
    
      Palmetto Lodge No. 5, I. O. O. F. v. Wilson Hubbell. Same v. James T. Fleming.
    
    Where an action was brought against a suspended member, by the Palmetto Lodge No. 5, of the Independent Order of Odd Fellows, for arrears due by him, and on his admission to the Lodge he had signed the constitution and by-laws, and thereby agreed to support the same, and to pay all legal demands against him, so long as he should continue a member of the Lodge— these demands not' being unreasonable, and the distinction between suspension and expulsion, being frequently recognized in tlie by-laws of the society— the Court held, that, by suspension, the party suspended did not cease to be a member, and that while a member, by law, and by his express undertaking, he continued liable to pay the contributions which the by-laws required.
    
      Before Mr. Justice Withers, at Columbia, March Term, 1848.
    REPORT OP THE CIRCUIT JUDGE.
    These were actions of sum. pro. brought by the Plaintiffs, who sought to recover from each defendant an amount of arrearages arising from certain periodical contributions required of each member of the lodge, under provision of the Constitution aud By-Laws of the plaintiffs.
    The items of the account were of the following character : Weekly contributions, 12 1-2 cents; for Education fund, 50 cents per annum ; from October, 1847, $1 per annum fot; Widows’ and Orphans’fund. Both parties, defendants, had been suspended before the last item of contributions had been required to be paid.
    It was not contested that both defendants had been members of the Lodge, for each had signed the Constitution and By-Laws; nor were the items of the account disputed, if they were held liable to pay them in law. In the case of Hubbell, the book of the corporation, in which the charges were entered, was indeed objected to as competent evidence, verified by the Secretary as the keeper of it, who was also a member of the Lodge; but I presume that is not regarded as a point of the case. It was held to be admissible between the Lodge and its members.
    I consider it an important point in these cases, that both defendants had been suspended by the Lodge before the amount of arrearages now sued for reached twenty dollars. In Hubbell’s case, the amount at the time of his suspension, was (according to my calculation,) a little over $13 ; in that of Fleming, a little over $16,
    The defence was placed upon various grounds.
    1. It was denied, generally, that a corporation could sue one of its members at law upon contract, unless authorised, to do so by Charter, or unless so provided in by-laws.
    
      2. That in these cases, it was contended, the plaintiffs had provided their own remedy, and had applied it, to wit: suspension — and this should exclude them from thefforum of the Law Courts, since such remedy, actually applied, excluded the right to resort to another.
    3. That in these cases, the Plaintiffs were not properly within the jurisdiction, for the reason that their claim ceased against each defendant when he was suspended, and at that time the amount due was within the exclusive jurisdiction of a Magistrate.
    1. There is no doubt of the right of a Corporation, in general, to sue one of its members upon an express contract; and I regard these cases as presenting instances of express contracts, for they had signed the constitution and by-laws, which required the contributions now sued for, (subject to the qualifications hereinbefore mentioned, as to the time when the annual payment was required for the Widows’ and Orphans’ fund.) But there can hardly be any question of the right of plaintiffs to sue since the Act of 1792 — 1 Faust, 231, as follows: “ Whereas, it is proper that bodies politic and corporate should be enabled to recover from their members all arrears and other debts and demands which may be owing to them, in like mode, manner and form as one individual could recover the same from another with whom he had no connection,” enacted, “That all bodies corporate, by any suit, bill or plaint, in any Court in this State, may sue for, and recover, and receive from their respective members, all arrears, or other debts, dues and demands, which now are or may hereafter be owing to them, in like mode, manner and form as they might sue for., recover and receive the same from any indifferent person who might not be one of their body; any law, usage,” (fee.
    2, Was the suspension of defendants the application of an exclusive remedy ? When the charter provides a spe* eific mode of redress, this would be exclusive of any other, unless, indeed, the general rule be qualified by the Act just cited. Such was the idea of Mr. Justice Buller, in Kirk ■v. Nowhill, as reported on page 125, 1 Term Reports.— The same doctrine has been several times affirmed in Massachusetts, in regard to Turnpike and Manufacturing Companies, who sought to recover assessments from members. But in such cases, there were assessments on shares of stock, which were subjected to sale by a general provision of Statute Law, for default of the owner — and it is to be remarked, that in such class of cases, there was specific property, capable of yielding the money due, and the policy of the law was to give alien or mortgage, as it were, upon such property. Very different must be the case of a corporation, merely charitable, where there is no slock or shares, tangible and accessible for the purpose of securing a lawful assessment, where the assessment is merely on the person, and where there is no statutory provision • designating a special mode of enforcing payment. Besides, I do not construe the suspension as a mode of enforcing payment, but intended for a different end ; so that the question whether that sort of remedy be cumulative or exclusive, does not arise. I resolve, therefore, the second proposition of defendants against them.
    3. However, I think the plaintiffs must fail, on the ground that the sums which they have any right to claim or have legitimately established, do not enable them to reach the jurisdiction ; that is to. say, that, from the period of suspension, the defendants were not liable to contribution. I can find no case in point upon- this subject, though it might well be insisted that a creditor of the corporation would stand on a different footing as against these defendants, and might invoke the case, Hume v. the Winyaw and Waldo Canal Company, After suspension, the defendants were not entitled to a single benefit from the funds of the Society, so far as I can discover. I cite the clause of the Constitution and Bye-Laws of 1842, which- were signed by the defendant, page 23 :
    “Sec. 4. — A bona fide member is one who has been a member of the Lodge nine months — or who has been a member six months, and has attained the third degree, or who has attained the Scarlet degree.”
    “Sec. 5. — Such member, if disabled by casualty, and not by immoral conduct, is entitled to receive a weekly allowance, if he be not disqualified by Art. vii.”
    That article is as follows — See p. 28:
    
