into this contract. The court does not do so, but the court pronounces in every contract, and, if there can be any difference, more especially in every contract of partnership, a basis of good faith, upon which all the stipulations contained in the deed must rest. This power would never be allowed to be exercised, by this court, in a manner against what I may call the truth and honor of these articles, borrowing an expression which has been applied to another description of contract. It is quite clear that this power was never intended to be exercised by any twothirds of the partners merely and solely for their own exclusive benefit. If cause be shown, of course it removes all difficulty with reference to fraud, using that word according to the sense in which the court uses it; but if cause be not shown and proved, then it must be very clearly made out that the exercise of the power has been in good faith." Where the rules of a club require the vote in regard to the expulsion of a member to consist of two-thirds of those present, and there were present at the meeting 117 members, two of whom did not vote, and the vote stood 77 for expulsion and 38 against it, it was held that the resolution of expulsion had not been adopted by two-thirds of those present, 77 not being two-thirds of 117. In giving his judgment to this effect, Jessel, M. R., said: "When a resolution is put to a meeting, the persons present may take one of three courses. They may vote for or against it; or not wishing to express a positive opinion on the question, refrain from voting at all. This being so, those who do not vote may, by not doing so, turn the scale in favor of the accused member of the club. It was, therefore, the duty of the secretary, or scrutineer, to ascertain, first, how many persons were present when the question was put, and, secondly, how many of those persons had voted for the resolution; but no such course has been adopted in this instance. It appears to me, then, that this also is a fatal objection." 2

§ 895. Jurisdiction of Standing Committee of Brokers' Board. Where the constitution and by-laws of a voluntary society, called "The Open Board of Brokers," provided for a standing committee, who were to take cognizance of and exercise jurisdiction over all claims and inatters in difference between members, and whose decision was to be binding upon them,— it was held that this committee was the proper tribunal to investigate and decide whether a member was or was not in default upon a contract, within the meaning of a by-law which made such a default a ground for suspension. It was further said: "When a

1 Ibid. 522.

Labouchere v. Earl of Wharncliffe, 13 Ch. Div. 346, 354.

claim, therefore, is made by one member upon another, and he brings the matter in difference before this arbitration committee, and they, after having notified the other, and afforded him the opportunity of being heard, investigate the claim, and decide that the other party is in default, that is a 'due investigation,' within the meaning of the law. It never could have been the design of the by-law that the committee on membership are also to sit in deliberation upon the matter, and investigate it over again, before they are authorized to report to the president that the member is in default. It is due investigation on their part, when they inquire and ascertain that the arbitration committee, whose decision is binding and subject to review, have decided, in a matter legitimately before them, that a member is in default. A second investigation would be superfluous and was not contemplated by the by-law."

1

§ 896. Illustration.— A claim was made by a firm of brokers, who were members of a voluntary association called the "Open Board of Brokers," upon another member, charging him with default upon a contract which he had made with them. He denied the validity of their claim, and they cited him to appear before the arbitration committee of the board, to have the matter in dispute adjusted under the rules of the society. This he declined to do, protesting against the jurisdiction of the committee. They, thereupon, heard evidence, and found that he was in default upon the contract. The prosecuting member then made known to the committee on membership the decision of the committee on arbitration, and this latter committee, upon due investigation, reported to the president of the board that the piaintiff was in default upon his contract in question, upon which the president declared him suspended from his privileges as a member of the board. The plaintiff appealed from this act of the president to the executive committee, as he had a right to do under the by-laws, but before any decision upon his appeal, he brought an action to restrain the president and members of the board, by injunction, from interfering with him, "in the full and free exercise and enjoyment of all his rights, privileges and franchises," as a member of the body. Having thus appealed to the judicial courts, he refused to prosecute his appeal before the executive committee, and protested against the committee taking any action in the matter. On this

1 White v. Brownell, 4 Abb. Pr. (N. s.) (N. Y.) 162, 200; s. c. 2 Daly (N. Y.) 329.

state of facts, it was held that he was not entitled to an injunction to restrain the society from interfering with his rights as a member.1

