decisions are practically unanimous in holding that in seeking benefits the member is required to exhaust the remedies provided for in the society before applying to the courts;13 but in the absence of any inhibition in the society's rules, or where no provisions exist for appeals to superior bodies within the or ganization the member may pursue his ordinary legal remedy.14 So where the society refuses or neglects to act for the mere purpose of harassing the member, which practically amounts to a denial of justice, or acts in bad faith, action may be commenced in the courts at once.15 So where the officers act without authority, their judgment is void, and like a void judgment of a court of law, it is of no avail, hence an appeal to the society's tribunal is not a necessary condition to maintain action. 16 And it was said in one case that in extreme probability of fair action, or that the appellate tribunal would reach a different conclusion, no appeal in the society is necessary.17 Many cases hold that the society may prohibit actions at law altogether and make its decisions final, and that where the society's tribunals act in good faith with impartiality and without fraud, their determination should be deemed conclusive. 18 Such regulations are sustained upon the ground that these societies are private beneficial institutions, operating upon the members only who, by reasons of policy or convenience affecting their welfare and perhaps their existence, adopt rules for their government, to be administered by themselves, to 13 Karcher v. Sup. Lodge Knights of Honor, 137 Mass. 368, 19 Cent. L. J. 152; Chamberlain v. Lincoln, 129 Mass. 70; Grosvener v. United Soc. of Believers, 118 Mass. 78; Dolan v. Court Good Samaritan, 128 Mass. 437; McAlees v. Order Iron Hall (Pa.), 13 Atl. Rep. 775, 12 Cent. Rep. 415, 17 Ins. L. J. 832; Grant v. Langstoff, 52 Ill. App. 128; Oliver v. Hopkins, 144 Mass. 175.

14 Smith v. Society, 12 Phila. 380; Dolan v. Court Good Samaritan, 128 Mass. 437; Cartan v. Father Matthew's Soc., 3Daly (N. Y.), 20; Kentucky Lodge v. White, 5 Ky. Law Rep. 418; Olery v. Brown, 51 How. Pr. (N. Y.) 92,94.

15 Carlen v. Drury, 1 Ves. & B. 154, 159.

16 Hall v. Sup. Lodge Knight of Honor, 24 Fed. Rep. 450.

17 Loubat v. LeRoy, 40 Hun (N. Y.), 546.

18 Fritz v. Munck, 62 How. Pr. (N. Y.) 69, 74, 75; Van Poucke v. St. Vincent de Paul Soc., 63 Mich. 378, 29 N. W. Rep. 863, 6 Western Rep. 32; McAlees v. Order of Iron Hall (Pa.), 3 Atl. Rep. 755, 12 Cent. Rep. 415, 17 Ins. L. J. 832; Cincinnati Lodge v. Littlebury, 6 Weekly Law Bul. (Ohio) 237; Mohawk Lodge v. Wentworth, 4 Weekly Law Bul. (Ohio) 513; Wollsey v. Independent, etc., 61 Iowa, 492, 13 Ins. L. J. 68; Commonwealth v. Union League, 135 Pa. St. 301, 20 Am. St. Rep. 870; Canfield v. Knights of Macabees, 87 Mich. 628, 24 Am. St. Rep. 186; Poultney v. Bachman, 31 Hun, 49, 54; Rood v. Assn., 31 Fed. Rep. 62.

which every person who becomes a member consents, or because they require the surrender of no rights that an individual may not waive, and are binding only so long as he chooses to recognize their authority.19 But where a society's rights in this respect are conceded, the power to finally reject claims must be given in the clearest and most explicit terms, for it is never presumed. 20 On the other hand, it is held that these socities may prescribe rules as to procedure in enforcing claims, and may require appeals to superior bodies before instituting suit, but that they cannot entirely take away the right to invoke the aid of courts in asserting rights existing in favor of their members arising from contract.21 "To create judicial tribunals," remarked the Court of Appeals of New York, "is one of the functions of the sovereign power; and although parties may make such tribunals in any specific case, by a submission to arbitration, yet the power is guarded by the most cautious rules.''22 The Supreme Court of Indiana declares that, "it is not within the power of individuals to create judicial tribunals for the final or conclusive settlement of controversies.

