§ 892. Effect of Change of Residence in Connection with By-Law Requiring Members to Notify their Residence to the Society. One of the by-laws of a benevolent society provided for giving written notice to any member in arrears six months for dues, calling his attention to the fact that he would be stricken from the roll, in case he did not pay his dues. Another by-law imposed a fine for an omission, by a member, to give notice to the association of a change of residence. At the time of joining, plaintiff's intestate gave notice of his then place of residence; he subsequently changed his residence, but did not give notice of the change. Because of failure to pay his dues, he was stricken from the rolls. No notice was given to him of an intention to strike him from the rolls, as provided by the by-laws. Afterwards the member died, and an action was brought by his administratrix to recover the sum provided by the defendant's by-laws to be paid on the death of a member. It was held that the plaintiff was entitled to recover; that the omission of the deceased to give notice of change of residence was no excuse for a failure to give him the prescribed notice.' The court said: "There is nothing to show that the object of the information as to residence was to enable the defendant to serve its notice at that place, or that the deceased agreed that they might leave it at his house. There are many other reasons why it would be well for such an association to know the residence of its members; but however that may be, the defendant, by another by-law, defined the penalty for neglect in giving notice of a change of residence. It declares that, for such omission, the member in default shall incur a fine of twenty-five cents. It would lead to a most unjust result, if there should be added a forfeiture of the whole benefit to which his representatives are, in case of his death, entitled. Such consequence is not declared, and cannot be

implied for any legal construction.” 2

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§ 893. Of the Corporate Tribunal and its Constitution. As already seen with reference to corporations and to proceedings for the amotion of officers, where the trial takes place before the corporation in its constituent character, or before a numerous tribunal, in the absence of a valid regulation otherwise

were prohibited on Sunday. Hence, judicial proceedings on Sunday are void, at common law. But all other business transactions are valid, except so far as prohibited by statute. Emott, J., in Merritt v. Earle, 81 Barb. (N. Y.) 38, 41.

1 Wachtel v. Noah Widows' &c. Soc., 84 N. Y. 28; s. c. 38 Am. Rep. 478.

2 Wachtel v. Noah Widows' &c. Soc., 84 N. Y. 28, 30; 8. c. 38 Am. Rep. 478.

3 Ante, § 725 et seq.

prescribing, all the members of the corporation, or the tribunal, must be notified to attend the meeting at which the trial is to be had. It is therefore a good objection to the validity of the suspension, that a single member was not summoned and did not attend. It is not necessary that all the members of the judicial body which hears the accusation should be legales homines, as in the case of a jury. It is not a good objection to a resolution of expulsion that one of them was related to a party to the controversy, nor that he had become familiar with the matter to be investigated, through conversations with the members or otherwise; since the rules of the common and statute law relating to judicial proceedings have but a limited application to voluntary societies. It has been held that, while the body in its constituent capacity can not delegate the power of expelling a member to the board of directors, unless the power is conferred by charter or statute,' yet such power may be well exercised by the directors where there is a statute reposing it in them. But this should, it seems,

1 Rex v. Town of Liverpool, 2 Burr. 723, 731; Com. v. Guardians of the Poor, 6 Serg. & R. (Pa.) 469, 475; Loubat v. Le Roy, 15 Abb. N. C. (N. Y.) 14; Smyth v. Darley, 2 H. L. Cas. 789. See also People v. Batchelor, 22 N. L. 128.

2 Loubat v. LeRoy, 15 Abb. N. C. (N. Y.) 14. In the same case, Van Vorst, J., at special term of the Supreme Court, rendered a very long opinion, in which he held that when the constitution of a voluntary association provides that expulsion or suspension must be by a two-thirds vote of its governing committee, the provision is satisfied by a two-third vote of a quorum as it existed at the time of the vote, although several of its members were not present. From this decision an appeal was taken to the general term. In rendering an opinion reversing the decision of the special term, Daniel, J., held, amongst other things, that as the governing committee was to consist of twentyfour members it would take sixteen

affirmative votes to make the required two-thirds, and this although there were four vacancies on the commit. tee. Davis, P. J., concurred in the reversal for other reasons, and did not express himself on this point. Brady, J., concurred in the result. 40 Hun (N. Y.), 546. And it has been said in a case where a member was tried and acquitted for want of a rulable two-thirds vote against him, that "a decent respect for the members who had voted for his acquittal, as well as a regard to impartial justice, required a general summons" to another meeting to reconsider the matter, even if a reconsideration could be lawfully had except on his motion or petition. Com. v. Guardians of the Poor, 6 Serg. & R. (Pa.) 469, 475.

3 Loubat v. Le Roy, supra.

4 State v. Chamber of Commerce, 20 Wis. 63, 73; Hassler v. Philadelphia &c. Assoc., 14 Phila. (Pa.) 233. Ante, § 808.

5 State v. Milwaukee Chamber of Commerce, 47 Wis. 670, 686.

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be confined to business corporations, in which the directors are merely a committee of members elected for the transaction of the corporate business. It is plain that in many corporations members may be expelled without a trial before the whole corporation, but upon a trial before some judicatory to which cognizance of offenses by members is committed. This will be seen especially in the case of religious corporations, the well settled doctrine in respect of such corporations being, that where the judicatory appointed in accordance with the laws and usages of the corporation have acted upon a case within their jurisdiction, the judicial courts will not interfere. The same rule applies in the case of social clubs, as seen from several instances in this chapter, and also in the case of merchant's exchanges. Thus, in a case in New York, which has been frequently cited, a member of an incorporated body of merchants, organized, among other things, "to inculcate just and equitable principles in trade,” was expelled, in pursuance of a by-law, by the board of managers, for obtaining goods of a person not a member of the corporation under false pretenses; and it was held that he was rightly expelled. It is not a good objection in a collateral attack, that two of the directors, by whom the member was tried, were not citizens of the United States, or that two of them were prejudiced and not impartial triers.* Where the society has no rules prescribing by what judicatory or by what vote an accused member may be tried and expelled, the rule is, that he may be tried upon notice by the society at large, and expelled by the vote of a majority of all the members of the society. Where the rules of the society require a two-thirds vote of the members present, in order to an expulsion, this means a two-thirds vote of the visible quorum, that is, two-thirds of all present, including those who do not vote. Those who do not vote may, therefore, by

