
    EBBINGHOUSEN v. WORTH CLUB.
    
      N. Y. Court of Common Pleas; General Term,
    
      May, 1878.
    Social Clubs.—Liability of President.
    A social club, though without formal constitution and by-laws, and without purposes of profit or pecuniary advantage, may be held liable, in an action under the statute, as a joint stock association, or association of seven or more persons having a common interest.
    
    
      In an action against the president, as such, the evidence showing a purchase by him while acting as a committee for the club, the question should be submitted to the jury, whether the credit was given to the club or not.
    
      Appeal by plaintiffs from a judgment dismissing complaint.
    
      TMs action was brought by George Ebbinghousen, George A. Widmayer and John Baumann, composing the firm of Ebbinghousen & Co. In the title of the cause the designation of the defendants was “The Worth Club; William L. Simmons, president of the Worth Club.”-
    
      The complaint alleged that the Worth Club “is an association consisting of more than seven members or associates, not incorporated, but associated together in the city of New York, for social and political purposes; and the defendant, Simmons, is the duly appointed president thereof.” That the association was formed in 1871, and during that year the said Simmons was duly elected president, and had continued to act as such. That the said association, through its duly appointed committee, soon thereafter purchased of the plaintiffs about $3,000 worth of furniture, $1,321.05 of which remained nnpaid, and that under the statute said Simmons, as such president, was liable therefor. The demand of judgment was for judgment “against the said defendant, Simmons, president of said Worth Club, as aforesaid,” for, &c.
    The answer of said Simmons denied membership or presidency of the club, and for a separate defense alleged that the said furniture was sold to one F. B. Spinola individually, and upon his individual credit, and was all paid for by him by his own promissory notes, which had been accepted by the plaintiffs.
    The case was brought to trial before Hon. George M. Var Hoesest, and a jury. The testimony on behalf of the plaintiff showed that the said club of more than fifty members at first; that William L. Simmons was elected president upon the organization of the club, and a secretary and treasurer were also chosen ; that soon thereafter Francis B. Spinola was appointed a committee to purchase furniture ; that the latter, after consultation with Mr. Simmons and other members of the club, purchased the furniture in question for the club, and it was afterwards used by it; that, as the club was only to pay part cash, and the plaintiffs did not wish to take the notes of the club, but would take individual notes, the said Spinola gave his notes for a part of the purchase-money, and paid the balance with money furnished him by the treasurer of the club; that, in addition to the notes, he gave a chattel mortgage on the furniture ; that these notes were received by the plaintiffs with the understanding that the club was to pay them ; that the entries in the order book of plaintiffs were “ F. B. Spinola, for Worth Club,” or its equivalent, the form not always being exactly the same ; that some of the money due on these notes was paid by others than by said Spinola; that the club, owing to dissensions, had dwindled away.
    There was some evidence tending to show that the defendant Simmons was not president at the commencement of the action.
    When the plaintiff rested,—
    
      H. M. Whitehead, for defendant, moved to dismiss the complaint.
    
      
      Amos G. Hull, for plaintiff, opposed.
    Van Hoesen, J.
    In the case of Park & Tilford c. Judge Spaulding (10 Hun, 128), the facts that were proved were substantially the same as the facts proved here—that the club was not incorporated, had no constitution or by-laws, but that its object was to provide a club house for the members to meet for social intercourse, and a committee was appointed to purchase a stock of cigars and wines. On the state of facts proved there—which are the same as those proved here—Judge Davis said, that upon the facts appearing in the case, the Worth Club, so called, was not a joint stock company or an association within the meaning of the act referred to. Now, I do not see that the facts which you have proved take the case out of that decision.
    
      Mr. Hull claimed that he was entitled to go to the jury on the question as to whom the credit was given.
    Van Hoesen, J.
    No. If the question really is as to whom credit was given, I should be willing to leave it to the jury; but upon this same state of facts that Judge Davis passed upon, I think I should decide the same way. He decided that the club was not within the statute- relating to joint stock associations. Now, if that is so, it is very evident that the defendant cannot be sued here. Then, although on the pleadings you might possibly be entitled to a verdict, and judgment against the club itself, yet, as it appears in this suit that Mr. Simmons’ term as president had expired, and another president took his place, you have no right to sue Mr. Simmons now. At the time this action was brought Mr. Simmons’ term had expired and another gentleman had been elected in his place. I shall have to dismiss this complaint.
    From judgment entered in accordance with this ruling the plaintiff appealed to- the general term.
    
