illustration of what has been prefaced, than the question of how far the partial payment of principal and interest by one of two or more joint promisors will remove the bar of the statute of limitations as to the rest. The different rules adopted in England and in the several States of the Union has made this question one of uncertainty, and which may continue to vex the profession at large, unless a fixed rule should be finally agreed upon and established by inter-State legislation. Such an important question relating to commercial paper should not be left in doubt as to the correct rule that should govern it, because it is important to the parties whose interests are at stake, that they know their respective rights and liabilities. It is important to the holder of a promissory note that the law be established, else he might mistake the extent of his remedies. And it is equally important to the promisors that they know the extent of their liabilities as affected by the act of a joint promisor. In England, the first case which we find reported where this question came up for decision is that of Whitcomb v. Whiting,1 decided in 1781. This was a suit brought on a joint and several promissory note executed by four persons. The interest and a partial payment was paid by one of the joint promisors within six years, and it was sought to hold the other promisors by reason of such payments having been made. The defendants pleaded the Statute of Limitations in bar, but the court held that they were liable. Lord Mansfield, in his opinion on a rule for a new trial, says: "Payment by ore is payment by all; the one acting virtually as agent for the rest, and in the same manner, an admission by one is an admission by all, and the law raises the promise to pay when the debt is admitted to be due." Willes, J., concurring, says: "The defendant has had the advantage of the partial payment, and therefore must be bound by it." Following close upon that of Whitcomb v. Whiting we find Jackson v. Fairbank,2 decided in the year 1784, in which the principle laid down in Whitcomb v. Whiting was directly affirmed, and carried one step further, and it was declared that even a dividend out of the estate 1 Douglass, 652. 22 H. Blackstone, 340, of a co-promisor who had become a bankrupt, received by the payees of a joint and several promissory note, within six years, was sufficient to remove the bar of the statute as to the others. The next case chronologically is Brandran v. Wharton (1810), in which the doctrine of Jackson v. Fairbank was overruled, as carrying the principle declared in Whitcomb v. Whiting too far, however, reaffirming the latter case. Atkins v.Tredgold1 (1823), affirms the principle as above stated, but the four judges delivering their opinions distinctly repeat that the doctrine should not be extended. Perham v. Raynal,5 decided in 1824, was also a case in point, with the exception that the note sued upon was a joint promissory note, while the above were all joint and several notes. In this case the authority of Whitcomb v. Whiting is affirmed and held to establish sound doctrine. Three years later, Burleigh's Executors v. Stott," came up and was determined. This was a suit on a joint and several promissory note by the executors of Burleigh, the payee, against the executors of the surety, where the principal had paid the interest within six years, and the defendants relied on the bar of the Statute of Limitations to escape liability. The Court of King's Bench held, affirming the principle above cited, that the plaintiffs were entitled to recover. Lord Tenterden, C. J., saying: "I think that in this case there was sufficient evidence of a promise by the intestate within six years to pay jointly and severally according to the form of this note. Suppose the note had been joint only, there could not have been any doubt that a part payment by one of the joint promisors would refer to the nature of the note, and operate as an admission by all the joint promisors, that the note was unsatisfied, and therefore as a promise by all to pay the residue. Here the note is joint and several, and the plaintiffs are bound to sue as if it was the several note of the intestate, because Stott, one of the joint promisors, is dead. I am of opinion that a part payment by one is an admission by both that the note is unsatisfied, and that it operates as a promise by both to pay according to the nature of the instrument, 31 B. & Ald. 463. 4 2 Barn. & Cress. 23, 52 Bingh. 306. 68 Barn. & Cress. 35 and consequently as a promise by the defendant's intestate to pay on this his several promissory note." Bayley, J., concurring. 8 Holroyd, J., says: "Whitcomb v. Whiting, and Jackson v. Fairbank, are in point, and must govern the present case. It conceded that part payment by one of two joint promisors within the six years being an admission that the note was unsatisfied, operates as a promise by both to pay the joint note. I also think that such payment operates as a promise to the full extent of the original promise contained in the instrument. The joint and several promises apply to the same sum of money. there was a several promise by each to pay it. It seems to me that where two persons jointly and severally promise to pay one and the same sum of money, each of them makes the other his agent for the purpose of making any payment in respect of that sum of money." It was a joint debt, though I have quoted quite largely from this last cited case in order to show the reasoning by which the authority of Whitcomb v. Whiting was upheld, and that although fifty years had elapsed, the same argument was used to sustain the doctrine as Lord Mansfield had used when he delivered the opinion in that case. Notwithstanding the frequency with which the soundness of this leading case has been questioned, and the endeavors made at different times to overthrow it, there is not a single dicta to be found in any of the cases bearing on this question, which can be construed as holding adversely. This was the settled rule of law in England until the year 1856, when the statute 19 & 20 Vic., ch. 97, sec. 14 was passed, whereby it was completely changed. The substance of that act was, that no partial payment of the principal or interest by one joint promisor would remove the bar of the Statute of Limitations as to the other joint contractor. In this country we find that the question has vexed the minds of some of our most eminent jurists, and as a doubtful question it has given rise to a conflict of decisions. In some of the States of the Union, the ruling of the English authorities has been been adopted; in others the very opposite doc 7 Douglass, 652. 