It is to be noted that agreements to submit a matter to arbitration are valid when made after the specific controversy has actually arisen and not when made in advance, certainly not when the agreement provides that one of the interested parties shall be sole arbitrator.”28 "Every citizen," says the Supreme Court of the United States, "is entitled to resort to all the courts of the country and to invoke the protection which all the laws or all those courts may afford him. A man may not barter away his life, or his freedom, or his substantial right. He cannot bind himself in advance by an agreement which may be specifically enforced, thus to forfeit

*

19 Anacosta Tribe of Red Men v. Murbach, 13 Ind. 91, 94, 71 Am. Dec. 623; Black and White Smith Soc. v. Vandyke, 2 Wharton (Pa.), 309, 30 Am. Dec. 263; Torman v. Howard Ben. Assn., 4 Pa. St. 519; Austin v. Searing, 69 Am. Dec. 671-678, and note.

20 Albert v. Order of Chosen Friends, 34 Fed. Rep. 721; Bauer v. Sampson Lodge, etc., 102 Ind. 262; Olery v. Brown, 51 How. Pr. (N. Y.) 92, 94.

21 Bauer v. Sampson Lodge, etc., 102 Ind. 262; Supreme Lodge v. Garrings, 104 Ind. 138; Sweeney v. Ben. Soc., 14 Week. N. C. (Pa.) 466, 438.

22 Austin v. Searing, 16 N. Y. 112, 69 Am. Dec. 665, note pages 671-678.

23 Bauer v. Sampson Lodge, etc., 102 Ind. 262, 269; Kisler v. I. R. R. Co., 88 Ind. 460; Mentz v. Armenia Ins. Co., 79 Pa. St. 478, 21 Am. Rep. 80; Wood v. Hum. phrey, 114 Mass. 185.

his rights at all times and on all occasions, whenever the case may be presented."24 The Supreme Court of Maine says that, "the law and not the contract prescribes the remedy, and the parties have no more right to enter into a stipulation against a resort to the courts for their remedy in a given case than they have to provide a remedy prohibited by law. Such stipulations are repugnant to the rest of the contract, and assume to divest courts of their established jurisdiction. As conditions precedent to an appeal, to the courts they are void."25

He

5. Right of Action.-It has thus been seen that, according to the doctrine of many cases, the member's right to apply to the court for relief may not be materially restricted, and that according to the doctrine of others, in asserting his claim to benefits, he must first exhaust the remedies provided for by the society, but that in the absence of provisions in this respect he may bring his action at once. There are two early Pennsylvania cases which are frequently cited as sustaining the rule that an action is not the proper remedy, but it is believed, that they are not authorities to this point, although the dicta of one of the cases seems to go to this extent. In Vandyke's Case26 the question was not presented in the record. The member had been expelled by the society. then sued the society for benefits which accrued, as he claimed, after the expulsion, and the question really decided was that he could not, in such action, collaterally attack the legality of the expulsion. However, Gibson, C. J., speaking for the court, said: "Even were there not a sentence in the way, the payment of stipendiary allowance could not be enforced by action. The society never consented to expose itself to the costs and vexation of an action for every weekly pittance that might be in arrear. For open disregard of the prescribed form of procedure the remedy would be by mandamus to the proper organ. * The remedy by action is therefore misconceived." In Torain's Case,2 ,27 which was an action to recover six week's benefits, where the plea was non-assumpsit, the trial court thought that the 24 Home Ins. Co. v. Morse, 20 Wall. 245; Barron v. Burnside, 121 U. S. 186.

