pany," and in its constitution recited its object to be mutual benefit and relief in case of death as hereinafter set forth. The affairs of the company were intrusted to a board of directors, and its officers were a president, secretary, treasurer, etc. The funds of the company were raised by admission fees of members and assessments, as prescribed in the by-laws. The rate of fees was fixed according to certain enumerated classes, and those who paid the largest premiums were entitled to a proportionate increase of dividends. In the case we have under consideration the title of the corporation is "Merchants' Exchange Mutual Benevolent Society of St. Louis," the words "mutual benefit" being exchanged for "mutual benevolent." The object stated in the constitution of the society is: "To give financial aid to the widows and children of deceased members, or to such uses and purposes as such member shall by his last will and testament direct." The election of nine trustees was provided for, and appointment of the necessary officers, of president, secretary and treasurer. The funds were raised by initiation fees, and classes were arranged as in the Connecticut charter; in short, it is impossible to see any material difference in the two schemes. The opinion of the court was that the corporation or association was an insurance company, and came within the meaning of the Massachusetts statute. I am not satisfied that I could express the views of this court on the first point in the present case in a more condensed, comprehensive or pointed form than will be done by simply employing the language of the Massachusetts Supreme Court: "The contract made between the Connecticut Mutual Benefit Company," says Judge Gray, who delivered the opinion of the court, "aud each of its members, by the certificates of membership issued according to its charter, does not differ in any essential particular of form or substance from an ordinary policy of life insurance. The subject insured is the life of the member. The risk insured is death from any cause not excepted in the terms of the contract. The assured pays a sum fixed by the directors, and not exceeding $10 at the inception of the contract, and assessments of $2 each annually, and of $1 each upon the death of any member of the division to which he belongs, during the continuance of the risk. In case of the death of the assured by a peril insured against, the company absolutely promises to pay to his representatives, in sixty days after receiving satisfactory notice and proof of his death, as many dollars as there are members in the same division, the number of which is limited to 5,000. The payment of this sum is subject to no contingency but the insolvency of the corporation. The means of paying it are derived from the assessments collected upon his death from other members, from the money received upon issuing other certificates of membership, which the by-laws declare may, after payment of expenses, be used to cover losses caused by the delinquencies of members, and from the guaranty fund of $100,000, established by the corporation under its charter. This is not the less a contract of mutual insurance upon the life of the assured because the amount to be paid by the corporation is not a gross sum, but a sum graduated by the number of members holding similar contracts, nor because a portion of the premiums is to be paid upon the uncertain periods of the deaths of such members, nor because in case of non-payment of assessments by any member, the contract provides no means of enforcing payment thereof, but merely declares tho contract to be at an end, and all moneys previously paid by the assured, and all dividends and credits accrued to him to be forfeited to the company." 105 Mass. 149.

The fact offered to be proved by the defendant, that the object of the organization was benevolent, and not speculative, has no bearing upon the nature and effect of the business conducted and the contract made by

the corporation. In the constitution of the present society it is true that no guarantee bond of $100,000 is provided for, but by reference to article 15 of the bylaws it will be seen that a similar fund, though called by a different name, is provided for. That article is as follows: "Article 15. The entrance or initiation fee shall belong to and be invested as a permanent fund, each of the classes being kept separate on the books of the society; provided that the board of trustees are authorized to employ, from time to time, as they in their discretion may deem best, one or more persons to act as solicitors for the purpose of obtaining members to this society, and to pay such solicitor for his services out of the permanent fund, not to exceed the sum of $1 for each member so obtained. The interest on the permanent fund, with the amount assessed against each member on the death of a fellow-member, together with all gifts or income received by the society, shall be placed to the credit of the contingent fund and used for advances for members, in anticipating their dues on the death of a fellow-member, defraying the current expenses of the society, as may be directed by the board of trustees; but if at any time the contingent fund shall exceed the wants of the society for the purpose named, the trustees shall order the same to be invested in bonds."

