1832. CRISP v. BUNBURY. he found the premises shut up, and that Gill had ab. sconded. Among the rules of the society were the following: First, "The affairs of the bank shall be conducted by not less than six trustees, twenty managers, and a treasurer; none of whom shall derive any benefit from the deposits, or receive any remuneration for services. Every trustee will be considered as an honorary manager. General meetings shall be held on the first Friday in October, January, April, and July, to receive the reports, and to examine and audit all accounts of the establishment. The managers shall also have the power of filling up vacancies, and of adding to the numbers of trustees, and of their own body. Upon the requisition of three managers, a special meeting may be called, upon giving fourteen days' previous notice. At every general meeting, one trustee and four managers shall be competent to act." Seventeenth; "Any matter in dispute between this institution and any person acting under the same, and any depositor therein, or any executor, administrator, or next of kin of any deceased depositor, or any person claiming to be such executor, administrator, or next of kin, shall be referred to the arbitration of two persons; one to be named by the managers, and the other by the claimant: and in case the two persons so named shall not agree, they shall forthwith nominate an umpire, and the decision and award of such referees and umpire shall be final and binding upon both parties." And by 9 G. 4. c. 92. s. 45. it is enacted, "That in case any dispute shall arise between any such institution or any person or persons acting under them, or any individual depositor therein, the matter so in dispute shall be referred to the arbitration of two indifferent persons to be chosen and appointed in the manner therein pointed out: and, in case of their not agreeing, then to the bar 1832. rister at law to be appointed by the commissioners, as directed by the act; and whatever award shall be made by the said arbitrators, or the said barrister, shall be binding and conclusive on all parties, and shall be final BUNBURY. to all intents and purposes, without any appeal." The case was argued in Hilary term by Storks Serjt. for the Plaintiff, and Taddy Serjt, for the Defendants, who took several objections to the Plaintiff's recovery; in particular, that the Defendants, as honorary trustees, were not responsible for embezzlement by the clerk of the society; and that, at all events, the Plaintiff's remedy was not by action, but by arbitration. The decision of the Court turns on the latter ground alone; as to which, it was contended on the part of the Plaintiff, that the statute 9 G. 4. c. 92. s. 45. is directory only with respect to arbitration, not imperative; that parties cannot, by agreement, oust the courts of law of their jurisdiction; nor can a statute effect this, except by express words or necessary implication; Cates v. Knight (a); and that, at all events, the Defendants having refused to proceed to arbitration, could not now object that the Plaintiff had proceeded at law. On the part of the Defendants it was argued, that though parties cannot, by agreement, oust the jurisdiction of the courts of law, it may be ousted by statute; and that the statute 9 G. 4. c. 92. s. 45. is imperative in this respect, the object of the legislature being to protect the funds of poor contributors from more expensive litigation. Cur. adv. vult. TINDAL C. J. This is an action of assumpsit against the Defendants, as trustees of the Mildenhall bank for (a) 3 T.R. 442. CRISP บ. savings, savings, and is brought for money had and received by them to the use of the Plaintiff. This bank was established in the year 1818, under the rules and regulations set out in the case; and from that time, until the passing of the statute 9 G. 4. c. 92., was governed by the various provisions contained in the statute 57 G. 3. c. 130. But that statute, with certain other acts which had been passed for amending it, were repealed by the 9 G. 4. c. 92., with an exception, that nothing in that act contained should invalidate or annul any payments, agreements, or appointments made, or proceedings had, or any instruments executed under the authority of any of the repealed acts; and by the last section of the 9 G. 4., that statute is declared to extend "to all savings banks established, and hereafter to be established, in England and Ireland." It appears, therefore, to us, that the only law which governed and regulated the rights of the parties to this action at the time the action was brought, is to be derived from the only statute then in existence in relation to the subject-matter of the action, namely, the 9 G. 4. Amongst the objections that have been urged by the Defendants against the right to maintain this action, one is, that by the forty-fifth section of the last statute, the legislature has provided, "That in case any dispute shall arise between any such institution, or any person or persons acting under them, and any individual depositor therein, the matter so in dispute shall be referred to the arbitration of two indifferent persons, to be chosen and appointed in the manner therein pointed out: and, in case of their not agreeing, then to the barrister at law to be appointed by the commissioners, as directed by the act; and whatever award shall be made by the said arbitrators, or the said barrister, shall be binding and conclusive on all parties, and shall be final to all intents and purposes without any appeal:" and it is contended, 1832. CRISP V. contended, on the part of the Defendants, that this enactment is imperative upon the Plaintiff, taking away the jurisdiction of the courts of common law, and leaving the party who complains no other mode of determining BUNBURY. his claim than that which is pointed out and provided by the act. It is not denied, on the part of the Plaintiff, that the present case falls within the description of those contained in the forty-fifth section; indeed, it would be impossible to argue that the present is not a dispute between persons acting under the institution and an individual depositor: but it is contended by the Plaintiff, that the jurisdiction of the courts of common law is not ousted by any words to be found in this section; and that the utmost which the section contemplates is, to create a concurrent, and not an exclusive jurisdiction in the arbitrators or barrister. But we are of opinion, that both with reference to the words of the statute, and the object which it had in view, the Plaintiff is barred from maintaining the present action in a court of law, and must pursue the remedy provided by the statute. It is undoubtedly true, that the jurisdiction of the superior courts of Westminster is not to be ousted, except by express words, or by necessary implication: Cates v. Knight: yet, where the object and intent of the statute manifestly requires it, words that appear to be permissive only, shall be construed as obligatory, and shall have the effect of ousting the courts of their jurisdiction, as in the case last referred to, where a clause enacted that it "shall and may be lawful for a justice of peace to hear and determine offences against the act that subject the offender to penalties, not amounting to 50%.," with a power to the justices to mitigate the penalties; whilst the same act directed that all penalties which amount to 50l., or more, shall be sued for in his Majesty's courts at Westminster; it was held, that by necessary implication the courts above were ousted of 1832. CRISP บ. BUNBURY. their jurisdiction in the case of penalties not amounting to 50l. Now, in this case the legislature has enacted that disputes of the description of the present " shall be referred," words which, in their natural force, denote an obligation, not a permission only; and unless these words are construed to be compulsory on the Plaintiff, they mean nothing. If they are not compulsory on the Plaintiff, neither can they be so, upon any principle of fair construction, upon the Defendant. And if recourse to arbitration is not intended except both parties choose to adopt it, then indeed the act is made a dead letter; for it would be competent for both parties to refer the dispute to arbitration, if they both agreed upon it, without the intervention of the statute. In order, therefore, to give these words of the statute any force or operation, the word shall must be construed as obligatory, that is, that the matter in dispute shall of necessity be referred to arbitration, and not be determined in any of the courts of Westminster Hall. But looking at the object and intention of the legislature, we think it clear that the remedy by action is taken away, and that by arbitration substituted in its place. These institutions were intended to comprehend a very large number of depositors, chiefly from the lower walks of life; many of them contributing very small sums, and claiming very small profits by the addition of interest. On the other hand, the trustees and managers are uncertain in point of number. To allow, therefore, actions at law to be maintainable by each depositor against the trustees, upon the occasion of every dispute with the institution, either as to the amount of the balance due, or the interest claimed by him, would be, in effect, to cause the ruin both of the depositors and the institution, by casting the costs of an action in the superior courts at Westminster upon the losing party. No person would fill the gratuitous office of a trustee or a manager, if he was |