25 Stephenson v. Ins. Co., 54 Me. 70.

26 Black and White Smith Soc. v. Vandyke, 2 Whart. (Pa.) 313.

27 Toram v. Howard Ben. Soc., 4 Pa. St. 519.

dictum of Vandyke's case governed, but upon appeal, the supreme court decided it upon another point, the lower court's ruling, denying the form of procedure, not being considered, although this was the only question discussed by counsel. In a later Pennsylvania case, arising in the Philadelphia court of common pleas, an action was allowed for benefits, where there was no method provided in the society for the recovery of denied claims, the court holding that above cases had not the force of "stare decisis."28

6. Against whom Action is to be Brought. -Where the society is regularly incorporated, of course, the action is to be brought against it, but in unincorporated voluntary associations, the question as to who is liable is not so clear. It is said that in the latter societies, except where by statute suit is permitted in the name assumed by the association, the action is against the individuals.29 In New York, by virtue of a statutory provision, the action is properly brought against the society's president or treasurer, 30 and where the society lacks both of these officers, the action may be against its chief officer.31 It is said that at common law, unincorporated societies are in respect to their rights and liabilities, merely partnerships. 32 Hence, suits against such associations cannot at common law, be maintained in the name of the organization, nor in the name of its agents or officers, but actions must be brought and maintained in the names of all the members.34 This is the rule with reference to partnerships.35 It is held that by

33

28 Smith v. Society, 12 Phila. 380.

29 Mohawk Lodge v. Wentworth, 4 Week. L. Bul. (Ohio) 513.

30 Bridenbecker v. Hoard, 32 How. Pr. 297; Walter v. Thomas, 42 How. Pr. 338; Tibbetts v. Blood, 21 Barb. (N. Y.) 650; Dewitt v. Chandler, 11 App. Pr. 459; Olery v. Brown, 51 How. Pr. 92; Fritz v. Munck, 62 How. Pr. 69.

31 Hathaway v. N. Y. Mining Exch., 31 Hun (N. Y.), 775. See Austin v. Searing, 16 N. Y. 112, 69 Am. Dec. 665; Llyod v. Loaring, 6 Ves. 773.

32 Dicey on Parties, 149.

33 Curd v. Wallace, 7 Dana (Ky.), 190, 32 Am. Dec. 85; Detroit Schuetzen Bund v. Detroit Agitations Verein, 44 Mich. 313, 38 Am. Rep. 270.

34 Williams v. Bank of Michigan, 7 Wend. 542; Sullivan v. Campbell, 2 Hall, 271; Pipe v. Bateman, 1 Iowa, 369; Beaumont v. Meredith, 3 Ves. 15; Pierce v. Piper, 17 Ves. 15; Babb v. Reed, 5 Rawle, 159; Park v. Spaulding, 10 Hun (N. Y.), 131; Ebbinghausen v. North Club, 4Abb. N. C. 300; Koehler v. Brown, 2 Daly, 78; Wood v. Wood, L. R. 9 Exch. 190, 10 Eng. Rep. (Moak), 372; Ellison v. Ringgold, 2 Jacob & W. 503; Brown v. Dale, L. R. 9 Ch. Div. 78, 25 Eng. R. (Moak), 776; Gorman v. Russell, 14 Cal. 532, 18 Cal. 688; Collyer on Part., Sec. 53. 35 Teed v. Elwothy, 14 East. 210.

36

virtue of a common interest, new members of an unincorporated society are permitted to join in an action with respect to matters relating to such interests. In one case it was held that the members being parties inter se were liable to one of their members for sick benefits where the relief was exclusively confined to their new members, and where the articles of association contemplated no charitable object. But whether the members may be held liable as partners in all cases seems undetermined. 38 Many decisions hold that they cannot. 39 It has been held that the members of an unincorporated lodge of Odd Fellows were not liable to an action at law for the recovery of funeral benefits by the next of kin of a deceased member, under the constitution and by-law which provide that "in case of the death of a brother, there shall be paid to the nearest of kin of such brother a sum to defray the expenses of his funeral, which shall be paid over without delay."'40