      
      Amos G. Hull, for appellant.
    I. By the act of 1849, “any joint stock company or association, consisting of seven or more shareholders or associates, may sue and be sued, in the name of the president or treasurer” (Laws 1849, chap. 258, § 1). This act was extended “to any company or association, composed of not less than seven persons who are owners of or have an interest in any property, right of action or demand, jointly or in common, or who may be liable to any action on account of such ownership or interest” (Laws 1851, chap. 455, § 1). This act thus became a part of the original act of 1849, and any subsequent legislation which is general in its application relates to and affects this act of 1851 as much so as that of 1849. In 1853 an act was passed amending section 4 of chapter 258 of the Laws of 1849, making it necessary for a person to exhaust his remedy against the association before any suit thereon can be brought against any of the individuals composing the association. This amendment related to and affected the act of 1851, as much so as it did the act of 1849 (Laws of 1853, chap. 153, § 1). This action was brought within the provisions of these three acts, and properly so, and was sustained by the testimony given on the trial.
    The defendant, the Worth club, was a voluntary association, formed for social and political purposes, composed of seven or more members who were owners of and had an interest in this furniture and other club property, and a.s such liable to an action on account of such ownership or interest. They had also a president. As required by the act of 1853, plaintiffs brought their action against the association by their president, intending to exhaust their remedy against the association before enforcing it against the individual members thereof. The defendant is such an association as is contemplated by the statutes,, and the action was properly brought, and should have been sustained (Waller v. Thomas, 42 How. Pr. 346; Witherhead v. Allen, 4 Abb. Ct. App. Dec. 31; Tibbetts v. Blood, 21 Barb. 650; Allen v. Clark, 65 Id. 563, 571; Robbins v. Wells, 26 How. Pr. 15; De Witt v. Chandler, 11 Abb. Pr. 470, 471; Bridenbecker v. Hoard, 32 How. Pr. 296 ; Kingsland v. Braisted, 2 Lansing, 17; and see 4 Duer, 362 ; 1 Robt. 666, 675, 684).
    II. The defendant William L. Simmons was properly joined as the president, (a) The defendant’s manner of pleading precluded any question before the court as to the proper person being sued as the president, and to the judge’s ruling on that subject plaintiff excepted. It was the duty of the defendant to designate who the president was, if the proper person was not named, and failing in this, it is estopped from raising any such issue on the trial, and the judge at trial term could not act upon any such issue, (b) He was the individual who was the president of the association at the time the debt was contracted, and it is. such officer for the time being that the statute refers to, who must be joined in an action by or against the association. Judge Spaulding was dead. Defendant’s counsel speak of him as the late Judge Spaulding. Suppose all the officers were dead, or had resigned at the time the suit was commenced, would such death or resignation deprive the plaintiffs of their cause of action '?■ Such a doctrine would be absurd. It would open the door to the grossest frauds. Suppose such a club should organize and elect a president and treasurer, and purchase a large amount of property on time, and just before the maturing of the debt the president and the treasurer should resign, and the club elect no one to fill the vacancies. Would it not be absurd to say to a creditor, you have no remedy, you have lost your demand, there is no president or treasurer “for the time being” on whom you can serve your papers. Such a doctrine would make the machinery of the law a mockery. All such technical construction of the law should be brushed aside. I submit that the true construction of the statute would give the creditor a right to sue the man who was the last president, or if he was dead, or half a dozen should be dead, then he might go back and sue the last living president, and above all he may sue the president who .was president for the “ time being ” while the debt was being contracted, and particularly as in this case when no other living president can be found, and when he nowhere denies in his answer that he was president when the suit was commenced. He simply denies, five months after the suit was commenced, that he is the president.
    III. The question as to whom the credit was given should have been submitted to the jury, and the refusal of the judge to do so was duly excepted to (Maryland Coal Company v. Edwards, 4 Hun, 434; McCoffil v. Radcliffe, 3 Robt. 447; Beebe v. Robert, 12 Wend. 416; Huntington v. Brinkerhoff, 10 Wend. 278; Backmar v. Jenks, 55 Barb. 473).
    