1 Watson v. Jones, 13 Wall. (U. S.) 679; State v. Hebrew Congregation, 30 La. An. 205; s. c. 33 Am. Rep. 217.

2 Pitcher v. Chicago Board of Trade, 121 Ill. 412.

8 People v. New York Commercial Asso., 18 Abb. Pr. (N. Y) 271.

Pitcher v. Chicago Board of Trade,

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121 Ill. 412; s. c. 13 North East. Rep. 187; 11 West. Rep. 38; 2 Rail. & Corp. L.. J89.

5 Inness v. Wylie, 1 Car. & K. 257, per Lord Denman C. J.; White v. Brownell, 2 Daly (N. Y.), 329, 859, per Daly, J.

their silence, turn the scale in favor of the accused. Thus, where there were present at the meeting 117 members, and 77 voted for expulsion and 38 against expulsion, and 2 did not vote at all, it was held that the resolution of expulsion had not been adopted by the requisite two-thirds majority.1 It should be added that the return to a mandamus to restore the expelled member will be fatally defective, where it shows that he was tried by a select body less than the whole number of corporators, and does not show the source from which the select body derived their power or jurisdiction. From what has already been said, that a conviction upon a trial by a jury under an indictment is not necessary to warrant an expulsion for an infamous offense, it follows that the mere fact that the charge against the member is undergoing an investigation in a judicial tribunal, does not oust the corporate judicatory of their jurisdiction to try him upon the question of his expulsion; since, although he may be acquitted in the judicial court, he may be expelled by the corporate judicatory. From the same consideration, it also follows that the constitutional guaranty of the right of trial by jury does not apply to proceedings taken by a corporation for the removal of a member for offenses against the corporation.5

Ar

§ 894. Illustrations: Expulsion by a Two-Third Vote. ticles of partnership provided that it should be lawful for the holders of two-thirds or more of the partnership shares, for the time being, to expel any partner, by giving him notice thereof, under their hands, in the form thereby prescribed; and that, immediately after giving such notice, a notice of the dissolution as to the expelled partner should be signed by the partners and published, with power to any other of the expelling partners to sign the name of the expelled partner. It was provided that if a partner became bankrupt, insolvent or was expelled, his interest should cease as to profit and loss, as if he had died on the

1 Labouchere v. Earl of Wharncliffe, Association, 18 Abb. Pr. (N. Y.) 271. 13 Ch. Div. 346, 353.

2 Green v. African Methodist Episcopal Society, 1 Serg. & R. (Pa.) 254. 3 Ante, § 859.

Hurst v. New York Produce Exchange, 100 N. Y. 605, Mem.; s. c. in full 1 Cent. Rep. 206.

People v. New York Commercial

Manner of appointment of committee of investigation: appointment by second vice-president and subsequent appointments by the first vice-president, in the place of members declining to act, upheld as valid: People v. St. George's Society, 28 Mich. 261.

day of such bankruptcy, insolvency, or expulsion; and that the amount of his share should be ascertained and payment secured, by the same arrangement as would have been applicable in case of his decease, It was also provided that the shares of retired, deceased, bankrupt, insolvent or expelled partners should be disposed of in such way, either to or between some or all of the continuing partners, or by the admission of a new partner or new partners, as the holders of a majority of the shares should determine. The articles provided that, in the case of making certain arrangements, there should previously be a meeting of the partners in committee; but did not express that any such meeting should be necessary previous to the exercise of the power to expel. The article also provided for the adjustment of all the partnership accounts, within sixty days after the thirtieth of June in each year, when an inventory of all the stock, debts, etc., should be made, with proper allowances, so as to ascertain the partnership property, profit and loss, and the shares of the respective partners, which shares were to be carried to their respective accounts; and it was provided that the share of any partner who might wish to retire, if his retirement were consented to by the majority of the others, was to be taken by the continuing partners, at the amount at which the same stood at the time for making the yearly rest or statement next preceding; and that the surviving partners were, also, to take the shares of a deceased partner at the amount at which the same stood at such next preceding yearly rest or settlement. It was held that the power of expulsion by a partner might be exercised by two-thirds of the partners, without any previous meeting of the partners in committee upon the question, and without any cause being assigned for such expulsion; but that the power must be exercised with good faith, and not against the truth and honor of the contract; but that the power was not properly exercised at the exclusive instance of one partner, and in consequence of his representations to the other partners, made without the knowledge and behind the back of the partner who was to be expelled, and without giving to such partner the opportunity of stating his case and of removing any misunderstanding on the part of his copartners.1 In giving his judgment on this case, the Vice-Chancellor (Sir W. Page Wood, afterward Lord Hatherley) said: "I have said before that I hold with the defendants, that they were competent to give a notice to dissolve, without assigning any reason; that they were competent to exercise that power, without holding any meeting with their copartners; but then the power must be exercised bona fide. Good faith is unquestionably of the essence of all contracts. Sir Fitzroy Kelly has said that I could not introduce any new words

1 Blisset v. Daniel, 10 Hare, 493.