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designated as such, and though the statutes relating to jointstock companies do not so designate them' or have expressly declared that they shall not be so considered. But with respect to the personal liability of members to creditors of the company, they are still subject to the common law rules ap plicable to partnerships.3

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(a) When treated as

§ 168. Voluntary associations partnerships. While for many purposes, as, for example, in respect of their rights inter esse, the members of voluntary associations are treated by the courts as partners, their per

Bank, 3 Edw. 395; Bank of Watertown v. Watertown, 25 Wend. 686; In re Bank of Dansville, 6 Hill, 370; People v. Niagara, 4 Hill, 20; Willoughby v. Comstock, 3 Hill, 389; People v. Watertown, 1 Hill, 616; Leavitt v. Yates, 4 Edw. 134; Leavitt v. Tyler, 1 Sandf. Ch. 207; Boisgerard v. New York Banking Co., 2 Sandf. Ch. 231. "Joint-stock companies may be said to be partnerships, or individuals associated for some specific purpose under a designated name or description, to which, by some general or special statute, when they have been formed or composed in a specified manner, some of the powers or proper attributes of a corporation are given." Dayton &c. R. Co. v. Hatch, (1855) 1 Disn. 84, 90.

562; Cross v. Jackson, (1843) 5 Hill, 478; Wells v. Gates, (1854) 18 Barb. 554; Skinner v. Dayton, (1822) 19 Johns. 513; Boston & Albany R. Co. v. Pearson, (1880) 128 Mass. 445; Taft v. Ward, (1873) 111 Mass. 518; Taft v. Ward, 106 Mass. 518; Oliver v. Liverpool & London L. & F. Ins. Co., (1868) 100 Mass. 531; Bodwell v. Eastman, (1871) 106 Mass. 525; Frost v. Walker, (1872) 60 Me. 468; Cutter v. Estate of Thomas, (1852) 25 Vt. 73; Kramer v. Arthurs, (1847) 7 Pa. St. 165; Tappan v. Bailey, (1842) 45 Mass. 529. Contra, Townsend v. Geowey, (1838) 19 Wend. 423; Ridenour v. Mayo, (1883) 40 Ohio St. 9; Irvine v. Forbes, (1852) 11 Barb. 587. 4 Thus where the articles of association had been disregarded, the court considered a mutual society

1 People v. Wemple, (1889) 52 Hun, for insurance of property as a gen434.

2 Fargo v. Louisville, N. A. & C. Ry. Co., (1881) 6 Fed. Rep. 787; Sanford v. Board of Supervisors, (1858) 15 How. Pr. 172; Waterbury v. Merchants' Union Express Co., (1867) 50 Barb. 157. The legislative intent in so declaring being merely to prevent the limited liability of members incident to corporate existence. Oliver v. Liverpool &c. Ins. Co., (1868) 100 Mass. 531, 539.

Westcott v. Fargo, 61 N. Y. 542; Witherhead v. Allen, (1867) 3 Keyes,

eral partnership, for the purpose of adjusting the rights of members against each other. Ellison v. Bignold, 2 Jac. & W. 503. In Brown v. Dale, 9 Ch. Div. 78, the "Fellowship of Fullers & Dyers" was treated as a partnership for the purpose of making a division of a fund among the members. And a mutual marine insurance society has been treated as a partnership for the purpose of determining whether a member had been rightfully expelled or not. Wood v. Wood, L. R. 9 Exch. 190.

sonal liability to creditors of the association depends not upon the principles of partnership but upon the law of agency. For to constitute a partnership, strictly speaking, there must be a community of interests for business purposes. So that voluntary associations, clubs for social and charitable purposes, and the like, are not properly partnerships, and their members neither possess the powers nor share the responsibilities of partners. Another ground of distinction can be seen to be this: If a partner dies, the partnership is dissolved, but if a member of one of these associations dies, it has no effect on the association. They are therefore not to be judged either as corporations, joint-stock associations or co-partnerships.2 There is a case, however, in New York in one of the lower courts, where a number of young gentlemen forming a club were treated as a partnership to the fullest extent, and held

"The law of unincorporated com- to bind the partnership by a credit; panies is composed of little less than the law of partnership modified and adapted to the wants of a large and fluctuating body." "Club Law," 27 Alb. L. J. 326; Leache's Club Cases, 9.