      H. M. Whitehead, for respondent, contended, that Park v. Simmons (10 Finn, 128) was conclusive, and established the right of a creditor to sue any individual member without first suing and exhausting his remedies against the association.
    
      Mr. Hull, in reply, contended that the case of Park v. Simmons was somewhat unlike this, but he was willing to concede, for the sake of the argument, that the facts were substantially alike, and contended that the rule laid down in that case was not good law, and was entirely repugnant to the doctrine laid down in Whitehead v. Allen, 4 Abb. Ct. App. Dec. 31; Kingsland v. Braisted, 2 Lans. 17; and Waller v. Thomas, 42 How. Pr. 346.
    
      
      Mr. Whitehead contended that they were identically alike, and contended that if the general term of the common pleas did not affirm this judgment, then we would be in a position of having the general term of the supreme court deciding a question in a given manner, and the general term of the common pleas deciding the same question entirely differently.
    
      
       Note on Voluntary Associations.
      The language of many authorities (particularly those where the peculiar rules applicable to voluntary associations do not seem to have been brought to the attention of the court), proceeds upon the idea that every organization must be either a corporation or a. partnership. Many of the cases in the books have been decided on this principle : Is this society a corporation ? No. Then it must be "a partnership. But this is not the only alternative. There may be a joint or common tenancy in property—there may be a mutual or reciprocal agency in transactions for a specified purpose,—and there may be a well-defined organization of the owners of such property, or the actors in such transactions, or both,—an organization even having articles (like a partnership) or having a constitution and by-laws (like the charter and by-laws of a corporation), yet the organization may be, in the eye of the law, neither a partnership nor a corporation.
      There are two principal classes of cases in which these questions have arisen; one where a question has arisen between the members, —an internal controversy ; the other, where the question has arisen between a creditor on the one hand, and the body or one or more members on the other,—an external controversy. The courts have always distinguished between the principles applicable to these two classes of controversies, and have, in the absence of a better guide, leaned, in the one class of cases, toward the rules afforded by the law of corporations, and, often in the other class of cases, toward those afforded by the law of partnership or of agency.
      The general result of the authorities is thus stated in Abb. Dig. Corp. tit. Associations, note.
      
      “The true principle is, and upon this view the apparent discordance in the cases may be nearly reconciled, that the law allows associates to imitate the organization and methods of corporations so far as their rights between themselves are involved, and will enforce their articles of agreement (nothing illegal or unconscientious appearing) as between the parties to them. But the public and creditors have a right to invoke the application of the law of partnership to the dealings of any*trading association, unless such association has the shield of incorporation. Thus, if the controversy is between members of the association, and relates to such subjects as mode of acquiring membership, tenure of the property, division of the profits, transfer of shares, voting, expulsion, dissolution, or the like, the courts may deal with the association by analogy to the law of corporations, so far as the compact between the members contemplates. But if the question is between the association or its members and third parties, and relates to such points as in what name the association may sue, whether members are individually liable to the creditors for debts, &c., a mere compact of association cannot vary the rights of strangers to it, but the associates must submit to the general rules of law applicable to the questions raised.”
      The following cases illustrate this distinction :
      I. Internal controversies.
      
      A member of a friendly society is not a partner with his associates, in such a sense as to prevent him from being sued in assumpsit for funds of the society which have been entrusted to his keeping. Sharp v. Warren, 6 Price, 131.
      
        A mutual benefit society formed by several persons, being partners or shareholders, who subscribe money and carry on business substantially for the benefit of the individual members among themselves, and not for the benefit of the society as such, is not a partnership or company established “for any purpose of profit,” within the meaning of section 3 of statute 7 & 8 Vict., ch. 110, so as to require registration. Bear v. Bromley, 11 Eng. Law & Eg. 414 ; S. C., 16 Jur. 450.
      Under articles of a voluntary association, providing that, if any member should be reduced in circumstances by fire, the society should grant him such relief from its funds as should appear just and reasonable, and extending the same privilege to the widows of deceased members ; no member has any vested right in the funds of the society. But' changes in the objects or mode of distribution cannpt be made by a mere majority in violation of the requirements of the constitution as to the time and necessary vote. Torrey v. Baker, 1 Allen, 120.
      
