put upon his guard by the Defendant, Middleton, himself. To obtain relief on this ground a case of fraud or bad faith must be made out: Dann v. Spurrier (7 Ves. 231), Pilling v. Armitage (12 Ves. 85), Master of Clare Hall v. Harding (6 Hare, 273).

Mr. E. F. Smith, in reply, relied on Parker v. Carter (4 Hare, 409), as shewing that

a married woman can contract by an acknowledged deed.

THE VICE-CHANCELLOR Sir W. PAGE WOOD. A married woman by a deed of conveyance duly acknowledged by her under the Statute for the Abolition of Fines [207] and Recoveries can pass all her interest in her real estate, either legal or equitable. That is the effect of the interpretation clause, which says that the word "estate" shall include every interest in land, either at law or in equity, and there are also provisions enabling her to release powers. It is a different question whether she can enter into a contract with her husband, or with any other person, which could be enforced by this Court against the wife during her life, or her heirs after her death. It has been argued that she must be in some sense capable of contracting, or else the question in Parker v. Carter (4 Hare, 409) could not have arisen. In that case an estate was limited to the use of the husband and wife, and the heirs and assigns of the wife, and there was subsequently a conveyance by the husband and wife by deed and fine, which, but for the stat. 27 Eliz. c. 4, was a perfect conveyance; and the question was whether there was any consideration for the deed; and it was held that the concurrence of the husband and wife was a sufficient consideration. The question of contract would arise in such a case in a modified sense. The Court would inquire whether there was any consideration passing to the person who made the conveyance, and in that sense it would consider the question of contract; that is to say, that the married woman in return for the consideration so paid to her disposed of all her estate and interest. That is different, however, from the question whether she could enter into any contract which could be enforced against her.

Mr. Smith. There are some authorities on that subject which, I submit, establish that a married woman has power to enter into a binding contract respecting her real

estate.

THE VICE-CHANCELLOR. If you have any such cases they may be handed up to me, and I will consider them hereafter.(1)

[208] I confess, from the opening of this case, my impression has been that relief could not be given, unless it might upon the principle of Wright v. Wright (1 Ves. sen. 408). There were no means of conveying this contingent interest at law; but it was argued that if there were any valuable consideration, this Court would enforce the deed in equity. Subject to any authority that I may be referred to on that point, I am of opinion that this Court would not enforce specific performance of a contract by a married woman, by deed acknowledged by her, that on a particular day for a certain consideration she would execute a proper conveyance of her lands. Unless the case is brought to that, the Plaintiff could not obtain the relief which was given in Wright v. Wright, and which he might otherwise be entitled to. If I had to consider whether there is a valuable consideration expressed in the deed, then, since the husband was under no obligation to build upon his wife's lands, I think his having done so would be sufficient to establish a consideration for the contract.

Then, with respect to the supposed fraud, the Defendant has been examined as a witness, and his statement amounts to this: the Plaintiff told him he was going to advance money to Beale, and the Defendant thereupon informed him that Beale owed the Defendant money, and said that he must be paid that sum, and that he should insist on the Plaintiff giving up to him the title-deeds which he had deposited with the Plaintiff to secure £300 due from the Defendant to the Plaintiff; and at the same time the Defendant intimated that Beale had got the property, or used some equivalent words. He afterwards met the Plain-[209]-tiff's solicitor, who told the Defendant that Beale's wife could give the Plaintiff the property, and that he did

(1) Mr. E. F. Smith subsequently handed up the cases of Owens v. Dickenson, Cr. & Ph. 48; Stead v. Nelson, 2 Beav. 245; and Dowell v. Dew, 1 Y. & C. C. 345; and the Vice-Chancellor in the course of the week intimated that these authorities did not induce him to alter his opinion, because in all of them the wife had an estate to her separate use.

