Charles Cooke and John Owens v Lord Courtown and Others

• Jurisdiction: Ireland
• Judgment Date: 11 May 1844
• Date: 27 April 1844
• Court: Rolls Court (Ireland)

Charles Cooke and John Owens

and

Lord Courtown and others.

Rolls.

CASES

IN THE

COURTS OF CHANCERY, ROLLS,

AND

Equity Exchequer.

A depositor in a Savings Bank cannot maintain a suit in a Court of Equity against the trustees; the 9 G. 4, c. 92, s. 45, having established arbitration as the only mode of proceeding in disputes between depositors and the institution.

A suit at law and not in equity would, but for the statute, be the proper remedy.

The depositors have not a common interest in the funds, but have each severally a legal debt due to them by the trustees; they cannot, therefore, sue as co-plaintiffs or on behalf of themselves and other depositors.

An allegation that “the trustees, or some of them, are in collusion with the other defendant, is a uncertain an imperfect averment.

This was a suit instituted by the plaintiffs (on behalf of themselves and all other unpaid depositors in the Enniscorthy Savings Bank, who should come in and contribute to the costs of the suit), against the trustees and personal representatives of a deceased trustee, and of the defaulting treasurer of the Bank.

The bill was filed on the 13th of December 1843, and stated that at a public meeting in Enniscorthy on the 22nd of December 1825, it was agreed that a Savings Bank should be formed in conformity with the provisions of the 5 G. 4, c. 62; and that accordingly such Bank was so formed in conformity with certain resolutions and rules entered into at the said meeting, one of which was that the persons so establishing the said Bank should conform to the rules provided by the said Act. That the defendants therein named (being all the defendants except the representatives of the Bishop of Ferns and of G. Preston) consented to act, and did act as trustees, and as such furnished their names to the Bank of Ireland, and drew out the stocks and monies of the said Savings Bank from the Bank of Ireland. That certain of the defendants therein named became the managing committee of the said Bank, and so appeared on the printed deposit-books of the said Bank; and that they, or some of them, prepared the rules and regulations of the said Bank (which were adopted at a general meeting of the Bank), and opened the same to the public and commenced receiving deposits; and that the plaintiffs and others deposited certain monies in the said Bank.

That George Maquay was appointed actuary, and in 1833 George Preston, since deceased, was appointed treasurer in the room of Clement Goff who, as well as Maquay, appeared to be at the time indebted to the institution in considerable sums which, although paid by Goff to George Preston, the trustees never obliged George Preston to replace in the Bank. That the money due by Maquay was never repaid, and that the trustees never took any proceedings to enforce it. That George Preston died on the 29th of March 1842, and that the defendant Alexander Preston was his heir-at-law, devisee and acting executor, and, as such, became possessed of considerable assets, real and personal. That shortly after the death of G. Preston the Bank was closed, the trustees alleging that there were no funds to pay the depositors, the same having been spent and made away with by G. Preston and G. Maquay. The plaintiffs charged that if the trustees had performed their duty, there would have been abundant funds which might be made available to satisfy all demands, but that on the contrary the said trustees, or some of them, were in collusion with Alexander Preston, and declined to take any steps to make the assets of George Preston available, and refused the plaintiffs inspection of the Bank books, and were otherwise guilty of gross and wilful neglect.

The bill prayed an account of the sum due by George Preston as treasurer, and of his personal and real estate, and of the other available funds of the Bank; and also for a receiver, as stated at length in the judgment of the Master of the Rolls.

To this bill six several demurrers were put in—four by different trustees of the Bank, but which were precisely similar—alleging in substance that the Court had no jurisdiction by reason of the forty-fifth section of the 9 G. 4, c. 92, which provided that all disputes between the depositors and institutions of this nature should be referred to arbitration. A similar demurrer was filed by the representatives of the late Bishop of Ferns, one of the trustees; and the sixth was put in by Alexander Preston who, in addition to the want of jurisdiction in the Court, also assigned as causes of demurrer that the plaintiffs could not join in this suit: that there was a misjoinder of parties defendants, and that the collusion with the trustees was not so charged as to enable the plaintiffs to maintain the suit as now constructed.