This opinion of the Supreme Court of Massachusetts, if it be a sound one, would seem to be quite conclusive on the first point discussed in this case, but as the opposite view has been maintained with much confidence in the argument of counsel for the defendant, it may be proper to show by the decisions of other courts that it has been generally acquiesced in, indeed, I may say, uniformly adopted where there were no legislative enactments requiring a contrary construction. The case of Schunck v. Gegenseitiger, Wittwen und Waisen Fond, 44 Wis. 370, is merely an assumption on the part of counsel on both sides, in which the court concurred, that the corporation defendant was a mutual insurance company. The name as translated from the German was the Mutual Widows and Orphans' Fund. It was a corporation organized and acting by the authority of the Grand Lodge of the United Ancient Order of Druids. The grand lodge consisted of representatives from the several groves, which, together with the association, were under the jurisdiction of the grand lodge, and the court declared that the defendant "was obviously organized to secure the ends or serve the purposes of a mutual life insurance company." The description given by the court of the character and operations of this company, with unimportant changes as to details, would apply to the corporation defendant here. Among the provisions of the constitution and by-laws adopted for its management," says Cole, J., "is one which provides that, on the death of a member in good standing, there shall be paid to his surviving widow or heirs the sum of $800 as life insurance. The funds under the control of the defendant are made up chiefly of dues paid by members on admission into the order, and assessments levied upon and paid by the members on the death of a brother. The managing authority of the defendant is termed a directory, which is chosen by the groves from their members, each grove that has not more than seventy-five members being entitled to one member in the directory and to an additional member for each additional seventy-five or fraction exceeding onehalf that number. This directory conducts the whole management of the defendant, fixes the amount of the assessment to be paid by the members on notice of the death of a brother, issues through its corresponding secretary to all the groves a demand of payment of such assessments, and also determines whether the claims of the survivors of the deceased are just. Every member of a grove is obliged to contribute to the fund by paying his admission fee and assessments,

and is entitled to participate in its benefits. The admission fees and assessments are paid by the members to their respective groves, the groves paying over all dues to the directory." The point decided in the case has no connection with the present question under consideration, but it is an answer to the position taken in this case, and somewhat urged in argument that there was no contract provided for by the constitution and by-laws of the present society; that the officers were merely collecting agents and their performance of such voluntary duties could not be enforced. The court held that the groves were a part of the machinery of the corporation for collecting assessments, and were as much agents of the corporation as of the members paying, and their neglect to pay over the money collected could not affect the representatives of the deceased member, but that the corporation was liable, and judgment was accordingly given against it.

In Erdman v. Mutual Insurance Co. of the Order of Hermans' Sons, of Wisconsin, 44 Wis. 376, the title of the company sufficiently indicates its character. But the machinery for collection and contribution and distribution seems to have been essentially the same as in the case just referred to. In Dietrich v. Madison Relief Association, 45 Wis. 79, we have another corporation of the same class and managed in the same way. No question was made as to its being a mutual life insurance company. In a recent case in Kentucky (Kentucky Masonic Ins. Co. v. Miller, 13 Bush, 489), the same doctrine is recognized without question.

So in Masons' Benevolent Society v. Winthrop, 85 III. 537, there was no question raised as to the corporation being an insurance company, but the statement of the case shows no essential difference between it and the benevolent society which is defendant here. The covenant which was sued on consisted of a promise or agreement by the society to pay to the wife of the deceased member, on satisfactory proof of his death, a certain sum of money, depending on the class of which he was a member. The court say the organization is a kind of mutual benefit association, managed by a directory, and the expenses and losses of the society are paid by assessments made upon the members for such purposes. The court declares the certificate of membership in the nature of a policy of insurance on the life of the member. In Illinois Masons' Benevolent Society v. Baldwin, 86 Ill. 479, the corporation was treated by the court, without question, so far as it appears, as an insurance company.

