
    MARGARET ELLER v. GEO. BERGLING, EMIL SCHAWACEFF, NICHOLAS HAPP, HENRY BERGLING, HENRY NOEL, AND JOSEPH BISHOP.
    Equity, —
    No. 5079.
    Where parties are exceedingly numerous, and it would be imprafieable to join them without very great delay, and would obstruct and defeat the ends of justice, a court of equity will dispense witii them, especian y when they are members of an unincorporated association, and the officers thereof have been made defendants.
    STATEMENT OE THE CASE.
    The complainant filed her bill for the purpose of compelling the defendants and the other members of a certain voluntary unincorporated association doing business in the city of Washington, and known as “The German Roman Catholic St. Joseph’s Liebes-Bundes,” to pay to her an amount of money equal to as many dollars as there were members thereof at the time of her husband’s death, to wit, on the 1st day of September, 1875.
    The bill alleged that the defendants were the oflicers of said association, and that the members thereof were exceedingly numerous, to wit, about two hundred and fifty, many of whose names and addresses were not known to complainant, and it would be impracticable to make them parties to this suit without almost interminable delays and other inconveniences which would obstruct and probably defeat the purposes of justice; that the husband of complainant was for about fifteen years before, and at the time of his death, a member of said society in good standing, and at his decease the complainant, as the widow and entire family of her said husband, became entitled, under the constitution and by-laws of said association, to receive from the defendants and each and every other member the sum of one dollar.
    The bill prayed for a discovery in respect of a number of members, and that the defendants be required to pay or cause to be paid to complainant the money aforesaid, and for general relief.
    The answer of the defendants substantially admitted all the allegations of the bill, with the exception that, instead of two hundred and fifty members as alleged, there were only two hundred and fourteen. The answer assigned as a defense that a resolution was passed by a majority of the members present at a meeting of said association, declaring that,the proximate cause of the death of complainant’s said husband were blows and kicks inflicted by the complainant; that there was no privity of contract between defendants and complainant; that though she might have an interest in the subject of the suit, she had no right to call upon the defendants respecting it; and that all persons materially interested in the suit have not been made parties.
    All the testimony in the cause was introduced on behalf of the complainant, and tended to show the amount of money the complainant was entitled to.
    No testimony was offered by the defendants. After argu ment, the court below, at the January special term, 1877, decreed that the defendants, or the proper officers of said association, pay complainant two hundred and fourteen dollars, with interest from September 1, 1875, and costs of suit, out of any moneys, credits, or property of said association, and that she have execution therefor; and from this decree the defendants appealed.
    
      E. A. Newman, for complainant, claimed:
    First. That the court had jurisdiction. (1 Story’s Eq. Jur., sec. 71; Russell v. Clark's Executors, 7 Cranch S. C. Rep., 69.)
    Second. That all the necessary and proper persons had been made parties. (1 Story’s Eq. PL, secs. 77, 92, 94, 107, and 116, p. 100, note 4; Langdale v. Langdale, 13 Ves. Jr., 167, note 2; Attorney-General v. Jackson, 11 Ves., 365, and note 1, p. 372; Cullen v. Luke of Queensbury et al., 1 Brown’s Ch. Rep., 101; West v. Randall, 2 Mason, 194, 195; Wiser v. Blachly, 1 Johns. Ch. R., 437; Elmendorf v. Taylor, 10 Wheat., 166 ; Executors of Brasher v. Cortlandt, 2 Johns. Ch. Rep., 247.)
    Third. The majority have no right to bind the minority. (Lloyd v. Loring, 6 Ves. Jr., 773; ex-parte Lacey, 6 Ves. Jr., 628.)
    
      L. G. Hine, for defendants, insisted:
    ■ First. That it was necessary that all the members of said association should have been made parties, and therefore the court had no power to pass a decree affecting the interest of the absent members.
    Second. Complainant had. no equitable lien. There was no fund to which it could have attached.
    Third. The words “family” and “widow” are not synonymous, nor even convertible, terms. (See Webster’s Die.; Bouv. Law Die.)
    Fourth. Defendants cannot be considered as trustees.
    Fifth. No privity of contract between complainant and defendants.
    