not want the Defendant's assistance. Instead of any statement having been made to mislead the Plaintiff, he there set the Defendant at defiance, saying that he did not require his help, because the property could be conveyed by the wife and husband together. If the Plaintiff knew that the Defendant, Middleton, was the heir of his father, he would not have any reason to complain. After having been told that there were doubts as to Beale's power to convey the land he chooses to complete the trans action without the assistance of the other party. If he did not know his own rights, can he say that the Defendant, as heir, was concurring in the arrangement? In either case this is very different from the authorities which have been cited. In every one of those there has either been silence as to some fact which was known to one of the parties, and not to the other, at a time when the former knew that the other party was about to act upon the supposition that no such fact existed; or, as in another class of cases, where a person makes a direct misrepresentation concerning the state of the title. The fraud in that class of cases, which consists in the tacit suppression of a fact, may be a fraud in the eye of the law without being morally a fraud. The person may have knowledge of the fact without knowing its legal effect; the law supposes that he must be aware of its legal effect, and therefore he is bound. So, in a case of positive misrepresentation, a man may represent that he has no interest, because, from a mistake as to the law, he believes that he has none; still, if he makes that representation, he is assumed to know the law, and is therefore bound by his representation. The only case cited in which the decision was adverse to the party who had made a suggestion which might have led the other party to a true knowledge of the state of the case was [210] Hobbs v. Norton (1 Vern. 134), in which Sir George Norton said to the intended purchaser from his brother of an annuity that he believed his brother had a good title to it; he had been paying him the annuity for twenty years; that he had heard there was an old settlement, but he had been paying this annuity for twenty years. But he must be taken by that representation to have meant that the old settlement was not material, and this threw the other party off his guard; and the person who made that representation was not allowed subsequently to set up the old settlement against the person whom he had so misled. That was the strongest case cited; but that case falls far short of this.

I dismiss the bill, but I think it must be without costs, as a house has been built upon the property, and £300 have been paid to the Defendant in respect of this mortgage transaction.

Mr. James, Q.C. With respect to costs, there is an action at law pending, which we have suspended on account of this suit.

THE VICE-CHANCELLOR. If the Plaintiff gives you judgment in the action I dismiss the bill without costs; otherwise, with costs.

[S. C. 2 Jur. (N. S.) 13; 20 J. P. 53. See Callaghan v. Dolwin, 1869, L. R. 4 C. P. 295. Approved, Walker v. General Mutual Building Society, 1887, 36 Ch. D. 777 ; Davies v. Second Chatham, &c., Building Society, 1889, 61 L. T. 682.]

Benefit Building Society. Jurisdiction. Objects. Withdrawing Members. Arbitration. Award. New Rules.

In any proceedings at law or in equity respecting a benefit building society, the primary consideration for the Court is that the Legislature has provided a cheap and summary mode of settling any question concerning their affairs by arbitration, with the intention carefully to provide that these societies should not be subjected to expensive litigation. The object of these societies is to raise a fund by means of which the members may be enabled to purchase land or houses. The mode by which this is to be done is by investing the subscribed moneys upon very advantageous terms under powers given them by statute.

Where the rules of such a society authorised the directors to invest the funds on

mortgages for ten years at any rate of interest, or in building on or improving land mortgaged to them, and authorised members to withdraw their shares upon giving a certain notice, and provided that such members should not be liable to any future fines, but should be entitled to receive the net amount of their subscriptions paid with interest, and also a share of profits, but no time was specified in making such payments; and the directors had power to pay such claims in the order in which they arose, the amount payable to a withdrawing member having been referred to arbitration: Held, that it was competent to the arbitrator to consider when, consistently with the due prosecution of the other objects of the society, such payment should be made, and to fix a time for such payment accordingly.

Held, also, that a Court of Equity had no jurisdiction to alter the award, unless there was error upon the face of it, or it was shewn to have been corruptly obtained. Therefore, where a principal sum and interest only were awarded, the Court would not calculate whether the amounts were correct according to the rules, or whether the principal sum included profits or not. The award directed a sum to be paid for costs, which the arbitrator had no power to do, except by a rule made after the member had given notice to withdraw. Held, that this part of the award was bad, but, being separable, it did not vitiate the rest.

The "Lancashire and Yorkshire Benefit Building Society" was established in 1852, and its rules were certified and enrolled on the 19th of November in that year.(1)

(1) The following were the most material of these rules :

:

"DUTIES AND POWERS OF DIRECTORS.