        Where a voluntary association is organized in conformity with a constitution and by laws, they are to be regarded as governed by a special agreement adopted by the copartners, and binding upon them as among themselves. It does not, however, affect their obligations to creditors ; and, as among themselves, the rules of law applicable to partnerships must prevail except so far as they are modified by the special agreement. And although the special agreement cannot secure the advantages of incorporation as between members and creditors, it may do so among themselves in so far as their rights and liabilities are modified by the special agreement. Thus if it is apparent on a just construction of the articles that it was designed to consist of many members who might, from time to time, cease to be interested by death or voluntary withdrawal, and that the same business should be continued in the same manner by those who should remain, and by such as might be added under the terms of the articles, it must be considered that each member agreed to remain a partner notwithstanding the changes in its membership in other respects, until he hirpself should die or withdraw. Tyrrell v. Washburn, 6 Allen, 466.
      If the provisions of a voluntary association are such as clearly, imply that the body shall consist only of those who remain and become members, without those who, from time to time, cease to appear upon its roll, the court will give effect accordingly, instead of treating the body as an ordinary partnership, on a bill for dissolution and accounting. Smith v. Virgin, 33 Me. 148.
      Where an association is organized not in pursuance of any statute, and the terms of membership are not fixed by principles of the common law, the agreement which the members make among themselves on the subject must establish and determine the rights of the parties on the subject. The constitution of the association and its laws agreed upon by the members, which contain all the stipulations of the parties, form the law which should govern. The members have established a law themselves. Leech v. Harris, 3 Brewst. (Penn.) 571.
      A minority have the right to enjoin the majority from distributing the funds among the members, in a manner different from that provided by the constitution, without a vote, according to the constitution, to make the necessary alteration. So held, in the case of a benefit society, although for fifty years there had never been a call for relief upon the society pursuant to its articles, and the fund was the accumulation of voluntary assessments, all made more than forty years before the suit. Torrey v. Baker, 1 Allen, 120.
      Where a sale and distribution of the property in a certain period is positively provided for by private articles of association, any of the shareholders have a right to insist upon the sale and distribution according to the articles, though it may not be for the interests of the concern, or may be against the will of the majority. Mann v. Butler, 2 Barb. Ch. 362.
      Relation of members of an unincorporated joint stock association embarked in an enterprise undertaken for the common profit, and agreed to be sustained by money advanced by each, examined, and held to be such as to justify a court of equity, in order to settle their disputes respecting the distribution of a common fund, to treat them as partners. Butterfield v. Beardsley, 38 Mich. 412.
      In this case the object of the association had been wholly ended by the sale and complete relinquishment of the ultimate capital and property of the company.
      When the articles of association do not regulate the remedies of members as between themselves, the general law of partnership applies. Bullard v. Kinney, 10 Cal. 60. Citing Colly. § 1115.
      The treasurer of a voluntary association for charitable purposes will be holden to account for the money in his hand, and to pay it over to those entitled to receive it, according to the interests of the association. Penfield v. Skinner, 11 Vt. 296.
      A claim by the administrator of a member of a benefit society for the amount of a policy of assurance on the life of such a member, is not within the rules of an association, enrolled under the friendly societies act, providing for the reference of matters of dispute between the institution and members thereof, to the decision of arbitrators. Kelsall v. Tyler, 34 Eng. L. & Eg. 588.
      Voluntary associations for mutual relief in sickness or distress, by funds raised by initiation, fines, dues, &c. (as distinguished from societies the objects of which are charities), may be dissolved and a distribution of the funds ordered as in case of a partnership, in a proper case. This has been done in England where it appeared that the society existed upon principles which, with reference to the amount or the number of subscribers and the nature of the subscriptions made the'whole a bubble (Beaumont v. Meredith, 3 Ves. & B. 180). So it may be done for a wrongful exclusion of a member from its meetings ; but equity will not necessarily decree a dissolution became the majority of the association have mistaken their powers or duties, and acted under such mistake, if they are willing to correct the error. Gorham v. Russell, 14 Cal. 531.
      The court may decree a dissolution of a mining company, and it is proper to do so, when it has been found impracticable to keep the association together, or to prosecute successfully the enterprise under such an organization. Von Schmidt v. Huntington, 1 Cal. 55, 73.
      The court refuse to decree a dissolution even where the scheme is manifestly impracticable as a matter of computation,—as for instance, where a friendly society covenanted to give annuities at a rate which its funds could not purchase, and its articles failed to provide for means of increasing its fund,—until the society have had opportunity to modify the scheme; and if they do so the bill should be dismissed. Pearce v. Piper, 17 Ves. 1, 18, 30, and cases cited.
      It seems that excluding a member from privileges of membership, or one elected a trustee from the exercise of his office, may be ground for decreeing a dissolution. See Gorham v. Russell, 14 Cal. 531.
      If the association, on being advised of its duties, retraces its steps and rescinds its illegal action, the court should refuse to decree a dissolution. Gorham v. Russell, 14 Cal. 688.
      