      Sixth'. The minority is bound by the will of the majority.
    Seventh. This court cannot grant relief without making a contract to which one of the parties refuses assent.
    Mr. Justice Wylie announced that he had been instructed by the court to say that the decree below was to be affirmed.
   Cartter, C. J.,

said, orally, that it appears from the facts in this case, that, for a long time previous to his death, the complainant’s husband was a member of said voluntary association, and that he was a member in good standing at the time of his death ; that, therefore, his widow became entitled to the money claimed, unless a legal reason-was shown to determine the contrary. The pleadings and proof fail to disclose any such reason. The proper and necessary persons have been made parties, and the equities of the bill demand an affirmance of the decree below.

Humphreys, J. —

I would not consent to a dismissal of the

bill. I am of opinion that there are equities in the bill, and therefore concur in the judgment of the court.

Decree below affirmed.

Mr. Justice Olin

delivered the following dissentiug opinion:

I think the decree made in this case at the special term should be reversed; and I will state briefly my reasons for that conclusion.

The defendants against whom the bill is filed are members of a voluntary unincorporated association known as the German jRoman Catholic St. Joseph’s Liebes-Bundes, (Union of Blessed St. Joseph,) and the bill alleges that the members are exceedingly numerous, to wit, about two hundred and fifty, many of whose names are not known to the plaintiff, and it would be impracticable to make them parties to the suit without interminable delays and other inconveniences. The prayer in the bill is, first, that the defendants may be compelled to truthfully discover and show the enthe number of members belonging to said society on the 1st of September, 1875, and that they may be required to pay or caused to be paid to the plaintiff a sum of money equal to as many dollars-as there were members of the association.

The first objection to the decree in this case is, that the suit is not brought against the association, but against certain persons who are styled president, secretary, treasurer, and standing committee.

So far as the disclosure asked for in the bill as to who composed the members of the association, no proceedings whatever were taken to make such members parties to the suit, and the cause proceeded to a final decree, in substance as follows: that the defendant, or the proper officers of said association, pay plaintiff two hundred and fourteen dollars, with interest from September, 1875, and the cost of suit, out of any moneys, credits, or property of said association, and that she have execution therefor.

The second objection to this decree arises from the fact that the sum of one dollar agreed to be paid to the family of a deceased member was not a joint contract on the part of the members of the association to become responsible for any defaulting member’s dues, who is unwilling or unable to pay the sum of one dollar on the decease of any member, or the-expense of music at his funeral. If the association possessed! any joint property, it could not, by anj- rule of law, be* touched in this case; for to do so would make the paying-members not only responsible for the sum agreed to be paid by them, but also the guarantors for the payment of the dues which other members of the association are unwilling or unable to pay. The engagement that each member of the association enters into, to pay his dues, is not a joint contract, but a several one, and no member of the association can be held liable for the default of any other member; and lastly, if this were not so, by article 15, section 4, of this association, it is provided that it is the duty of every member to pay the sum of one dollar death money, and ten cents for music, within the first two meetings after the decease of a member; by article 54, section 3, it is provided that a motion to appropriate a sum of money in excess of twenty-five dollars shall lay on the table one month, and shall only be carried by a two-thirds majority of the members present.

This vote was never obtained, and the construction sought to be given to article 6, sectiou 1, would not avail the plaintiff, for such construction would make it a condition precedent to enable the plaintiff to recover. Article 6, section 1, provides that it shall be the duty of the treasurer to receive all society as well as death moneys, and pay all orders, sick and death moneys, upon formal orders from the secretary, signed by the president and standing committees.

These articles of the association are written in German, and bad German, too. The words in the sixth article, inclosed in brackets, “to collect,” are evidently a mistranslation of the article in the original German, and leave it to read, “It shall be the duty of the treasurer to receive,” &c. The difference between the duty to receive and to collect is very manifest, especially under articles of association like these. No power could be conferred on the treasurer to collect the dues owing by any delinquent member; he could very readily be empowered to receive all moneys voluntarily paid over to him.  