raised by the joint appeal were waived. On the 14th June 1919, the referee made his award in writing dealing with the other points raised.

In his award the referee also dealt with the question whether new rules of the society not on the face of them ultra vires but passed at an invalidly constituted general council meeting became valid on being approved by the Insurance Commissioners under sect. 27 of the National Insurance Act 1911, and registered by the Registrar of Friendly Societies under sect. 13 of the Friendly Societies' Act 1896, and held that such rules were so validated and, therefore, that the 1918 rules were binding on the society as a whole. This particular question was not, in fact, included among the points raised on the joint appeal as originally formulated and referred to the referee.

The appellants in the joint appeal appealed to the Divisional Court and subsequently to the Court of Appeal to have the award set aside on the ground that the said referee was not entitled to deal with the particular question mentioned in the last preceding paragraph.

Such appeal was dismissed.

On the 27th Feb. 1920, James Quinn, the appellant, in the present matter formally in writing demanded arbitration (hereinafter called the fourth arbitration) in accordance with the rules of the society in a dispute between himself and the society in connection with the 1919 annual meeting of the general council.

The dispute was referred in accordance with rule 86 of the 1918 rules to the arbitration of three arbitrators one of whom was Charles H. Waring, and these three arbitrators gave their award in writing in favour of the society.

The appellant applied to the Ministry of Health for leave to appeal from the award. The application was granted. This appeal (hereinafter called the present appeal) has been referred to me for decision by the Minister of Health and was heard by me on the 22nd, 23rd and 24th Sept. 1920.

The present appeal raised issues similar in character to the issues raised in the joint appea referred to the said Samuel L. Porter as aforesaid, and I desire to ascertain the opinion of the court on the following questions:

(1) To what extent, if at all, the appellant is estopped or otherwise prevented by the said award of the said Samuel L. Poiter from disputing the validity of the 1918 rules.

(2) To what extent, if at all, the 1918 rules were invalid on the ground that the 1918 annual meeting of the general council was invalidly constituted.

(3) To what extent, if at all, the 1918 rules were in the circumstances validated by the registration thereof

and of the 1919 or 1920 amendments by the Registrar of Friendly Societies.

(4) To what extent, if at all, the 1918 rules were invalid on the ground that they were ultra vires if and because ::

(a) They did not provide for the government of the society in accordance with sect. 23 of the National Insurance Act 1911.

(b) They did not provide for the representation or administraton of the central branch in accordance with (a) the rights of its members; and (b) the constitutional rules of the society and in particular rule 40.

(5) Whether the 1919 annual meeting of the general council and the levies made thereat were invalid if and because the central branch and its members were excluded from representation thereat.

(6) To what extent, if at all, the acts and proceedings of the 1918 annual meeting of the general council were validated by the ratificatory resolution passed as aforesaid at the 1919 annual meeting of the general council.

The parties to the present appeal have agreed that for the purposes of such appeal and this special case the facts as found by Samuel L. Porter in his award are to be treated as admitted by both parties.

It was further admitted by the parties at the hearing before me that :

(a) The society did not at any time expressly inform any of the branches concerned in the first and second arbitrations that the society was applying to have the 1918 rules approved by the Insurance Commissioners and registered by the Registrar of Friendly Societies except as far as such information was published in the issue of Aug. 1918, of the Catholic Insurance Magazine, copies of which issue were received by the respective secretaries of the different branches concerned.

(b) John F. Bramley who acted as chairman in the first, second, and third arbitrations, and Joseph W. Foley who acted as one of the two arbitrators chosen by the society in such arbitration, had both previously been two of the signatories (signing for the purposes of sect. 13 of the Friendly Societies Act 1896) of the copy of the 1918 rules which was submitted by the society for approval by the Insurance Commissioners and registration by the Registrar of Friendly Societies.

(c) The appellant was personally fully cognisant of and took an active part in all the proceedings in the first and second arbitration and litigation consequent thereupon and was prepared to share in the benent of the same as a member and the secretary of the central branch so far as the central branch might be successful therein.