        A voluntary association for charitable purposes voted to transfer their funds to another society, appointed a committee to make the transfer, and ceased to meet for five years. Held, that the association was dissolved, and that subsequent proceedings were of no effect. Penfield v. Skinner, 11 Vt. 396.
      The continuance of an unincorporated society to maintain, so far as their means will allow, the use of their property for the religious purposes intended is sufficient to preserve their tenure as such. So held, where their house was allowed to fall down from decay for want of means, and the ground was only used as a burial ground. Story, J., Beatty v. Kurtz, 2 Pet. 566, 581.
      If the articles fix a definite term for the continuance of the association, the members cannot dissolve before that time, except by unanimous consent. Von Schmidt v. Huntington, 1 Cal. 55, 73.
      The dissolution of a voluntary society, such as a chapter or lodge of Free Masons, may be effected by an entire failure to act as such for a sufficient length of time; in this case twenty-three years after the body had sold their property and appropriated the funds, and abandoned all attempts to keep up organization. Strickland v. Prichard, 37 Vt. 324.
      Where a question arose between the assignee of the brokers’ board, of the seat of one of its insolvent members, and the creditors of the insolvent, Judge Sawyee says, “ The San Francisco Stock and Exchange Board is a voluntary association. The members had a right to associate themselves upon such terms as they saw fit to prescribe, so long as there was nothing immoral, or contrary to public policy, or in contravention of the law of the land, in the terms and conditions adopted. No man was under any obligation to become a member unless he saw fit to do so, and when he did, and subscribed the constitution and by-laws, thereby accepting and assenting to the conditions prescribed, he acquired just such rights, with such limitations, and no others, as the articles of the association provided for. Hyde v. Woods, 3 Sawyer, 655, 659. The decision was affirmed in 94 U. S. 523. And see 17 Alb. L. J. 172; White v. Brownell, 4 Abb. Pr. N. S. 162.
      Associations (such as brokers’ boards) have some elements in common with corporations, joint stock companies and partnerships; such as association and being governed by regulations adopted by themselves for that purpose. The same rules in law and equity, so far as regards the control of them, and the actual adjudication of their reserved and inherent powers, to regulate the conduct of and to expel their members, apply to them as to corporations and to joint stock companies. Leech v. Harris, 2 Brewster (Pa.) 571, 576.
      