      “Any member who shall be in arrears more than one quarter, shall not be entitled to vote; and should he be over one year in arrears, he shall forfeit Ms membership ; nor shall he be admitted again until he is regularly proposed and ballot-ted for, as in the case of new members, and the amount due by him at the time of his expulsion be first paid.”
    In January, 1845, this last section was somewhat altered, to the effect, that in case of default eleven months, notice shall, if possible, be given to the defaulting member, and if he make further default for a mouth, he shall be suspended during the pleasure of the Lodge, and before re-admission, shall pay all dues.
    I conclude, that being cut off from all privileges and benefits, by suspension, the consideration of liability thenceforth ceasing, the liability also, for further contributions, also ceased. The decree, therefore, must be for the defendants — leave, however, being reserved to plaintiffs, to take a non-suit, with leave to set it aside, or to discontinue; to the end that they may not be ousted of the Magistrate’s jurisdiction.
    Some defendant, whose name I do not remember, was sued before a Magistrate, by the same plaintiffs, upon a like demand, and from the decision an appeal was taken. It was agreed by counsel that the last mentioned case should abide the issue of these two. Not having reviewed that case, I know not to what extent it may be concluded by what is herein determined.
    The plaintiffs appealed, and moved the Court of Appeals to set aside the non-suit, upon the following grounds:
    1. Because his Honor erred, it is respectfully submitted, in ruling that “ the sums which the plaintiff had a right to claim, did not enable them to reach the jurisdiction; that is to say, that from the period of suspension, the defendants were not liable to contribution.”
    2. Because his Honor erred in holding that the defendants were cut off from all privileges and benefits by suspension.
    3. Because his Honor erred in holding that if the defendants were thus cut off from all privileges and benefits, by suspension, the consideration of their liability thenceforth ceased, and their liability for further contributions also ceased.
    4. Because the decree was, in these respects, contrary to the law and rights of the case.
    
      Bryce & Talley, for the motion.
    Moore, contra.
    
   Frost, J.

delivered the opinion of the Court.

When the defendant, on his admission to the Lodge, signed the constitution and by-laws, by the terms of the 12th section of the 2d article, he did “thereby agree to support the same, and pay all legal demands against him, so long as he continues a prember of the Lodge.” “Legal demands” can only mean such as accrue under the constitution and by-laws. The by-law under which the defendant is charged with the sum demanded, provides that if a member’s fines and dues remain unpaid for twelve mouths, “he shall be suspended, during the pleasure of the society; and, on reinstatement, he shall pay the amount standing against him at the time of his suspension, together with the whole sum to which he would have been subject had he not been suspended.” The distinction between suspension and expulsion is frequently recog-nised in the by-laws. The former is a temporary privation of rights and benefits; the latter is disfranchisement, severing the connection between the expelled member and the Lodge. According to the by-laws, a suspended member may be reinstated, bn paying the amount charged against him. An expelled member can be readmitted only on the terms and conditions of a new member. By suspension one does not cease to be a member; and, while a member, by law and by his express undertaking, the defendant continues liable to pay the contributions which the by-laws may require. But it is contended that this liability is founded in contract, which requires a consideration for its support; and that the defendant, having been deprived of all privileges and benefits by suspension, his liability, for contribution thereafter, was determined. Conceding that the liability of the defendant depends on contract, requiring a consideration, the consideration of his undertaking to support the constitution and by-laws, and pay all “legal demands,” was, that he should be admitted a member of the Lodge and possess the rights and capacity of a corporator. Certain privileges and benefits were incident to membership. Ihe unconditional enjoyment of these, was not held out to him as the inducement to join the Lodge. He was to possess and enjoy them, only as a franchise, subject to such rules and regulations as the by laws might prescribe. When the by-law was passed, under which the defendant was suspended, he might have determined his liability to future contribution by “ withdrawing his membership,” in the manner prescribed in the eleventh section of the second article. This he declined to do.

If the by-law, under which the plaintiff s’ demand arises, be unreasonable, that would be a good defence to the action. For while it is a power incident to every corporation to make by-laws for the preservation of order, the enforcement of corporate duties, and the advancement of its objects, that power is subject to the legal restraint, that the by-laws be reasonable and conducive to the design of the corporation. Such by-laws may impose pecuniary penalties, or corporate disabilities. Disabilities are very reasonable and efficient means to enforce payment of contribution^ and fines. By means of them, an appeal is made to the honor and pride of the members, by which they are best stimulated to the discharge of corporate duties, and the interest of the corporation is promoted, by preventing the resentment and defection which a resort to law is apt to produce. The by-law, in question, adopts a just and suitable measure of coercion, when it suspends a member, who refuses or neglects to contribute to the common fund, from the right to participate in the relief the fund is designed to afford, or to assist in the administration of the charity. The defendant enjoyed all the privileges of a member, until he was in default, and so continued, after notice and request, for more than a year. « If he pays his dues, he may demand to be reinstated. It is not necessary to decide, in this case, whether on payment or tender of the amount charged against him, the Lodge may continue the suspension of the defendant, indefinitely, !i during pleasure.” When that case is presented, the- law is not deficient in a remedy to enforce his rights, as a corporator, whatever they may be. Rex v. Richardson, 1 Bur. 539 ; Commomvealth v. St. Patrick Benevolent Society, 2 Bin. 448; Commonwealth v. Cain, 5 Sergt. & Rawl, 512; Commonwealth v. Pennsylvania Benevolent Institution, 2 Sergt. & Rawl, 141. The motion is granted.

O’Neall, J. and Evans, J. concurred.

Motion granted.  