A decision of the Court of Appeals in New York, affirming one of the Supreme Court, has been referred to, though not on the subject of insurance, but to show how little importance was attached by the judiciary of that State to names or ostensible objects of association when their organization and real effect was in conflict with the Constitution of the State. In the case of Governors of the Alms House, etc., v. American Art Union, 7 N. Y. 228, the corporation was professedly devoted to the encouragement and promotion of the fine arts, and the works of art purchased were distributed every year among the members by lot. The Constitution of the State had this provision: "No lottery shall hereafter be authorized in this State, and the Legislature shall pass laws to prevent the sale of lottery tickets within this State, except," etc. There was also a statute which provided that "no person shall set up or propose any money, goods or chattels, or things in action to be raffled for, or to be distributed by lot or chance to any person who shall have paid, or contracted to pay, any valuable consideration for the chance of obtaining any such money, goods or things in action." Notwithstanding the ingenious argument of Mr. O'Conor that the term "lottery" used in the Constitution was not designed to apply to games of chance, where no skill on the part of the player was

required, nor to any schemes where the object was not to raise public revenue, the court, with only a single dissenting voice among the eight judges, did not hesitate to declare the scheme within the constitutional prohibition as well as that of the statute.

The case of Commercial League Association of America v. People, 90 Ill. 166, has been referred to as conflicting with these decisions, but it cannot be so considered. That company was conceded to be an insurance company, but it was held exempt from the general statutes regulating insurance, because of a special exemption in a special statute. We have no such statute here, but we have statutes which are claimed to have the same effect, and this leads us to a consideration of the second point.

Assuming the defendant to be a mutual insurance company, it is claimed that our legislation in regard to corporations which are termed benevolent associations, and especially article 10, contains provisions which expressly exempt the defendant from the provisions of the general law in regard to insurance. This point is not without difficulties, arising from the very peculiar history of our recent legislation.

On the 8th of March, 1879, the following statute was passed: "Section 1. That chapter 70 of the General Statutes of Missouri, being article 8 of chapter 37 of Wagner's Statutes of Missouri, relating to benevolent, religious and educational associations, is hereby amended by adding the following sections thereto, to wit: Sec. 14. The associations and societies of the character referred to and mentioned in the first section of this act may also include in their corporate powers the privilege for providing for the relief and aid of the families, widows, orphans or other dependents of their deceased members, or for assisting such as may be sick or disabled, from the proceeds of assessments upon the members of such society or association. Sec. 15. Any such society or association heretofore or hereafter incorporated under the provisions of this act may avail itself of the benefits of the foregoing section by amendment to its constitution or articles of association in the manner prescribed by this act; all such societies or associations are hereby declared exempt from the operation of the General Statutes of this State in regard to insurance companies."

On the 19th of May, 1879, another act was passed, entitled an act to provide for the incorporation of benevolent, religious, scientific and educational associations, and of miscellaneous associations. The first section is not materially different from the corresponding section in the Revised Code of 1865, as found in Wagner's Digest, page 339. The third section is as follows; "Any association formed for benevolent purposes, including any purely charitable society, hospital, asylum, house of refuge, reformatory and eleemosynary institution, any association whose object is to promote temperance or other virtue conducive to the well-being of the community, and generally any association formed to provide for some good in the order of benevolence that is useful to the public, may become a body corporate and politic under this act, and incidentally such association may provide means wherewith to assist its sick or disabled members, or relieve or aid the families, widows, orphans or other dependents of its members who may die, without being thereby subjected to the operation of the general statutes of this State relating to life insurance; provided that nothing herein contained shall be construed to authorize any such association formed hereunder to insure the life of any member thereof for his own benefit or that of any other person." The concluding section of this act contains the following clause: "Section 14. All acts and parts of acts inconsistent with this act are hereby repealed, provided that nothing in this section shall be prejudicial to any existing

corporation whatever." The revisers included both these acts in the revision, the first as sections 972 and 973, and the second as a part of section 974, but omitted the repealing clause of the last act. They probably acted upon the opinion that it was not their province but that of the courts to determine upon the compatibility of the two acts, and therefore inserted both. Whether the act of the 8th of March would have exempted the corporation defendant in this case from the operation of the general statutes concerning insurance companies, we deem it unnecessary to determine, since the act of the 19th of May, if it did not operate as a repeal of the former act, undoubtedly so modified it as to exclude the defendant from its operation. The charter of defendant constitutes life insurance the main, indeed the only, business of the company. It is not incidental to some other form of benevolence in which aid is extended to bereaved widows or orphans, but as has been shown, practically exhibits benevolence in the same way it is promoted by all life insurance companies.