      In Thomas v. Ellmaker, 1 Pars. Penn. 98; S. C., less fully, 1 Penn. Law Journal (Clark) 190, it was held that a hose company whose object as defined by their articles was to aid the fellow citizens of the members in extinguishing fires, was not, in a controversy arising among its membership, as distinguished from a controversy with creditors, to be deemed a partnership, but a private unincorporated association for general purposes of public utility; and that its property could not be diverted from the objects for which it was intended, and directed to be applied by the successive contributors while those remained who were ready and willing to execute the trust with which it had been clothed.
      On a bill by seceding members of a benefit society, to enjoin the officers adhering to the old standard organization, Lord Eldon, after adverting to' the power of the court to dissolve the body when the scheme was pecuniarily impracticable, said: “ Another view of the case of great importance is that if it can be kept out of a court of equity it should ; and therefore the court will not be astute to assist those who will not avail themselves of provisions in their deed, which might perhaps have kept it away. I say'perhaps, for all those regulations probably could not obviate the sudden evils which a mischievous man might effect.” Ellison v. Bignold, 2 Jac. & W. 511.
      Consult further: Ritterband v. Baggett, p. 67 of this vol.; Lowry v. Stotzer, 7 Phil. 397 ; and Matter of Fry, 4 Phil. 129; Brown v. Gilman, 4 Wheat. 255, 361; Olery v. Brown, 51 How. Pr. 92; Oakes v. Hill, 14 Pick. 442; Berry v. Cross, 3 Sandf. Ch. 1; Townsend v. Goeway, 19 Wend. 424; Cross v. Jackson, 5 Hill, 478; Wallworth v. Holt, 4 Myl. & C. 619; Waters v. Taylor, 2 Ves. & B. 299, 304; Richardson v. Hastings, 7 Beav. 323; S. C., Id. 301; 11 Beav. 17; 16 Law J. N. S. Ch. 322; Griswold v. Waddington, 16 Johns. 438, 491; Foley v. Tovey, 54 Pa. St. 190; Evans v. Philadelphia Club, 50 Pa. St. 107; Fargo v. Saunders, 4 Allen, 378; Harrison v. Hoyle, 24 Ohio St. 254, 273, 284 ; Earl v. Wood, 8 Cush. 430, 462; Douglas v. Merceles, 23 N. J. Eq. 831.
      Where a member of a social community was wrongfully expelled, -and induced to submit to the form of a voluntary withdrawal,—Held, that he was entitled to compensation for his undivided interest in the property of the community. Nachtrieb y. Harmony Settlement, 3 Wall. Jr. 66.
      
        But where, in a similar case, there was imperfect evidence of expulsion, and the community conceded the plaintiff’s right to return to his position and enjoyment of his interest on discharging the duties incumbent on him, the court refused to grant relief and dismissed the bill with costs. Lemix v. The Harmony Society, Id. 87, note.
      II. External controversies.
      
      In McMahon v. Kauhr (47 N. Y. 67), an action on a contract between the association and a member, the court say “ the parties to this action are members with other persons of a voluntary association not incorporated. The object of the association is innocent pleasure, and not trade, business, adventure or profit. It is not strictly a copartnership, for it does not, in its objects, fall within the definition of one.” (Citing 2 Kent, 23; Vollyer, 263.) “But the rights of the associates in the property, and the modes of enforcing them, are not materially different from those of partners in the partnership property.” (Citing Beaumont v. Meredith, 3 Ves. & B. 180.)
      A rented a room to an association of individuals at a monthly rent. After the contract B became a member of the association, and, as such, used and occupied the room. Held, that B was not liable for the rent before or after he became a member, upon a count upon the special contract, or upon an indebitatus or quantum meruit for work and labor done. But if at all only for use and occupation. Barry v. Nuckolls, 2 Humph. 324.
      Persons admitted to be members, under articles of associations of an unincorporated banking company, formed for the circulation of “ change tickets, ” are not liable for tickets issued before they became members. Lake v. Munford, 4 Smedes & M. 312.
      In the absence of any statute providing otherwise, the personal representatives of deceased members should be joined as parties. McKinley v. Irvine, 13 Ala. 681, 706.
      An association for purposes of mutual benevolence among its members only, such as a lodge of Odd Bellows, is not an association for charitable uses. If not incorporated, its members are regarded in law as partners, in their relations to third persons, and the property of the association must be appropriated to pay the debts of creditors who are not members, before it can be applied towards payment of the claims of its members. So held, in a mechanic’s lien case. Babb v. Reed, 5 Rawle, 151.
      
