The herald., 1896-06-24
FOR THE DEFENDANTS
Judge Shaw's Decision In the French bene
olent Society Case

TUX luE
Judge Shaw's Decision In the French Benev.
olent Society Case
Judge Shaw yesterday gave his deci-
sion in the case of Silvain Brun against
the Societe Franchise de Renaissance
Mutuelle finding for the defendants. AS
the matter is of Importance to all socie-
ties, the decision is given in full as fol-
lows:
The plaintiff seeks to annul the cleo
ton of trustees of the defendant corpor-
alton on the ground that certain persons
who voted thereat were not members OF
the society and therefore not entitled to
vote. The defendant corporation is
mutual benefit society for the purpose of
securing to the members care and atten-
ton during sickness. Article 20 of the
bylaws is as follows: Every member
who shall allow two months to pass
without paying his monthly dues shall
lose his membership rights; nevertheless
he may re-enter the society by again
submitting to the formalities of admiS-
sion" Another bylaw provided that all
monthly dues should be due on the first
OF each month.
The evidence shows that seven OF the
members who voted had at some time
previous to the election suffered their
monthly dues to become more than TWO
months in arrears, but that at the time
of the election each of them had paid all
arrears and the same had been accepted
by the officers of the society The plain
tiff claims that the failure to pay dues
for more than two months at time,
ipso facto, forfeited all their rights as
member, and that they thereafter
ceased to be members and that they
could not again become members with
out admission in the regular way.
L., ~ Go t1nyrc
married. in Niblack on Benefit Societies,
p. 5S7: while it is competent for a
member of voluntary society to bind
himself by an agreement that his MEM
bership shall be forfeited in case he shall
not pay his assessment within stipula-
ted time, and that such forfeiture shall
take effect at the expiration of that
time without special or personal notice
to him and without any act on the part
of the society declaring forfeiture,
construction leading to such a result Will
not be adopted by the courts unless the
intention to waive such notice and judi
cial act is clearly expressed in the most
unambiguous and explicit language"
In the bylaw in question it is plainly
stated that failure to pay dues for two
months shall cause the member to lose
his membership rights but there is no
| explicit language to the effect that this
| shall take place without notice to such
| member or without any action of the
| society declaring forfeiture. If such
| effect is to be given to the bylaw 1T
| must be done by inference from the
! fact that no notice is provided as con-
| dition precedent to the forfeiture and not
from any express declaration that no.
tce shall not be necessary. And the
same observation holds good in regard
to the necessity of a declaration of for
fixture. 1t is the absence of any pro-
vision to the contrary, and not the
presence of express language, that must
give rise to the construction contended
| for. l do not believe that the bylaw
will bear this construction under the
rule above given.
There are, however, other reasons why
the contention of the plaintiff canot pre-
vail 1t is a rule of law we'll settled, both
in this state and elsewhere, that the ac-
ceptance of dues by a society of this
kind, after such dues have been in ar
rearS long enough to operate as for
fixture of membership under the by
laws, the society having knowledge of
such arrears and right of forfeiture at
the time of such acceptance, operates s
! q waiver of such forfeiture and prevents
the society from afterwards declaring
or claiming that such forfeiture has oc-
Cured. (Niblack on Benefit Societies,
p. $50; Mcdonald VS.. Chosen Friends,
IS Cal, SD
LII ttllS case the very ldCl VI COlleCtlIlS
the dues proves that the society had
notice of its rights to claim the member
ship forfeited and waived the same
Another reason is found in the evil
dence given on the trial to the effect
that from the time of organization Of
the society, a period of more than thirty
years, it has been the universal custom
of the society to accept dues more than
two months in arrears without declar-
ing or claiming a forfeiture, and to allow
ell persons so paying to vote and enjoy
all other rights and privileges of mem
bership, and that this custom was known
and understood by all the members.
This custom, so long continued and
well known, would have the effect to
change, or rather destroy, the effect of
the bylaws, even if it was couched in
language strong and explicit enough
to cause a forfeiture without notice or
official declaration. Such long contin-
ued practice operates as an estoppel
against the society. Niblack Ben. Soc,
pps. $50, 500
I am therefore of the opinion that
| the persons in question were legal voters
| at said election, and that the election
was in all respects legal and valid in
| that particular. The question whether
or not the mere showing that a number
| of Illegal votes We're cast, sufficient to
| have changed the result in case they
| had all voted for the persons who were
! declared not elected. without showing
| that they did so vote, need not be de-
| cided. there being no illegal votes for
consideration.
Findings will be made for the defend
| ants.