In plain terms the two acts are irreconcilable, the one aiming to relieve those benevolent associations from the burdens imposed on mutual insurance companies; the other designing, and in terms declaring, that they are not so exempt. They were obviously brought about by different and opposite interests, and from different and opposite motives. They were framed diverso intentu. It is unnecessary to cite authority to show that the last act must govern, though passed by the same Legislature and at the same session.

What was meant by the proviso to the repealing clause of the act of May 19, I confess myself unable to conjecture. It has been suggested that it might apply to a company organized between the 8th of March and the 19th of May, but it is unnecessary to determine the plausibility of such a conjecture, since the defendant was not in that condition. Previous to the session of 1879, no such provision in regard to benevolent associations as were inserted in the act of March 8 is to be found in 1 Wag. Stat., title Corporations, art. 8, p. 339. This act is the sole reliance for any claim of exemption, and being of opinion that the act was repealed or so essentially modified as to prevent any such effect, a judgment of ouster necessarily follows. The other judges concur.

MUNICIPAL CORPORATION - REGULATION OF SLAUGHTER-HOUSES.

NEW YORK COURT OF APPEALS, NOVEMBER, 1880.

CRONIN V. PEOPLE OF THE STATE OF NEW YORK. A power conferred upon a city in its charter to "regulate the erection, use, and continuance of slaughter-houses" within the city, includes the power of total prohibition within specified limits or localities.

THE opinion states the case.

FINCH, J. The plaintiff in error was indicted in the Court of Sessions of the county of Albany for slaughtering cattle in violation of an ordinance of the common council of that city, which forbids such act within certain prescribed limits specifically named and described, and directs, in the interest of health and cleanliness, the manner of conducting such business in the localities from which it is not excluded. Penalties

are imposed by the ordinance for its violation, which may be recovered in a civil action, or by prosecution as for a criminal offense. The Legislature, in 1871, made such violation of a city ordinance a misdemeanor, punishable by fine or imprisonment, or both, in the discretion of the court. Laws 1871, ch. 536, tit. 15,

§ 1. The accused demurred to the indictment, and raises here, in support of his demurrer, the single point, that in passing the ordinance in question the common council exceeded its powers, and the ordinance so passed is inoperative and void. The power of the Legislature to confer authority for such municipal legislation is not assailed, but the claim that it has actually done so is strenuously denied.

The argument on behalf of the city is that the power to pass such ordinance was incidental to it as a municipal corporation, and resulted from its creation as such, without dependence upon particular words; that it was embraced in the powers granted by the Dongan charter of July 22, 1686, and which were reserved to the city by the act of 1842; and was specially conferred by the amended charter of 1870. Laws of 1870, tit. 3, § 12, sub. 14.

The last-named act authorizes the common council of Albany to enact ordinances, with penalties not exceeding one hundred dollars, in the matters and for the purposes thereinafter named; and among these purposes is one contained in subdivision 14, the lauguage of which is as follows, viz.: "To regulate the erection, use and continuance of slaughter-houses." The counsel for the defendant contends that the power thus conferred upon the common council does not justify the ordinance for the violation of which the prisoner was indicted, and his argument is that the clause referred to is a clear recognition of the right to erect, use, and continue slaughter-houses within the city, and everywhere and anywhere within its limits; and that therefore the authority to regulate them cannot be construed to permit a total prohibition in particular areas or location.