1 Parsons on Partnership, 6, 36, 42, cited in Ash v. Guie, 97 Pa. St. 493; s. c. 39 Am. Rep. 818. "I had thought, but without much consideration, at the assizes, that these sort of institutions were of such a nature as to come under the same view as a partnership, and that the same incidents might be extended to them; that where there was a body of gentlemen forming a club and meeting together for one common object, what one did in respect of the society bound the others, if he had been requested and consented to act for them. Trading associations stand on a different footing. Where persons engage in a community of profit and loss as partners, one partner has the right of property for the whole; so any of the partners has a right in any ordinary transaction, unless the contrary be clearly shown,

he might accept a bill of exchange in
the name of the firm, and as between
the firm and strangers the partner-
ship would be bound, although there
might be an understanding in the
firm that he was not to accept.
I apprehend that one of the members
of this club could not bind another
by accepting a bill of exchange, act-
ing as a committee man, even where
there might be an apparent necessity
to accept, as in the case of a purchase
of a pipe of wine; the party might
draw the bill, but I do not think he
could accept the bill to bind the
members of the club." Flemyng v.
Hector, (1836) 2 Mees. & W. 172, 179,
per Lord Abinger.

2 White v. Brownell, 3 Abb. Pr. (N. S.) 325; s. c. 4 Abb. Pr. (N. S.) 189 ; S. c. 2 Daly, 355; Olery v. Brown, 5 How. Pr. 92. A hose company has been held not to be a partnership; and the court will not decree its dissolution and a division of its assets on the application of a minority. Thomas v. Ellmaker, 1 Parson's Sel. Cas. 98.

liable for the debts of the club. The rule applicable was declared to be that of partnerships, and each member liable until he gives public notice of withdrawal.1

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§ 169. (b) No liability from the mere fact of membership. The liability of members of clubs and other voluntary associations not being derived from the partnership relation, which for other purposes they may occupy one toward another, it follows that no liability attaches from the mere fact of membership. For, as Lord St. Leonards remarked, "if a member paying his annual subscription and paying for the articles which he orders in the club, was also liable to pay the person who supplied the club with those articles, who would belong to a club?" No individual member of a club, or committee of a club, is liable for goods supplied to the club or for debts otherwise incurred by it, if he has not in some manner pledged his personal credit. Thus it has been held that the members of a theatrical club, were not liable on a rent contract made by some of their predecessors in the club, and that if they could be held at all, it would be only for use and occupation. Nor are subscribers to a meeting-house fund liable for work done by another subscriber in the absence of an express agreement. Where a tradesman receiving an

1 Park v. Spaulding, ("Worth Club Case") 10 Hun, 131; Hirschl on Fraternal Societies, 5.

2 In re St. James Club, 16 Jur. 1075; Volger v. Ray, (1881) 131 Mass. 439; Flemyng v. Hector, 2 Mees. & W. 172; Todd v. Emly, 7 Mees. & W. 427; Ash v. Guie, 97 Pa. St. 493. "The determination of the controversy as to the liability of defendants, depends not at all upon the question whether they and the other associated individuals were partners as between themselves, nor upon the question whether as between all the associates and strangers they were such, but upon the law of agency." Davison v. Holden, (1887) 55 Conn. 103; s. c. 3 Am. St. Rep. 40.

In re St. James Club, 16 Jur. 1075.

4 Daly's Club Law, (2nd ed. 1889) 40; Jones v. Hope, (1880) 3 Times L. R. 247; Flemyng v. Hector, 2 Mees. & W. 172; Todd v. Emly, 7 Mees. & W. 427; s. c. 8 Mees. & W. 505. A member of a voluntary association is not liable for a debt incurred by a committee thereof if it does not appear that he was present at the meeting appointing the committee and there is no evidence of the authority of the committee to incur the debt. Volger v. Ray, (1881) 131 Mass. 439.