§ 897. Of the Trial and the Evidence. The obligation to proceed upon inquiry, stated in a preceding section," implies that no formal suspension or expulsion can take place without the hearing of evidence in support of the accusation. But it is not necessary that the evidence should be of such a character as would be necessary to its admission in the judicial courts: it is sufficient if it be of that character on which men ordinarily act in their private affairs, so that nothing takes place which violates the principle of natural justice already stated. Unless the rules of the society otherwise provide, the witnesses need not be under oath. The evidence may, it seems, be taken before one member of the court by a stenographer in the form of a deposition, and read before the whole court, at the trial, provided the accused have a fair opportunity of presenting his defense.5 The facts on which the committee which constitutes the judicial body acts, may be collected by a sub-committee, and afterwards reported to the full committee, with whom the final decision rests. Nor is it necessary that the accused should have notice of the time of the presentation of this report to the full committee, provided that he is afforded a fair opportunity of being heard before the full committee in his defense. One case has condemned an expulsion which took place upon the testimony of a witness who would have been incompetent to testify according to the rules of evidence which obtain in the judicial courts; but its authority is doubtful, as the expulsion also took place in the absence of the accused and without notice to him, which was a more conclu

1 White v. Brownell, 4 Abb. Pr. (N. 8.) (N. Y.) 162; affirming s. c. 3 Id. 318.

2 Ante, § 881.

3 See in illustration of this, the case of Labouchere v. Earl of Wharncliffe, 13 Ch. Div. 346, 350, where the rules of the club required the committee to proceed after "inquiry," and the observations of Jessel, M. R., thereon.

People v. New York Commercial Association, 18 Abb. Pr. (N. Y.) 271; Ex parte Ramshay, 18 Ad. & El. (N. s.)

172. It is hence no objection that a witness was not properly sworn: Pitcher v. Chicago Board of Trade, 121 Ill. 412; 13 Northeast. Rep. 187; 11 West. Rep. 38; 2 R. & Corp. L. J. 89.

People v. Board of Police Commissioners, 20 Hun (N. Y.), 402.

6 Loubat v. Leroy, 15 Abb. N. C. (N. Y.) 1. S. P. Pitcher v. Chicago Board of Trade, supra.

• Ibid.

8 Washington &c. Soc. v. Bacher, 20 Pa. St. 425.

sive ground in support of the decision of the court.

And finally,

it should be said that in all proceedings for the expulsion of members of such an organization, the provisions of the constitution relating thereto must be strictly followed out, otherwise the expelled member will be entitled to relief in the judicial courts.1

§ 898. Necessity of a Sentence of Expulsion. - Except in those cases, chiefly in mutual benefit societies, which proceed on a principle analogous to mutual insurance, where the non-payment of dues after notice, ipso facto, works a forfeiture of membership, the trial of the charges against the member is nugatory, except as an acquittal, unless it results in a formal sentence of expulsion. It is not meant, by this statement, to convey the idea that any particular form of sentence is required by the law. The idea is that there must be an actual expulsion, which must take place in form of a corporate act, declaring the member to be expelled.3

-

§ 899. Right of Appeal. Where, by the laws governing the society, a right of appeal exists from the judicatory passing the sentence of suspension to a higher judicial body, or to the society at large, it will be a good ground of reinstatement that this right has been denied to the accused. And where a right of appeal was given by the constitution of the society, it was held that he was entitled to be reinstated, because this right had been denied him, although there was a by-law providing that the decision of the committee by which he had been suspended should be final. The reason was that where there is a by-law conflicting with the constitution of the society, the constitution and not the by-law, must prevail, and further, that the member ought not to lose his right of membership on a question of doubtful construction, especially as property rights were involved. It has been held, but upon grounds which are certainly not obvious, that the protesting member of a mercantile exchange is entitled to an appeal

1 Loubat v. Leroy, 15 Abb. N. C. (N. Y.) 1, 45 note.

2 Ante, § 881.

3 Com. v. Pennsylvania Beneficial Institution, 2 Serg. & R. (Pa.) 141;

Com. v. German Society, 15 Pa. St. 251; ante, § 817.

4 Powell v. Abbott, 9 Week. Notes Cas. 231 (Philadelphia Court of Common Pleas).

from its board of arbitrators to its board of appeals, on the mere question of jurisdiction, without submitting the whole merits of the controversy to the board of appeals, as he was required by the board to do, in order to have his appeal allowed.1

ARTICLE III. JUDICIAL PROCEEDINGS TO REINSTATE.

§ 904. Mandamus to Restore Member. Ever since the decision of the Court of King's Bench in Bagg's Case,' and possibly long before, the writ of mandamus has been the usual and undoubted remedy to restore an officer of a corporation who has been unlawfully amoved, or 3 a member of a corporation who has been unlawfully suspended, expelled or