7. Pleading and Practice.-To recover benefits by suit, the petition or declaration must allege how the obligation on the part of the society to pay the benefits arises, that is, what rules and regulations exist, and that the plaintiff has fully complied with these. Hence, an allegation, claiming a balance alleged to be due during a particular sickness, at the rate of so much a week, "the sum paid by said society to the sick of said society" is insufficient. Likewise an allegation that, "it is a rule of said association that every member in good standing shall be entitled to" a certain sum per week, is insufficient to show a binding legal obligation on the part of the association to pay its members such sum.42 So an allegation stating that a by

41

36 Mears v. Moulton, 30 Md. 142.

37 Pritchett v. Schafer (Pa.), 2 Week. N. C. 317.

38 Cullen v. Duke of Queensburry, 1 Bro. Ch. Ca. 103; Lloyd v. Loaring, 6 Ves. 773; Cockburn v. Thompson, 16 Ves. 321; Hess v. Wertz, 4 L. & R. 356; Witner v. Schlater, 2 Rawle, 359; Ridgely v. Dobson, 3 W. & S. 118.

29 Waller v. Thomas, 42 How. Pr. 344; Lafond v. Deems, 81 N. Y. 514; Fleming v. Hector, 2 M. & W.

45

law of the association "every member in good standing when sick is entitled," etc., is insufficient for failing to allege that such bylaw was in force at the time of plaintiff's sickness. 43 In an action to recover these benefits the burden of proof is upon the plaintiff to establish the by-law, rule or custom, rendering the society liable.44 Where the regulation is that "upon application to. the stewards of the society," benefits shall be allowed in a proper case, such benefits begin to run from the date of the application, and not from the date of the sickness or disability. However, this question of course, is dependent upon the proper construction to be given the rules of the given organization. As has already been stated, to recover benefits, a compliance with the society's rules appertaining thereto is necessary; however, a substantial compliance is all that is required. Thus, where the rules are that each sick member shall send to the society "every week during his sickness" a certificate signed by a qualified physician, stating his illness, etc., before he shall be entitled to a weekly allowance, a member upon being sick, sent to the society the proper certificate, but which did not describe the signing physician as a doctor, yet accompanying it was a letter from the member, in which he referred to the "doctor's certificate," show a sufficient compliance to entitle the member to recover the allowance for the week that the certificate was sent, but nothing was allowed him for the subsequent period of his sickness, as he failed to give an excuse for not sending the weekly certificate. 47 However, the court would not consider what might be the effect if he had been prevented by act of God, rendering him incapable of sending the certificate weekly. But probably this would not have been a sufficient legal excuse, for it was not a matter that must necessarily have been done personally by the member, as it could have been done by another for him. Doubtless the construction of the rules of life in

Supreme Court of Minnesota, June 8, 1896.

1. Trespass Quare Clausum Fregit - Venue.-An action of trespass quare clausum fregit may be brought in another State from that in which the land lies.

2. Application of State Statute.-The action of trespass quare clausum fregit is changed when the land lies without the State from a local to a transitory action.

MITCHELL, J.: This action was brought to recover damages for injuries to real estate situated in Wisconsin, caused by the negligence of the defendant. The question presented is, can the courts of this State take cognizance of actions to recover damages to real estate lying without the State; in other words, is such an action local or transitory in its nature? The history of the progress of the English common law respecting the locality of actions will aid in determining how this question ought to be decided on principle. Originally, all actions were local. This arose out of the constitution of the old jury, who were but witnesses to prove or disprove the allegations of the parties, and hence every case had to be tried by a jury of the vicinage, who were presumed to have personal knowledge of the parties as well as of the facts. But, as circumstances and conditions changed, the courts modified the rule in fact, although not in form. For that purpose they invented a fiction by which a party was permitted to allege, under a videlicet, that the place where the contract was made or the transaction occurred was in any county in England. The courts took upon themselves to determine when this fictitious averment should and when it should not be traversable. They would hold it not traversable for the purpose of defeating an action it was invented to sustain, but always traversable for the purpose of contesting a jurisdiction not intended to be protected by the fiction. Those actions in which it was held not traversable came to be known as transitory, and those in which it was held traversable as local, actions. Actions for personal torts, wherever committed. and upon contracts (including those respecting lands), wherever executed, were deemed transitory, and might be brought wherever the defendant could be found. As respects actions for injuries to real property, we cannot discover that it was definitely settled in England to which class they belonged prior to the American Revolution. As late as 1774, in the leading case of Mostyn v. Fabrigas, 1 Cowp. 161, 2 Smith, Lead. Cas. Eq.