Mr. Glascott, with whom was Mr. Moore, Q. C., for the trustees, in support of the demurrer for want of jurisdiction.

Admitting that the case made by the plaintiffs' bill is such as would, under ordinary circumstances, be within the jurisdiction of a Court of Equity; we insist, by this demurrer, that the right of the Court to entertain the suit is ousted by the express provisions of the forty-fifth section of the 9 G. 4, c. 92.* This section not only expressly gives a specific

remedy, namely, by arbitration, in all cases of disputes and differences between the depositors and the institution, but excludes any other. Without this construction the section would be nugatory, as no enactment was necessary to enable the parties, if they thought proper, to submit their differences to arbitration. Where a clause would otherwise be insensible, the Court will give a meaning to it: Cates v. Knight (a). The object of the Legislature is to provide a cheap and expeditious mode of settling all disputes between the parties; and the exemption of the submission to arbitration from stamp-duty, shows that such object was in contemplation. The difficulty attending a reference to arbitration in all cases, although such may exist, can afford no argument if the words of the statute be unequivocal. “The great object of the rules and maxims of interpretation, is to discover the true intention of the law; and wherever that intention can be indubitably ascertained, Courts are bound to give it effect, whatever may be their opinion of its wisdom or policy:” Dwarris on Statutes, 690: and so in Pray v. Edie (b), Lord Mansfield remarks:— “Whatever doubts I may have in my own breast with respect to the policy and expedience of this law, yet as long as it continues in force, I am bound to see it executed according to its meaning.” There are no cases to be found in which a suit has been instituted in a Court of Equity against the trustees of Savings Banks established under this statute; but there are several authorities which establish that the jurisdiction of the Superior Courts of Law, in such cases, is ousted by the forty-fifth section. In Crisp v. Bunbury (c) an action was brought, for money had and received, by a depositor against the trustees of the Mildenhall Savings Bank under this very statute; and the circumstances of the case were very similar to those at present before the Court; and although the plaintiff had nominated a referee on his behalf, and called on the trustees to appoint one on theirs, which they did not do, having no funds in their hands, and denying altogether their liability; yet the Court of Common Pleas held that the jurisdiction of the Courts of Law was ousted by the forty-fifth section, and set aside a verdict that had been obtained by the plaintiff, with liberty to the defendant to enter a nonsuit against him. Various ineffectual efforts having been subsequently made by the depositors of that Bank, to induce the trustees to enter into an arbitration, an application was at length made to the Court of King's Bench for a mandamus to compel them to appoint an arbitrator: Rex v. The Trustees of Mildenhall Savings Bank (d). The application for the mandamus was granted, and the authority of the case of Crisp v. Bunbury fully adopted. In the case of Rex v. The Trustees of the Witham Savings Bank (e), a similar application was made to the same Court, and though the motion was refused, upon the ground that the party seeking for the mandamus had no authority to draw the money out of the Bank, still the Court recognised and admitted the authority of the case of Crisp v. Bunbury. The case of Rex v. The Cheadle Savings Bank (a), is also an express authority that the Court of Queen's Bench will grant a mandamus to appoint arbitrators under the forty-fifth section. The same rule of construction of statutes obtains both in Courts of Law and Equity; and therefore it cannot be denied that those decisions are applicable to a suit instituted in this Court. The discovery sought can be obtained without a suit in equity, by the production of the books, which the Court of Queen's Bench can compel by mandamus.

Mr. L. Nunn, with whom was Serjeant Warren, for the plaintiffs.—Whatever be the true construction and force of the forty-fifth section, the defendants have not brought themselves within its protection. The facts charged in the bill must now be taken to be true; and by the bill it appears that the defendants have, in several instances, failed and neglected to conform to the provisions of the statute, which are conditions precedent to their availing themselves of any of its benefits. By the third section it is enacted, that no such institution shall have the benefit of this Act, unless the rules and regulations for the management of the Bank shall be entered in a book or books to be kept by an officer of the Bank, and open at all seasonable times for the inspection of the depositors; whereas it appears that the plaintiffs were refused all access to those books. The case of Crisp v. Bunbury is no authority as to the right of this Court to entertain a suit constituted as the present. It only decides that in that case, arbitration, and not a suit at law...