"12. That the directors shall have the power to direct payment out of the funds of the society of all expenses incurred in the formation, management and carrying on of the society; to direct payment of all claims upon the funds of the society (allowed claims upon the funds by members being discharged in the order as to time in which. they arise); and in all business hereby intrusted to their management not less than five shall act. That it shall be lawful for, but not obligatory upon, the directors to direct payment of any yearly rents which may be in arrear, or any mortgage or other prior incumbrance to which securities may be subject, and to take any transfer or other conveyance thereof in their names, to lay out money for the improvement of securities of which the society shall be in actual possession, or to complete any buildings which may have been left unfinished to the prejudice of the security of the society; to cover vacant land with buildings; to determine on the terms on which shares may be taken up in the society, either by old or new members; to determine on the amount of money to be paid by any mortgagor in full for the claims of the society upon his property, on payment of which the share or shares in respect of which the security was made shall be wholly extinguished; to lend any money belonging to the society on such mortgage of freehold or leasehold property, and at such rate of interest as they shall think proper, notwithstanding that the borrower may not be a member; to allow interest after the rate of £5 per centum per annum to members paying their subscriptions twelve months in advance; to borrow or take up at interest from any banker or other party or parties any sum or sums of money for the use of the society upon such terms, or such period or periods, and at such rates of interest, and to repay the moneys so borrowed out of the funds of the society, either before or at the expiration of the period or periods for which the same are so borrowed, as they shall think fit, with interest and all expenses incident to the borrowing and paying off the same; to determine the profits to be allowed in addition to the subscriptions paid in on account of each unpurchased share to members withdrawing such shares, which, after such determination and the announcement thereof at the monthly meetings, it shall be lawful for the directors to pay. Also to alter the amount of the fine to be paid on the transfer of any share or shares, whether purchased or unpurchased, or the biddings on purchased shares. Provided, that no money of the society shall be lent except the security for repayment thereof shall be a mortgage (with powers of sale, and all such other powers, covenants and conditions,

[212] Upwards of two years before July 1853 the Plaintiff, Joseph Armitage, became an original holder of ten shares [213] of £60 each in the said society, and the Plaintiff, Eliza Armitage, became an original holder of five such shares, [214] and the Plaintiff, George Best, became an original holder of one such share. The Plaintiffs in every respect conformed to the rules of the society, and paid all sums of money payable by them respectively in respect of their said shares, which amounted in July 1853, in the case of Joseph Armitage, to £132, 10s., in the case of Eliza Armitage to £62, 10s., and in the case of George Best to £12, 10s.

In July 1853 the Plaintiffs, Eliza Armitage and George Best, and in October 1853 the Plaintiff, Joseph Armitage, [215] respectively signed notices to withdraw their shares from the society in conformity with the 24th rule. (Ante, p. 213.)

The reports shewed that large profits were made by the society previously to the month of July 1853.

The Plaintiffs now filed the bill in this suit against the trustees of the society, stating that, upon serving the aforesaid notices, the Plaintiffs respectively became entitled to receive out of the funds of the society the amounts which they had paid in respect of their shares, with interest at £5 per cent. from the end of their first year of membership, and a proportionate share of the profits of the society; and that they had applied several times to the secretary of the society to pay the same; but that the secretary and the other officers of the society neglected to comply with their request, and alleged as a reason that the amounts could not be paid, because the funds of the society were not available for that purpose: and the bill stated that the funds were not available, because the officers of the society took upon themselves to lend the funds of the society to various persons on loans, to be repaid at distant periods, and and in such manner as the solicitors of the society shall deem desirable or proper) of real or leasehold property, which, in the opinion of the directors, shall be a sufficient security for the money so lent; and in such mortgage or mortgages the day, or time, or manner, for repayment of the sum so lent, and the interest at the rate of £5 per cent. per annum, to become due by virtue thereof, shall be fixed so as not to exceed ten years from the commencement of the security; to direct the transfer by the trustees of any securities to any other person or persons, and the reconveyance of any mortgage hereditaments on repayment of money due thereon; to direct the purchase of the equity of redemption, and other the interest of the mortgagor and all other persons in property vested in the trustees, and to lay out money for the repair and improvement of such property; and where the property, estate or interest so purchased shall comprise land which is uncovered to lay out money in covering the same with dwelling-houses or other buildings, or direct the same to be sold on a rent to be reserved to the trustees, and to direct leases to be made thereof, and conveyances in fee subject to such rent; to direct the sale and disposition of the property so purchased, or the rents so reserved, and all other property from time to time vested in them, or any part thereof, by either public auction or private contract, and to direct the same to be bought in and resold without being answerable for any difference in price or other loss; and to direct leases to be granted of any buildings reserving rents; to order the commencement of any legal proceedings, or the defence thereof, or the same to be discontinued, settled or arranged; and generally to transact any business which may arise in connection with the society for which these rules do not provide."