5 Barry v. Nucolls, 5 Humph. 326. Cheeney v. Clark, 3 Vt. 434. Cf. Abbott v. Cobb, 17 Vt. 597; Robinson v. Robinson, 10 Me. 240.

order for goods signed "R. Stevens, solicitor to the club," examined a list of the members and finding, as he testified, such a list of eminent men figuring on the management committee, that he did not think that there was any reason to suppose that his bill would, under any circumstances, be allowed to go unpaid, his testimony was held conclusive that he relied on the general respectability of the members, and it was decided that he could not single out any individual member to hold him liable for the debt.1

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§ 170. (c) Liability dependent upon pledging of personal credit. To charge a member of a voluntary association with individual liability he must be shown in some manner to have pledged his personal credit. This he may do either immediately by his own contracts, orders, or representations, or mediately through other persons acting as his agents. Thus, the members of a voluntary association for educational purposes are personally liable for the salary of a teacher engaged by the acting president of the association. "Tradesmen supplying goods to a club would look not to the servants or clerks who actually gave the orders, nor to private members of the club, but to those persons who, as active managing members, had held themselves out to the public as responsible." The mere entry of the name of a member on the creditor's book, is not in itself sufficient evidence that it was he who gave the order or is responsible for it; nor, on the other hand, is such entry conclusive against the creditor; for the creditor may have mistaken the person who gave the order as being the agent of one person when he was in fact the agent of another, and for this mistake neither the creditor nor the former person should be made to suffer."

1 Overton v. Hewett, 3 Times L. R. 246.

2 Todd v. Emly, 7 Mees. & W. 427; Jones v. Hope, (1880) 3 Times L. R. 247; Flemyng v. Hector, 2 Mees. & W. 172.

3 Ash v. Guie, (1881) 97 Pa. St. 493, where the officers of a Masonic lodge signing and affixing its seal for the first time to a pecuniary obligation, were held personally liable. "Persons contracting in the name of an

association which is unincorporated are personally liable." Lewis v. Tilton, (1884) 64 Iowa, 220; s. c. 52 Am. Rep. 436.

Heath v. Goslin, (1884) 80 Mo. 310; s. c. 50 Am. Rep. 436.

5 Steele v. Gourley, 8 Times Law Rep. 118, per Day, J.

6 Daly's Club Law, (2nd ed. 1889) 41, citing Delaunay v. Strickland, 2 Starkie, 416.

The degree of au

§ 171. (a) Degree of authorization. thorization which will suffice to fix liability on an individual member of a club or its committee, remains an open question at present. In the older cases dealing with the pledging of personal credit, some action of a distinct and conscious character was held necessary on the part of the individual sought to be charged. But as the law now appears to stand, it is of no legal significance that the defendants did not intend to be individually responsible, or that they did not know or believe that as a matter of law they would be. Personal liability is

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incurred if there has been "authorization," either actual or constructive, involving in liability even a person who had no intention of pledging his personal credit and who had but the slightest knowledge of the transaction.

In this connection

§ 172. (e) General and special agency. it is important to bear in mind the distinction between general and special agents. When liabilities have been incurred by general agents acting within the scope of their authority, all the members may be fairly presumed to have authorized or ratified such acts." Thus if the society, either by rule or custom, allows its officials or servants to incur debts, then all the members are personally liable, and of course where the entire organization is conducted on a credit principle, every member is liable. But in the case of a special agent, or of a general

49.

1 Daly's Club Law, (2nd ed. 1889) for the purpose. Money was accordingly borrowed by the commit

2 Daly's Club Law, (2nd ed. 1889) tee, who gave to the lenders certifi56.

3 Davison v. Holden, (1887) 55 Conn. 103; s. c. 3 Am. St. Rep. 40. 4 Daly's Club Law, (2nd ed. 1889)

57.

5 Davison v. Holden, (1887) 55 Conn. 103; s. c. 3 Am. St. Rep. 40.

6 Cockerell v. Ancompte, 2 Com. B. N. S. 445, n.; s. c. 40 Eng. L. & Eq. 284. In Ash v. Guie, (1881) 97 Pa. St. 493; s. c. 39 Am. Rep. 818, the members of a Masonic lodge, an unincorporated body, appointed a committee to erect a building for its use, authorizing them to borrow money

cates of indebtedness in the name of the lodge, signed by its officers, and sealed with the seal usually employed by the secretary for authenticating communications to other lodges, and which had never before been appended to a pecuniary obligation. In a suit on one of said certificates, wherein all the members were joined as defendants and alleged to be partners, it was held, first, that all the members were not so liable, but only the members of the committee or those members of the lodge who participated in the

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