We do not think the reasoning is sound. The statute recognizes the fact that slaughter-houses exist in the city, rather than the right to erect them, and recognizing the fact, gives to the common council the power to regulate them. The use of the word "regulate" in the statute is not confined merely to the manner in which the business of slaughtering animals is carried on. To regulate implies a power of restriction and restraint, and is applied in the charter not merely to the "use" of slaughter-houses, which would relate to the manner of conducting the business, but also to their "erection" on the one hand, and their "continuance" on the other; so that their "erection" in the first instance, and then the mode and manner of their "6 use "after they are built, and lastly their “continuance, are placed under the regulating power of the municipal authority. It would be a very narrow and technical construction to say that a power to regulate the erection of a slaughter-house is exhausted in prescribing the form or material of its erection and has no reference to its locality. And the construction wholly fails when applied to the "continuance" of such a structure, and the business carried on within it. How is it possible to regulate its continuance, except by limiting and restricting that continuance, which again can only be done by prohibiting its continued existence. It is the plain purpose of the statute to give to the common council the right to fix aud determine the limits and localities within which new slaughter-houses may be erected, and the areas from which they shall be excluded; to direct and control the mode and manner of using those so erected, and those already existing, as they may deem the health and cleanliness of the city requires; and to prohibit their continuance whenever and wherever they be come sources of danger to the health or comfort of the community.

The counsel argues that this construction may result in a total prohibition; that if the municipal control can exclude slaughter-houses from the area already named in the ordinance, it can steadily increase and

to an action on a bond; and so it has been held in England and this country ever since. The bond in that case was given as an indemnity for a note entered into by the obligee for the purpose of inducing a prosecutor of an indictment for perjury to withhold his evidence. After speaking of the transaction as one to gild over and conceal the truth, the court said: "This is an agreement to stifle a prosecution for willful and corrupt perjury, a crime most detrimental to the Commonwealth; for it is the duty of every man to prosecute, appear against and bring offenders of this sort to justice." * * * "This is a contract to tempt a man to transgress the law, to do that which was injurious to the community; it is void by the common law, and the reason why the common law says such contracts are void is for the public good." Had the defendant not been heard the court would have known nothing of the facts, they were not set out in the bond, the plaintiff was not compelled to show them in making out his case, and on the face of the bond he was entitled to recover; all that which proved it a void contract was shown by the defendant. So in the late case of Ham et al. v. Smith, 6 Norris, 63, the corrupt, immoral and forbidden contract appeared in the proofs adduced by the defendant; the plaintiff made his case by showing the note, the fair-looking fruit of the illegal bargain. Notwithstanding the maxim, it has been settled that where a contract or deed is made for an illegal purpose, a defendant against whom it is sought to be enforced may show the turpitude of both himself and the plaintiff, and a court of justice will decline its aid to enforce a contract thus wrongfully entered into. The principle depends on the public good, not on the merit of the defendant, whose hand is as foul as the plaintiff's. Public policy requires that he be heard, and if the contract be void, his relief is an incident. Swan v. Scott, 11 S. & R. 155, is no exception. There the suit was on a bond, given in satisfaction of an award of arbitrators which had become a judgment; and the defendant proposed to go behind the judgment and show the illegal contract on which the award was obtained; held that he could not, and Duncan, J., remarked: "The test, whether a demand connected with the illegal transaction is capable of being enforced at law, is whether the plaintiff requires the aid of the illegal transaction to establish his case." It is manifest the judgment was conclusive, though obtained in a suit on an illegal contract, and the remark strictly fitted the facts in that case, without infringing on the rule. Wherever that test has been quoted and applied, it will be found there was a good consideration for the contract in suit, before reaching back to the alleged illegal one.