916, Lord Mansfield, who did more than any other jurist to brush away those mere technicalities which had so long obstructed the course of justice, referred to two cases in which he had held that actions would lie in England for injuries to real estate situated abroad. In that same case he said: "Can it be doubted that actions may be maintained here, not only upon contracts, which follow the persons, but for injuries done by subject to subject, where the whole that is prayed is a reparation in damages or satisfaction to be made by process against the person or his effects within the jurisdiction of the court." While all that is there said as to actions for injuries to real property is obiter, yet it clearly indicates the views of that great jurist on the subject. And we cannot discover that it was fully settled in England that actions for injuries to lands were local until the decision of Doulson v. Matthews, 4 Term R. 503, in 1792-16 years after the declaration of American independence. The courts of England seem to have finally settled down upon the rule that an action is transitory where the transaction on which it is founded might have taken place anywhere; but is local when the transaction is necessarily local-that is, could only have happened in a particular place. As an injury to land can only be committed where the land lies, it followed that, according to this test, actions for such injuries were held to be local. As the distinction between local and transitory venues was abolished by the judicature act of 1873, we infer that actions for injuries to lands lying abroad may now be maintained in England. It is somewhat surprising that the American courts have generally given more weight to the English decisions on the subject rendered after the Revolution than to those rendered before, and hence have almost universally held that actions for injuries to lands are local. In the leading case of Livingston v. Jefferson, 1 Brock. 203, Fed. Cas. No. 8.411, which has done more than any other to mold the law on the subject in this country, Chief Justice Marshall argued against the rule, showing that it was merely technical, founded on no sound principle, and often defeated justice; but concluded that it was SO thoroughly established by authority that he was not at liberty to disregard it. But so unsatisfactory and unreasonable is the rule that since that time it has, in a number of States, been changed by statute, and in others the courts have frequently evaded it by metaphysical distinctions in order to prevent a miscarriage of justice. Chief Justice Marshall's own State of Virginia changed the rule by statute as early as 1819. Some courts have made a subtle distinction between faults of omission and of commission. Thus in Titus v. Inhabitants of Frankfort, 15 Me. 89, which was an action against a town for damages sustained by reason of defects in a highway, it was held that, while highways must be local, the neglect of the defendant to do its duty, being a mere nonfeasance, was transitory. It has also been held

that where trespass upon land is followed by the asportation of timber severed from the land, if the plaintiff waives the original trespass, and sues simply for the conversion of the property so carried away, the action would become transitory. Telegraph Co. v. Middleton, 80 N. Y. 408; Whidden v. Seelye, 40 Me. 247. Again, it has been sometimes held that an action for injuries to real estate is transitory where the gravamen of the action is negligence-as for negligently setting fire to the plaintiff's premises. Home Ins. Co. v. Pennsylvania R. Co., 11 Hun, 182; Barney v. Burstenbinder, 7 Lans. 210. In Ohio the rule has been repudiated, at least as to causes of action arising within the State, as being wholly unsuited to their condition, because under their judicial system it would result in many cases in a total denial of justice. Genin v. Grier, 10 Ohio, 209. Almost every court or judge who has ever discussed the question has criticised or condemned the rule as technical, wrong on principle, and often resulting in a total denial of justice, and yet have considered themselves bound to adhere to it under the doctrine of stare decisis. An action for damages for injuries to real property is on principle just as transitory in its nature as one on contract or for a tort committed on the person or personal property. The reparation is purely personal, and for damages. Such an action is purely personal, and in no sense real.