(d) The 1919 annual meeting of the general council was properly constituted and held in accordance with the 1918 rules, if such rules were in fact valid so far as material, and no general councillors purporting to have been elected by the Old Liverpool District Council did in fact attend at such meeting.

(e) The appellant objects to the validity of the levies imposed by the 1919 annual meeting of the general council on the sole ground that the meeting itself was invalidly constituted and held, and not otherwise.

(f) Charles H. Waring, one of the arbitrators in the fourth arbitration subsequently to the award in such arbitration was one of the signatories (signing for the purposes of sect. 13 of the Friendly Societies Act 1896) of the copy of the amendments of the 1918 rules passed at the 1920 annual meeting of the general council which was submitted by the society for approval by the Ministry of Health and registration by the Registrar of Friendly Societies.

The Registrar of Friendly Societies was informed in July 1918, that arbitration proceedings were pending in which the validity of the proceedings at which the 1918 rules were passed was contested.

(a) Luke Hogan received a verbal assurance from a responsible official in the office of the Registrar of Friendly Societies that the 1918 rules would not be registered by the Registrar of Friendly Societies while the third arbitration was pending, at any rate without an intimation being received by Luke Hogan from the office of the said registrar.

(b) The Insurance Commissioners were informed in July 1918, that arbitration proceedings were pending in which the validity of the 1918 rules was contested.

(c) The appellant at the time of the first, second, and third arbitrations assumed, though he did not definitely know, that the society was proceeding with an application to have the 1918 rules approved by the Insurance Commissioners and registered by the Registrar of Friendly Societies.

(d) It was well understood between the parties to the first, second, and third arbitrations that such arbitrations had been initiated with a view to obtaining a definite decision on the points at issue therein by way of appeal to the Insurance Commissioners under sect. 67 of the National Insurance Act 1911, from the awards in such arbitrations, unless the awards therein were satisfactory to the applicants in such arbitrations.

(e) The members of the central branch were not, in fact, represented at the annual meetings of the general council in 1919 and 1920, and no specific provision had at the dates of such meetings been made under the 1918 rules for their representation at meetings of the general council. (Signed) HUGH GAMON.

19th April 1921.

Percival Smith for the appellant.-The validity of the 1918 Rules depends upon the answer to the question as to the legality of the annual meeting of the general council of the society which passed them. Even if this question was a subject in issue in the fourth and earlier arbitrations the awards do not prevent the raising of similar questions on behalf of the appellant on the present occasion. The registration of the rules by the Registrar of Friendly Societies was made pending the arbitration proceedings, and with notice in a responsible quarter that objection to the rules was taken on behalf of the central branch. The registration took place pending the appeal without the appellants' knowledge. As to the first question the arbitrator had no jurisdiction to decide the question of the validity of the 1918 rules; there was no waiver of the appellant's rights in that respect, and the arbitrator's decision cannot be taken to have abridged the rights of the branch to have the question decided in that he was given no power to enforce his award. The Registrar of Friendly Societies in registering the 1918 rules and the amendments thereof made in 1919 and 1920, was performing a ministerial and not a judicial act and arrived at no conclusion as to the legal validity of the rules registered for which conclusion he had no materials before him. The 1918 rules absolutely excluded the central branch from participation in the society's government and administration, and in the circumstances under which registration was effected the society is not to be bound by it. The registry of the society might have been cancelled under sect. 11 of the Friendly Societies Act 1896. The certificate might have been withdrawn, and on the facts and correspondence the adoption of that course would not have been unreasonable. The decisions in the King's Bench Division and the Court of Appeal on the application that the award of the 14th June 1919 be set aside do not, it is submitted, affect the

present question. The constitution of the society does not provide for the absolute control of its affairs by its members:

1 & 2 Geo. 5, c. 55, s. 23 (2) (ii).

Even if validated as rules by being registered these rules were ultra vires this society. Under sect. 23 (2) (ii) it was the duty of the insurance commissioners to exercise a judicial discretion and they must be satisfied judicially. The schedule to the 1918 rules nowhere contained the name of the central branch; the central branch was excluded from representation in any district.