Where the public is not interested, the maxim has its full force, and the law leaves the parties as they placed themselves. Obligors in an instrument under seal, made for the purpose of defrauding the obligee's wife, cannot shield themselves by alleging their own fraud; for this does not belong to the class of contracts forbidden by statute or public policy. Evans v. Dravo, 12 IIar. 63; Hendrickson v. Evans, 1 Cas. 441. On like principle voluntary conveyances and contracts, made to defraud creditors, though void as to them, are good and binding between the immediate parties. These are voided by the statute of 13 Elizabeth, for the benefit of creditors, but not as to the parties. Hershey v. Weiting, 14 Wright, 240; Blystone v. Blystone, 1 P. F. S. 373. "That a collusive contract binds the parties to it, is a principle which commends itself no less to the moralist than to the jurist; for no dictate of duty calls on a judge to extricate a rogue from his own toils." Stewart v. Kearney, 6 Watts. 453. In all such cases the actor is met by the maxim, "In pari delicto melior est conditio possidentis."

Forgery, or the crimen falsi, is an infamous offense. It is classed with other infamous felonies and misde

meanors, the compounding of any of which is a misdemeanor punishable by fine and imprisonment. Act March 31, 1860, § 10, P. L. 387. Under section 9 of the Criminal Procedure Act of 1860 (P. L. 432), no magistrate or court can lawfully permit a settlement of a prosecution for forgery on satisfaction being made to the party complaining; for infamous crimes are excepted from its operation. The Legislature committed no such inconsistency as enacting two acts of the same date, one of which prohibits the settlement of forgery under a severe penalty, and the other authorizing it, if the complaining party acknowledges satisfaction.

Cheats by false pretenses are among the cases authorized to be settled by the 9th section of the Criminal Procedure Act, and therefore Steinbacher v. Wilson & Young, 1 Leg. Gaz. Rep. 76, has no application to the question now pending. And the settlement of cases within that section is not touched by the principles applicable to the compounding of an infamous crime.

Dorsey charged McCullough with forgery, and conducted the prosecution to his indictment and acquittal. After the indictment, and before the acquittal, a bargain was struck, the judgment note given, Dorsey's claim against McCullough satisfied, and Dorsey was not to appear and testify in the forgery case. He saw the Commonwealth fail, for he did not answer to testify, though present. It cannot be doubted that the abandonment of the prosecution and failure to testify entered into the agreement. The note was given for the debt and for the acquittal, and if any part of an indivisible promise, or of an indivisible consideration for a promise, is illegal, the whole is void. Filson v. Himes, 5 Barr, 452.

Agreements founded upon the suppression of criminal prosecutions are void; they have a manifest tendency to subvert public justice. 1 Story's Eq., § 294. it is the nature of the crime, not so much whether it be felony or misdemeanor, which is to be considered. Many felonies are not so enormous as some misdemeanors. The law recognizes this in their punishment; for instance, the maximum of imprisonment for one convicted of forgery is ten years, of larceny three. Stifling a prosecution for forgery, though an offense of the same grade as compounding divers felonies, seems to be a graver offense than compounding some felonies. It comes within the rule, that where the welfare of society and the vindication of the law are the chief objects, the defendant may givo in evidence the illegality of the contract as a bar to a suit to enforce it, and this to prevent evil which would be produced by enforcing the contract or allowing it to stand.

Shall these objects be thwarted, and the evil follow which the law designs to prevent, because of a judgment confessed by virtue of a warrant which is but a part of the criminal transaction?

It was said by the present chief justice, in Hopkins v. West, 2 Norris, 109: "There is no difference in legal effect between a judgment confessed or for want of appearance or plea, and a judgment on the verdict of a jury. The court in which the judgment is rendered will indeed open one of the former kind, and let the defendant in to a defense in a proper case, and upon equitable terms." In Pennsylvania it has always been the right of a defendant in a judgment confessed by virtue of a warrant of attorney to petition that it be opened for cause. This right was so well respected by the courts that there was no occasion for legislation providing for appeal from refusal to open till a recent date. The entry of judgment, either by attorneys or prothonotaries on judgment notes is very common. These, though having the same effect as if on the verdict of a jury, while they stand, in fact never waive the results of adjudication.

To hold that such a judgment, entered on an immoral and illegal obligation, part of a transaction subversive of public interest, shall be deemed an executed