Every argument founded on practical considerations against entertaining jurisdiction of actions for injuries to lands lying in another State could be urged as to actions on contracts executed, or for personal torts committed, out of the State, at least where the subject-matter of the transaction is not within the State. Take, for example, personal actions on contracts respecting lands which are conceded to be transitory. An investigation of title, of boundaries, etc., may be desirable, and often would be essential to the determination of the case, yet such considerations have never been held to render the actions local. Another serious objection to the rule is that under it a party may have a clear, legal right without a remedy where the wrongdoer cannot be found, and has no property, within the State where the land is situated. As suggested by plaintiff's counsel, if the rule be adhered to, all that the one who commits an injury to land, whether negligently or willfully, has to do in order to escape liability, is to depart from the State where the tort was committed, and restrain from returning. In such case the owner of the land is absolutely remediless. We recognize the respect due to judicial precedents, and the authority of the doctrine of stare decisis; but, inasmuch as this rule is in no sense a rule of property, and as it is purely technical, wrong in principle, and in practice often results in a total denial of justice, and has been so generally criticised by eminent jurists, we do not feel bound to adhere to it, notwithstanding the great array of judicial decisions in its favor. If the courts of England, genera

tions ago, were at liberty to invent a fiction in order to change the ancient rule that all actions were local, and then fix their own limitations to the application of the fiction, we cannot see why the courts of the present day should deem themselves slavishly bound by those limitations.

It is suggested that the statutes of this State, in conformity to the old rule, make actions or injuries to real property local. Gen. St. 1894, §§ 5182, 5183. This is true, and, strangely enough, in 1885, the legislature went so far as to provide that, if the county designated in the complaint is not the proper one, the court should have no jurisdiction of the action. But this statute has no application to causes of action arising out of the State. While it settles the rule, and indicates the policy of this State as to actions for injuries to real property within the State, we do not think it ought to have any weight in determining what the rule should be as to causes of action arising out of the State, which can have no local venue here under the provisions of the statute. It does not appear whether the plaintiff lives in this State or in Wisconsin, but this is immaterial, for the place of his residence cannot affect the nature of the action. It is also true that in this particular case jurisdiction of the defendant could be obtained in Wisconsin, but this fact is likewise immaterial, and for the same reason. Order reversed.

NOTE.-Local and Transitory Actions-Distinction as to Venue.-By the common law, personal actions, being transitory, may be brought in any place where the party defendant may be found; real actions must be brought in the forum rei site; actions for trespasses and injuries to real property are also local and will not lie elsewhere than in the place rei sitæ. Story on Confl. L. 551; South Africa Co. v. Companhia De Mocambique (1893), App. Cas. 602. At common law venue was transitory when the cause of action might have happened in any county; it was local when it could happen in one county only. An assault could happen in any place. The entry upon land could only happen where the land lay. The place of trial in the latter case, therefore, was fixed by the very nature of the injury complained of. 1 Chitty on Plead. 271; Gould on Plead. 105, 106, 107; Bouvier's L. Dict.; Rafael v. Verelst, 2 W. Bl. 1055; Doulson v. Matthews, 4 Term R. 503; Shelling v. Farmer, 1 Strange, 646; McKenna v. Fisk, 1 How. (U. S.) 241; Hurd v. Miller, 1 Hilton (N. Y.), 540. Transitory actions are actions the cause of which may arise in any place or county as well as another. 1 Chitty on Plead. 243; Rogers v. Woodbury, 15 Pick. (Mass.) 156.

Originally it was necessary to state truly the venue of every fact in issue, whether those on which the plaintiff relied, or any matter stated by way of defense; and if the places were different, each issue would be tried by a jury summoned from the place in which the facts in dispute were stated to have arisen. After the statute, 17 Car. 2, ch. 8, the practice arose, which ultimately became regular and uniform, of trying all the issues by a jury of the venue laid in the action, even though some of the facts were laid elsewhere. When juries ceased to be drawn from the particular town, parish or hamlet where the fact took place, that is, from among those who were supposed to be informed of the circum.