Courthope Wilson. K.C. and H. P. Glover for the respondent society.-Even if this was not a dispute between the society and a branch or member within sect. 67 of the National Insurance Act 1911, yet any invalidity in the 1918 rules was cured by the registration of those rules and the amendment of 1919 and 1920. The result of the registration and the award of the 14th June 1919 is to prevent the appellant raising the present questions: 59 & 60 Vict. c. 25, ss. 11, 13 (2);

Dewhurst v. Clarkson, 23 L. T. Rep. (O. S.)
109; 3 Ell. & Bl. 194;

Rosenberg v. Northumberland Building Society,
60 L. T. Rep. 558; 22 Q. B. Div. 373;
Butler v. Springmount_Agricultural and Dairy
Society (1906), 2 Ir. R. 193;

Heard v. Pickthorne, 108 L. T. Rep. 818; (1913)
2 K. B. 299;

McEllistrim v. Ballymacelligott Co-operative
and Dairy Society, 120 L. T. Rep. 613, per
Lord Birkenhead, L.C., at p. 615; (1919)
A. C. 548;

Crichton Scott v. Dalry Myrtle Lodge, 6 Sess.
Cas. 462.

The appellant was ready to take any advantage accruing from the earlier arbitrations and appeals had they been in his favour, and the branch, although he was not technically a party to those proceedings, is bound by their result, and in effect is estopped from disputing the validity of the decision of what were practically the same questions as those now raised:

Re Lart; Wilkinson v. Blades, 75 L. T. Rep. 75; (1896) 2 Ch. 788. Percival Smith replied.

[The Building Societies Act 1874 (37 & 38 Vict. c. 42), s. 36, and Osborne v. Amalgamated Society of Railway Servants (99 L. T. Rep. 945, per Lord Moulton, at pp. 950, 951; (1909)1 Ch. 163) were also referred to.]

EVE, J.-This is a special case stated for the opinion of the court under sect. 19 of the Arbitration Act 1889.

In dealing with it I am not concerned, nor, indeed, have I any right to enlarge on the merits of this long-standing dispute. My province is restricted to answering to the best of my ability the request of the learned arbitrator in par. 29 where he says: "I desire to ascertain the opinion of the court on the following questions."

I propose, as far as possible, to confine myself to expressing my opinion upon those questions. The first is: To what extent, if at all, the appellant is estopped or otherwise prevented by the award of Samuel Lowry Porter from disputing the validity of the 1918 rules." That question is directed to that part of the Porter award which decided that

the registration of the rules by the Registrar of Friendly Societies had cured any invalidity there might have been in the procedure under which they purported to have been adopted. The net result of the materials before me leads me to the conclusion that I ought not, in the circumstances, to hold the appellant estopped or otherwise prevented by the Porter award from raising the point as to the validity of those rules, and for this reason, that I am not at all satisfied that it was competent for the parties appearing before the arbitrator, to submit that matter for his determination, nor am I satisfied, if it was competent for them so to do, that they really did so. There being, therefore, in my opinion, grave doubt whether he had jurisdiction even with the consent of the parties to make any award on the matter, or if he had jurisdiction whether the parties ever in fact consented to his adjudicating on the point, I do not think I ought to hold the proceedings before him as operating in any way to estop the appellant from raising the point in the pending arbitration.

