Year: 1879

decision was given yesterday by Judge Barrett in
the injunction case brought by Hubert Thompson
against the Tammany Society or Columbian Order.
to prevent the initiation of lat proposed members
From the opinion which is given below it will be
seen that Judge Barrett continues the injunction.
He holds that the meeting for the election of the
members In question was not properly advertised;
that the plaintiff was fraudently deprived of his
rights Q member, through the fraud that was
practised In respect to the meeting. and that the
proper remedy is not by quo warranto proceedings.
but that the remedy has been properly sought
through the present application for Injunction
JUDGE BARRKTr's OPINION


There can be doubt about the facts of this
It clearly appears that the plaintiff requested the
retary, Mr. Stevens, to notify him OF any meetings
piled with (of course ex gratis but in the present
instance 1T was ignored and Mr. Stevens went to the
opposite extreme Of calling the meeting in N unn
scarcely be called newspaper and then holding
it long before the customary hour One would be
obtuse indeed who upon the facts presented did not
deliberate purpose to deprive tue plaintiff Of his
right to attend and vote. Indeed, Mr.. Stevens
shss nmss bend e and byaw
declares that he formally complied Herewith and
that he alone Ia responsible for the methods adopted
Nor does he deny that as to regular meetings. the
society has made its own almanac and given uni
formiy to the setting of the same. Thus, the fraud
upon the plhluClu was LWO1OlO-urbt III auVortlSluB
with intent not to notify second in proceeding be-
fore the customary hour with intent to provide
against the possible accident OF notice. What is the
answer attempted to be made to these chargesY The
learned counsel for the defendant do not dispute the
secrearys purpose. Their contention is that he af-
laws and that shere can be redress The @ rst
answer to this is that tho bylaws were not strictly
complied with.


Public notice Of this meeting not given in
one newspaper. for the Mercantile Journal is not
newspaper in the in which that word is used in
the bylaw. The object OF the bylaw was to give
tice, and the newspapers contemplated thereby were
general circulation The journal in question is but
one OF class of publications known trade papers,
which are sold only 20 advertisers in quantities for
free distribution. Further the meeting not held


a half hour after the setting of the sum-, because
that phrase doubtless to precision for general
convenience, has acquired definite meaning by the
resolution and custom OF the society and there is
pretence Of compliance with such corporate interpre
taion But st further even Il there had been strict
vitiste the act, especially where as here there was
trust relation.


Fraud vitates even the most solemn proceedings Of
courts OF which upon their face
have been conducted with perfect regularity and in
dure. "Acts, though valid in the abstract" !" says
Judge Cowen, in Anson, 20 wend.. $40. ''are almost
without exception treated by the law nullities
when done in fraud of third persons. Even judg-
ments and decrees obtained with that view often
avoided" and in the Bank of BuHalo VS.. Lowry
(Ib., p 633) the same learned Judge observed that
"it is by means an extenuation much less


protection to fraud that legal machinery is resortsd
to in its perpetration" In Jackson vs.. Crofts
(1S Johns, 110) the proceedings to have been
entirely regular but the sale held to be fraudu
lent and void because the assignee Of the MORTGAGE
who acted suctioneer, seeing the defendant ap-!
proach. struck the premises down TO his brother
ton ' such procsedinss sSs - said Judge wadswostS, %
would be subversive Of Justice Dobson VS..
Pearce. Kern. 1885, and Hugyins W. King. Barb.
served with process, but induced by the plain
tas assurances that no further proceedings would be
within the power of q court OF equity.


BOLD AND ORIGINAL VIEWS.


Now can y be doubted that relief IL equally within
served by publication. and the plaintiff BY articc
trickery not to speak OF direct information. pre-
notice? And yet we are told that compliance with
the forms Of corporate bylaw greater force and
with the laws Of the land; that the society whose
officer has made Of the bylaws for the purpose.
not discovered, Of depriving the plaintif Of his
rights IL snenable to NO law, and that the member
wronged can have redress. 1t also urged that
this result would be the same even If the secre-
stated 5 nIa sh.. gone NO nesting % had bssn e caIed
that no advertisement had been inserted and
that he need not trouble himself upon the subject
These bold, and. we may be permitted to say,
original views. They unsustaiued by reason.
supported by authority and sbhorrent to our sense
we'll settled that the effect of what would otherwise
be notice may be destroyed not only by actual mis-
but ey mere OF oy anything
point. Kerr on Fraud or Mistake, p. 25. and cases
there citsdj We may add that strict adherence to
the letter Of bylaw. so Tar from absolutely absolv
ing all parties. may. under certain circumstances,
point quite clearly In the direction Of fraud with all
its attendant consequences.


DRAWING A PARALLEL.


Take single illustration. suppose an incor-
porated club required the secretary to notify men,
gentleman at his address as contained in the direc
tcry for the current year. Will 1t be said that when
dress that Official after perhaps repeatedly acting
upon such notification. may on subsequent occa-
sion, not carelessy but designcdly. and to prevent
members attendance ut particular meeting. ignore
the change aud comply with the bylaw by mailing to
the directory addresss Now. If this may be done
with impunity and without redress In one case, why
not in another. until finally the secretary becomes
the practical srbiter ON all questions OF membsrship


rREnooArIvEs OF THE sxcnxrARr


What counsel have said about the right Of the
rotary to choose the newspaper newspapers and
enough. OF that right there is no question. Bnt it
must be fairly exercised. The intent must be honest


- oa soana y times to penesras the
distinctly proved. What we mean to assert is that
fraud may be predicatsd OF clear abuse Of discre
established and substantially undisputed; that this
amounts in law to = fraud upon the plaintiff for
which he is entitled to redress. and that is none the
less fraud because perpstrsted In part under the
letter Of corporate bylaw.


The next consideration is whether the act Of the
W
IL general rule that the act of agent when act
ing within the scope of his authority. binds the
principal. This doctrine applies 70 corporations,
and . company is as much bound by the frauds OF
tts authorized agents % an individual. The officers
OF corporation, when acting IN the line Of their
duty, are its agents. corporation can no moro
profit by tho fraudulent acts Of its president,
tsry or treasurer than such acts had the author
tty or the directors or trustees. II the present dis
cussion with reference to direct pecuniary In
tersst. we apprehend these general principles would
not be disputed. But why should the fact
that such interests are indirect and result
ant affect the question Why even II there
were no possibln pscuniary interests. and the
plaintiff were simply deprived of his right to partici
pate In the deliberations OF benevolent society
There really Is no just distinction Far as the effect
OF the fraud In concerned There surely can be good
reason why charitable society social club should
be bound by the fraudulent acts OF its president or
secretary, which deprive member Of his right to
vote upon question ~ 70 the proper disposition OF
it, funds or property and yet be entirely absolved
whore similar acts have deprived the member OF
voice In the selection Of his associates OF those en-
titled 70 share In the pecuniary social other bene
dts offered by the institution. Any such doctriue