        An association of workmen (a lodge of the Knights of St. Crispin), formed for a legal purpose, can maintain an action for the recovery of money belonging to them, although in attempting to carry out such purpose they have been guilty of illegal acts. Specific wrongful acts cannot be shown to defeat the plaintiff’s claim, unless it be also shown that such acts come within the scope and purpose of the organization. Each act of wrong, outside the declared and real purpose of the lodge, stands by itself, to be answered for only by those who join in its perpetration. Snow v. Wheeler, 113 Mass. 179,
      Consult further, Burgan v. Lyell, 2 Mich. 102; Dennis v. Kennedy, 19 Barb. 517, 529; Moor v. Brink, 6 Thomp. & C. (N. Y.) 22; 3 Hun, 402; Taft v. Ward, 106 Mass. 518.
      III. Doctrine of agency as a basis of voluntary association.
      
      At common law, as now administered in England, it is well settled that societies and clubs, formed for a distinct purpose other than shar- „ ing profits or direct pecuniary advantage, are not partnerships, but in the legal effect of their dealings with others, constitute agencies in which the liability of the members respectively for contracts made by the association or its committees, depend on the principles of the law of agency,—in other words, on the question whether the person by whose act the obligation was contracted was the authorized agent, in so doing, of the person who is sought to be charged upon the liability arising thereon. The leading case on this subject is Flemyng v. Hector, 2 Mees. & W. 172; 2 Gale, 180. In that case defendants were sued for wines supplied, before its dissolution, to the club of which they were members. The rules of the club provided for an entrance fee and annual subscription; defaulters on subscription to cease to be members. They also provided that there should be a committee who should ‘1 manage the affairs of the club,” and that members should discharge their club bills daily, the steward being authorized on their default to refuse to continue to, supply them. At the trial Lord Abihgbr was of opinion that the club was a partnership; but in banc he agreed with the other judges that it was not; and it was held that the members of the club, merely as such, were not liable for debts incurred by the committee for work done, or goods supplied, if the committee had no authority to pledge the personal credit of the members. The main ground upon which the decision rested was that the plaintiff could not recover unless he showed that the contract upon which he sued was made by a person authorized to contract on behalf of the defendant. The question, as Baron Parks observed, was whether there was sufficient evidence to go to the jury to satisfy them that the person who actually ordered the goods was the authorized agent of the defendant in making the contract.
      This case was shortly afterward followed by Todd v. Emly (7 M. & W. 437), where the evidence was that a club was formed, and a fund subscribed which was to be administered by a committee. It was held that the committee must be supposed to have agreed to do that which the subscribers to the club had power themselves to do, that was to administer the fund of the club so far as it went, and not to deal on credit, except for such articles as it might be immediately necessary for them to have dealt for on credit.
      The plaintiffs relied on Horsley v. Bell (Ámb. 778), where commissioners for improving a stream to make it navigable, with power to borrow money, employed plaintiff’s services, and every one of the commissioners was present at some of the meetings, but no one was present at all; and the fund proving insufficient, all the commissioners were held personally liable on the whole employment.
      But the court held (in Todd v. Emly), that the cases were distinguishable, inasmuch as in the case of the club no common purpose was shown of dealing on credit for articles such as were the subject of the action ; hence that there being no other evidence to connect the transaction with the defendants than that defendants were members of the general body of the committee, the question for the jury was, not whether the defendants by their course of dealing had held themselves out as personally responsible to the plaintiff, but whether they had individually authorized the making of the contract in the ordering of the wine. Todd v. Emly, 8 Mees. & W. 505. See further, 13 L. J. Exch. 336.
      An association for watching legislation affecting the interests of the trade of members, entitled “The Midland Counties Guardian Society for the Protection of Trade ” (each subscriber being entitled to the benefit of information obtained), held, not a partnership. Nor would a club be. A member may therefore sue the members of a committee. Caldicott v. Griffiths, 8 Exch. 898.
      For the case of a shipping club formed for mutual insurance, see Bromley v. Williams, 32 Beav. 177.
      In the application of these principles it has been held that a general rule vesting the conduct of all the concerns of the club in a committee, does not authorize the committee to raise money by debentures, or otherwise to pledge the credit of members. In re St. James’ Club, 2 De G. MacN. & G. 383 ; S. C., 16 Jur. 1075.
      But one who assents to and ratifies the act of the committee in obtaining a loan, may be held liable. Earl Mount Cashel v. Barber, 14 C. B. 53.
      Members of a club, formed for the purpose of buying goods at wholesale, out of paid-up subscriptions, to secure for the members the benefit of the economy in price, are not liable for goods ordered on credit by an officer not authorized to contract on credit. Wood d. Finch, 2 F. & F. 447. Compare Cockerell v. Allcompte, 2 C. B. N. S. 440 ; S. C., 3 Jur. N. S. 844.
      Lindley accordingly lays down the English rule as follows : “ Societies and clubs, the object of which is not to share profits, are not partnerships, nor are their members as such liable for each others’ acts.....It is a mere abuse of words, to call such associations partnerships.” 1 Lindley on Partn. 57, ed. of 1873.
      And it will be seen from the cases above referred to, that associations not formed directly for pecuniary profit are within the rule, although the object may be economy, or other indirect pecuniary advantage.
      IV. Statutory recognition as a basis of toluntm'y associations.
      