"WITHDRAWING.

"24. Any member wishing to withdraw unpurchased shares may sign the form of notice contained in the schedule hereunto annexed, copies of which shall be kept by the secretary, who shall furnish the same on application; and after such notice has been delivered to the secretary, or to a district agent, before half-past eight o'clock at a monthly meeting, such member shall not be subject to any future fines in respect of shares withdrawn, but shall be entitled to receive from the society during the first year the net amount of subscriptions paid, deducting all fines previously incurred, and ten shillings and sixpence per share; if during the second year, the net amount of subscriptions paid, and interest, at not less than £5 per cent. per annum, from the

on various securities, in the names of the trustees; and that, in consequence of the neglect of the society to pay the said claims, the Plaintiffs, through their solicitors, on the 21st of June 1854, required the society, in conformity with the 29th rule (ante, p. 214), to appoint arbitrators to decide the matters in dispute between the Plaintiffs and the society, such matters having been only the amount of the principal and interest so payable to them respectively, and the amount of their respective shares of the profits.

The bill further stated that on the 29th of June 1854 the secretary of the society forwarded to the solicitors of [216] the Plaintiffs a copy of certain new rules which had been made since the withdrawing of the Plaintiffs from the society, one of which was an addition to the 24th rule as follows:-"Should the monthly receipts from the members at any time be insufficient to meet all the current engagements of the society for builders, withdrawals and the repayment of loans, &c., then, in every such case, one-third of the actual net subscriptions received each month from the members shall be appropriated by the directors to the payment of withdrawals according to priority of notice; and all notices of withdrawals shall be entered in a book to be kept for that purpose, and the residue of the income of the society shall be appropriated for the other ordinary business thereof: Provided always, that should the society be called upon, or the directors deem it desirable, to pay off all or any of the loans contracted by the society, then the repayment of such loans shall take precedence of all other payments except the necessary expenses of management." The other alteration was an addition to the 29th rule, as follows:-"That the complaining party shall give a written notice requiring arbitration, addressed to the secretary, stating the grounds of dispute, and thereupon deposit 20s. with the secretary, who shall fix the time for end of the first year thereof; and if at any time after the expiration of the second year, £5 per cent. per annum from the expiration of the first year, and also such a share of the profits as the board of directors shall have determined upon at the last annual audit of the accounts. That it shall be lawful for any member to withdraw purchased shares from the society with the consent of the directors, and on such terms as they may direct."

"ALTERATION OF RULES.

"25. Any alteration or repeal of any of the existing rules of the society shall be considered at a general meeting, convened by notice signed by the secretary, in pursuance of a requisition for that purpose by seven or more of the members of the society; which requisition and notice shall be publicly read by the president at two monthly meetings before such general meetings shall be held for the purpose of such alteration or repeal, unless a committee of such members shall have been nominated for that purpose at a general meeting of the members of the said society, convened in manner aforesaid, in which case such committee shall have the like power to make such alteration or repeal; provided that such alteration or repeal shall be made with the concurrence and approbation of three-fourths of the members of the society present at such monthly meeting, or by the like proportion of a committee, if any shall have been nominated for that purpose; and such notice shall be given of any such alteration or repeal as the directors shall think fit."

"ARBITRATION.

"29. In case of dispute between this society, or the trustees thereof, and a member or person claiming to be a member, or any person claiming on account of or through a member, or any officer of the society, such dispute shall be referred to arbitration, pursuant to the said recited Acts, and particularly the said Act of 10 Geo. 4, c. 56, s. 27. At the first meeting of the society after the certifying of these rules five arbitrators shall be named and selected, none of them being directly or indirectly beneficially interested in the funds of the society; and in each case of dispute the names of the arbitrators shall be written upon pieces of paper, and placed in a bag, and the three whose names are first drawn out by the complaining party, or by some one on his behalf, shall be the arbitrators to decide the dispute.'