The

I pass from that to par. 2. I shall assume for the moment that Mr. Porter's finding that the annual meeting of 1918 was invalidated by the admission thereto of the representatives of the New Liverpool district is well founded, and that the meeting being an invalid meeting was incompetent to pass any resolution adopting the new rules. It is not necessary for me to determine whether those findings are correct. I am content to assume that they are. As at present advised I am by no means satisfied that they are. persons to whose presence exception is taken do not appear to have taken any part in the meeting; they were present, it is true, but according to the evidence I have seen they do not appear to have addressed the audience or to have taken any active part in the meeting or to have attempted to exercise any voting power. In these circumstances it is difficult to see how their mere presence in the room could alone have rendered the meeting invalid. But Mr. Porter so found, and I assume his finding to be a right one. Even so, the answers to this second question and question No. 1 are really immaterial by reason of the answer which I think is the only one that can be given to question No. 3. On the authorities I must hold that the approval of the 1918 rules by the commissioners, followed by their registration under the Act cured every irregularity in the procedure or at the meeting by or at which they were adopted. It is, in my opinion, impossible to read the decisions Dewhurst V. Clarkson (sup.), and Rosenberg v. Northumberland Building Society (sup.) without being convinced that the reasoning by which those decisions were arrived at is applicable to this

case.

The wording of the Friendly Societies Act is certainly stronger than any that can be found in the Building Societies Act, and although I agree, if I may respectfully say so, with some criticisms made by Lord Justice Moulton on the judgments in the Rosenberg case (sup.), it would be my duty, were I dealing with a case under that Act, to follow that decision; much more so in this case, where I have wording which indicates, as it seems to me, far more strongly that the certificate is to be conclusive and binding, am I so bound. Sect. 13, sub sect. 2, enacts that "The registrar shall, on being satisfied that any amendment of a rule is not contrary to the provisions of this Act, issue

to the society an acknowledgment of registry of the amendment, and that acknowledgment shall be conclusive evidence that the amendment is duly registered." I cannot think that only means that the acknowledgment is conclusive that the actual entry has been made in the book and the registration completed; it must mean that everything antecedently necessary to the registration has been duly carried out, and that when the certificate is once issued it is incompetent for anybody to raise objection on points of procedure and detail in reference to matters antecedent to the registration. That view is certainly strengthened in this case by the provisions of the section of the National Insurance Act of 1911, which provides that so soon as the rules shall have been approved by the Insurance Commissioners they shall be registered, but until so registered they shall have effect as if they had been duly registered. I think, therefore, it is impossible, in view of the decisions to which I have been referred, to come to any other conclusion than that registration effectually cures any antecedent irregularity in procedure. That opinion has been expressed by the Court of Appeal in Ireland in construing an exactly similar section of the Provident Societies Act in Butler v. Springmount Agricultural and Dairy Society (sup.), and although, as was pointed out by Mr. Smith, the Irish decision does not bind this court, where the Court of Appeal in Ireland, composed as it was of very eminent judges, has imposed a particular construction on identical words, it would require a very great deal of argument to convince me that I should be right in imposing a different construction on the same words in another statute merely because the court that imposed that construction was sitting in Ireland and not in this country. The result is, so far as the rules of 1918 are concerned, any invalidity which was due to informality or irregularity antecedent to their passing is cured by their registration. But then, it is said, the complaint by the appellant against the rules is not merely that they were invalidly passed, but they are in their nature illegal and ultra vires, and he says they are ultra vires because they do not comply with the statutory provisions of sect. 23 of the Act of 1911, and, in particular, they do not make adequate provision for the representation of the particular branch in accordance with the rights of the members under the regulations and rules of the Society. I am of opinion that no question as to the illegality of the rules can be properly made the subject of an arbitration under the statute. It is not a matter of domestic administration which, under sect. 67 of the Act, ought to go to arbitration. That was the view of the Court of Appeal in the case of Heard v. Pickthorne (sup.) where the suggestion was the rules were ultra vires, and also in the recent case of McEllistrim v. Ballymaceltigott Co-operative Agricultural and Dairy Society Limited (120 L. T. Rep. 613; (1919) A. C. 548), where the Lord Chancellor, in dealing with the matter at p. 561 of L. Rep. says: The question here is whether certain rules were illegal and ultra vires. Such a dispute is not a dispute between a member and the society within the meaning of the statute. The appellant in this case professes that he has not quarrelled with the society as lawfully constituted, but complains that the constitution of the society has been illegally altered. The dispute, therefore, rightly viewed, is a dispute between

66