Heyman v. Beringer. affected, either by the taking of the notes by Levinger, or by anything the defendant did afterwards with respect to their payment. It was a matter between the mortgagor and Levinger; and the remedy of the former is against the latter, for any injury he may have sustained. If the defendant would pursue such an irregular method of meeting his obligations, he must abide the consequences of his action. Upon the trial, I was inclined to think that the payment of the note first due should be allowed on the mortgage. But consideration leads me to a different conclusion. The transaction between the mortgagor and the attorney was in its entirety, as far as the plaintiff is concerned, without authority. Levinger did not represent her legally in taking the notes, or in receiving the money secured by the first note. Besides, before that note was actually paid, the defalcations of Levinger had come to be publicly known. The plaintiff had heard of them in Philadelphia, and had withdrawn the mortgage from Levinger's possession, and ended his agency in the matter. * The plaintiff testifies, that she read in the newspaan account of Levinger's implication in the frauds on the Savings Bank on December 6. On the 9th, she demanded the mortgage from him; he said it was in his safe, rendering that as an excuse for not then delivering it, and on December 15, she actually received it from him by mail. She had never authorized Levinger to take notes, and had had no information that he had done so, until after she had placed the mortgage in the hands of her present attorneys for collection. * "If money be due upon a written security, it is the duty of the debtor, if he pay to an agent, to see that the person to whom he pays it, is in possession of the security." Dunlap's Paley Agency, 274. Lafond v. Deems. The defendant testifies that the first note was paid to Levinger about December 17. This was after Levinger's agency was wholly ended, which was as early as December 9. The payment by the defendant of the second note to Levinger, after he had been notified by the present attorneys that they held the mortgage, leads one to the conclusion that the defendant had made up his mind at all hazards to keep his engagements with Levinger, by paying to him the second note, after actual knowledge that he no longer held the mortgage, and in the hope perhaps, that in this way he could induce him to go forward and pay the mortgage. The evidence and reasonable inference therefrom, leads to that conclusion. The result is, that no payments have been made on the mortgage by the defendant, and there should be judgment of foreclosure and sale. LAFOND v. DEEMS. N. Y. Supreme Court, First Department; Special Term, June, 1876. DISSOLUTION OF VOLUNTARY ASSOCIATIONS. A voluntary unincorporated association for purposes of mutual benefit, is to be deemed in law, a partnership, within the rule that equity may decree a dissolution, and distribution of assets, in an action between the existing members in case of violent and lasting dissensions.* In such a case, a receiver will be appointed. * In addition to cases cited in the report as to voluntary societies, see L. 1851, c. 455, extending L. 1849, c. 258; Boody v. Drew, 2 Supm. Ct. (T. & C.) 69; Frothingham v. Barney, 6 Hun, 366; De Witt v. Chandler, 11 Abb. Pr. 459; Waterbury v. Mer. Union Express Co., 3 Abb. Pr. N. S. 163; Westcott v. Fargo, 61 N. Y. 542. Compare also, Liverpool Ins. Co. v. Massachusetts, 10 Wall. 566; Trial by the court. Lafond v. Deems. John Lafond, and two others, trustees of the Washington Tent No. 1, Independent Order of Rechabites, brought this action against Henry W. Deems, and thirty-six others, their fellow members. The society or association was a mutual benefit association or copartnership, which was organized in 1842, under the name above stated; the objects of which were "mutual benefit in the exercise of temperance, fortitude and justice; securing to its membership sympathy and relief in times of sickness and distress, and in the event of death, the decent observance of the necessary funeral obsequies; and is based upon and seeks the extension of the principles of total abstinence from all intoxicating drinks." In the course of time the association accumulated about five thousand dollars, which was deposited in different banks in the city of New York, and which, according to the allegations of the plaintiffs and some of the defendants, belonged to, and was the property of, all the members equally. The plaintiffs, three in number, were regularly elected trustees, and as such, claimed the care and custody of the funds and the property of the association. In September, 1875, Patricius M. Stackpole, one of the defendants, who claimed to be the chief ruler, served a notice on the various banks, warning them not to pay out any of the money except by order of the Tent. This, and a conspiracy which the plaintiffs alleged was formed by the said Stackpole and other defendants, to deprive various members of the association of their rights, and to gain possession of the funds, gave rise to discord and dissensions among the members; they therefore prayed for a dissolution of the association, the appointment of a Oliver v. Liverpool, &c. Ins. Co., 100 Mass. 531; Fargo v. McVicker, 55 Barb. 437; Taft v. Ward, 106 Mass. 518; Birmingham v. Gallagher, 112 Id. 190. Lafond v. Deems. receiver, and for an equal distribution of the funds among the members. Eleven of the defendants by their answer alleged that the money in question had not been earned by the association in the regular course of collection of dues and fines, but by the transaction of outside business entirely distinct from the objects of the association, and the motives of its founders. And in the transaction of such business, a feeling of bitter hostility had grown up among the members. They also prayed for affirmative relief, that the association be dissolved, the funds equally divided, and they allowed to organize themselves under such name and rules as they might see fit. Twenty-six of the defendants by their answer denied the copartnership; alleged that the fund was a trust fund for the benefit of the order. They admitted the election of the plaintiffs as trustees, but that they had subsequently been dismissed by a majority vote at a regular meeting of the association. That the funds, according to the constitution and by-laws, were lodged equally with the chief ruler and recording secretary; and that, if the trustees thought themselves aggrieved by their dismissal, they should have appealed, either to the Tent, to the high chief ruler of the High Tent, or to the High Tent itself, as provided for in the bylaws. The parts of the constitution and by-laws relating to the application of its funds were as follows: "The funds of the High Tent [one of the governing bodies] shall be devoted to the payment of its current expenses. "Primary Tents shall have power to make such laws for the payment of sick and funeral benefits to their own members, as they may deem expedient, it being optional with each tent whether it provides any system of benefits or not. "The stocks, securities, investments, funds and Lafond v. Deems. other properties of this tent [The Washington Tent'] shall not be disposed of, or transferred in whole or in part, over $100, unless by a motion at a regular meeting, &c. "The treasurer shall hold the moneys so received for the use of the Tent, deliver up, when demanded by the Tent, all moneys, vouchers, books, and papers, to whomsoever the Tent may specially appoint to receive them." A similar clause as to the trustees required them "to deliver to their successors in office, or whomsoever the Tent may appoint, any and all moneys, vouchers, securities and other property and effects of the Tent, which shall come into their hands." There was also a clause that the Tent should never be dissolved or disbanded except by unanimous vote; and that no motion to disband should be entertained so long as there were ten members in regular standing. Evidence adduced on the trial showed that the meetings were very turbulent and boisterous, and all gentlemanly instincts were forgotten, while parliamentary rules were utterly disregarded. Walter S. Cowles and Henry C. Banks, for the plaintiffs. George F. & J. C. Julius Langbien, for eleven defendants, argued :-I. Washington Tent No. 1 Independent Order of Rechabites, is a voluntary association not sanctioned expressly by the Legislature, pursuant to some general or special law, is no more than an ordinary partnership, and as such is subject to the supervision of a court of equity (Austin v. Searing, 16 N. Y. 112; Collyer on Partnership, §§ 25, 553, 624, 626, 627; Gow on Partnership [part 2nd], 227; Wells v. Gates, 18 Barb. 554; Dennis v. Kennedy, 19 Id. 517). II. The law is the same with regard to joint stock |