      The constitution of this State contains the following provisions :
      “ Corporations may be formed under general laws. . . . Const. art. 8, § 1.
      “The term corporations as used in this article shall be construed to include all associations and joint stock companies having any of the powers or privileges of corporations, not possessed by individuals or partnerships.” Id. § 3.
      One main object of the legislation thus contemplated was to confer succession upon such bodies, so that instead of being, as theretofore, fluctuating and uncertain, and often incapable of legal action and difficult of legal subjection, by reason of uncertainty in respect to their membership, and the changes consequent upon death, resignation, &c., they might be recognized and dealt with, and pursue their rights in the courts, in the name of their chief executive officers, without regard to fluctuations of membership or questions of survivor-ship and the like.
      It was under these provisions of the constitution that the joint stock company law and voluntary association law, which are quoted in counsels’ points in the text were passed. The following cases will give a clue to the principal adjudications as to the nature of these associations, so far as they depend upon the statute.
      A joint stock association, organized under L. 1849, c. 258, and L. 1854, c. 245, is a corporation within the tax laws, and, as such, taxable on capital. Sandford v. Supervisors of N. Y., 15 How. Pr. 172.
      With the statutory provisions made in regard to these associations, it can scarcely be proper now to consider them as mere partnerships possessing all the rights and subject to the liabilities of partners. On the contrary, so many corporatei powers are conferred by the various statutes relating thereto, that it might rather be said, that excepting in the liability for the indebtedness of the association they possessed corporate powers. In the case of Waterbury v. The Merchants’ Union Express Co. (50 Barb. 160), this subject was fully examined in the special term, and the various corporate powers possessed by them are enumerated, and it was held that in controversies between a shareholder and the association, courts must follow the analogies afforded by the laws applicable to corporations rather than those applicable to partners. Bray v. Farwell, 3 Lans. 495.
      See also, Tibetts v. Blood, 21 Barb. 650; Waterbury v. Merchants’ Union Express Co., 3 Abb. Pr. N. S. 163; S. C., 50 Barb. 157; Westcott v. Fargo, 61 N. Y. 542; affirming 6 Lans. 319; S. C., 63 Barb. 349; Robbins v. Wells, 18 Abb. Pr. 191; De Roe v. Smith, 4 Supreme Ct. (T. & C.) 690; De Witt v. Chandler, 11 Abb. Pr. 459; Austin v. Searing, 16 N. Y 116; White v. Brownell, 4 Abb. Pr. N. S. 162.
      The powers conferred by these statutes are not recognized by the courts, where the association does not appear in the manner prescribed by the statute, but assumes to appear in corporate or associate name. See Owens v. Missionary Society, 14 N. Y. 380; Downing v. Marshall, 26 Id. 366 ; Sherwood v. American Bible Society, 4 Abb. Ct. of App. Dec. 227; White v. Howard, 46 N. Y. 144. And see Betts v. Betts, in this vol.
    
   C. P. Daly, Ch. J.,

with the concurrence of the associate judges, held that even if the facts in the case of Park v. Simmons were precisely like those presented in this case, that the general term of the common pleas would not concur with the doctrine laid down in that case; and thereupon ordered a reversal of the judgment and a new trial, costs to abide the event.  