82 H. B!. 310. 9 trine is held, while in several States an intermediate ground is taken. In Maine, Massachusetts,10 Vermont,11 Indiana, 12 Ohio, 13 Kentucky and California, the doctrine of Kentucky Whitcomb v. Whiting, was fully recognized but in each State the legislature has changed the rule so that the former doctrine is entirely repudiated. Connecticutt,14 Rhode Island, 15 New Jersey, Maryland 16 and Wisconsin, 17 hold still to the old ruling, mainly on the ground of stare decisis. Beasley, C. J., of New Jersey, in 8 recent case Merritt V. Day, 18 lays much stress on this maxim of law, holding that the opinions of jurists as declared and acquiesced in for years, should be entitled to respect and weight, especially where the result of a contrary opinion would be to render unstable a branch of the law which above all others should be fixed and uniform. In a majority of States of the Union the decisions of the courts have been opposed to the doctrine as just reviewed. These States are New Hampshire, 19 New York, 20 Pennsylvania, 21 North Carolina, 22 Georgia, 23 Alabama, 24 Mississippi, 25 Tennessee 26 and Nebraska.27 New Hampshire was among the first States: to denounce as unsound the authority of Whitcomb v. Whiting. Richardson, C. J., in Exeter Bank v. Sullivan,28 declaring that the question should be decided on sound legal principal, says: "We are satisfied that the statute of limitations was intended to be a statute of repose. It is a wise and beneficial law, having a tendency to produce adjustments of affairs between parties while they remain fresh in their recollection, and before 9 Getchell v. Herald, 7 Gr. 26. 15 Perkinsadon v. Barstow, 6 R. 88. 19 Exeter Bank v. Sullivan, 6 N. H. 124. 20 Van Keuren v. Parmalee, 2 N. Y. 523; Bogert v. Vermilea, 10 Bar. 32; Dunham v. Dodge, 10 Id. 566. 21 Coleman v. Fobes, 22 Pa. St. 156; Clark .v. Burns, 5 Norris 502. 22 Davis v. Coleman, 7 Iredale 413. 27 Dayberry v. Willoughy, S. C. Neb., 18 Jan. 1877. 28 6 N. H. 124. time in its lapse has thrown darkness and obscurity upon them. It is neither unjust nor discreditable to take advantage of the statute, especially in the case of a surety. * Those who hold that an acknowledgment or partial payment of the debts, by one may take a case out of the statute as to all the joint debtors, found their opinion upon the ground, that the bar, created by the statute, rests entirely upon the presumption that the debt has been paid and that such an acknowledgment or payment removes the presumption and revives the original promise. And they conclude, and if this be a correct view of the subject, very justly conclude, that in this, as in other cases, an acknowledgment by one of many who are jointly concerned is evidence against all, sufficient to remove the presumption. This is the explanation given by Best, C. J., in Perham v. Raynal; 29 and this is the explanation given by Lord Mansfleld,30 when he says that payment by one is payment by all. evidence of a promdebt, but not the * Those who hold the opinion that an acknowledgment of the debt by one, does not take a case out of the statute as to another joint promissor, rest their opinion on the ground that an acknowledgment of the debt does not in any case take a cause out of the statute and that it is only ise which may revive the original promise. If then the admission of a debt does not of itself take the case out of the statute, but is only evidence of a promise which may have that effect, the principle that an acknowledgment by one joint debtor, will take a case out of the statute as to another, falls to the ground. There is nothing left to support it. For although one joint debtor may admit the fact of the existence of the debt, which admission will be evidence of that fact against another joint debtor, still it by no means follows that by such admission he can raise a new promise that will bind another joint debtor. It is not pretended that one can make a new contract in such a case that will bind the other." In New York and Pennsylvania the books show quite a conflict of decisions, however, the question has been finally determined in both States. In the latter State the question 29 2 Bingham 306. 30 Whitcomb v. Whiting, Douglas 652. was at first decided squarely on the authority of Whitcomb v. Whiting. 31 Afterwards the same question came up again before the Supreme Court when the former ruling was reversed 32 since when the rule has remained fixed.33 In South Carolina 34 and Arkansas, 35 an intermediate ground is taken, holding that a payment of interest from year to year or the partial payment of the principal within the time allowed for the bar of the statute of limitations, will continue the liability of all the parties, while payments made after the bar of the statute had attached, will only continue the liability of the party making them. In the Federal Courts, the question came before the Supreme Court of the United States, at an early day, when the doctrine of Whitcomb v. Whiting was repudiated.36 From the foregoing, we may observe, that with the exception of a few States in this country, the rule of law on this question is directly opposed to that as held in Whitcomb v. Whiting. On the reasonableness of this change there is no doubt, for what good grounds are there for holding that a payment of interest or a small partial payment of the principal by one promisor, insolvent and perhaps in collusion with the obligee, shall create a liability on the part of a joint promisor, who is under no legal or moral obligations to pay. It is a matter of regret that Whitcomb v. Whiting was ever decided as it was, because the whole difficulty, and the conflict of decisions on the question is directly traceable to it. This decision was a stumbling block to the English lawyers and judiciary, previous to the enactment of the statute whereby it was overruled. However, as the doctrine therein declared has been repudiated in almost every State and country governed by English common law, it only remains for the judiciary of some few States to fall in line and thus secure that uniformity so much desired by those whose vocations in life require them to handle commercial paper. W. T. BROWN. Lancaster, Pa. 31 Zent's Ex. v. Heart & Eyster, 8 Pa. St. 337. 32 Coleman v. Fobes, 22 Pa. St. 156. 33 Clark v. Burns, 86 Pa. St. 502. CORPORATIONS — POWER OF EXPULSION. The power of expulsion of members is said to be incident to every corporation, and is as necessary to the good order and government of corporate bodies, as the power of making by-laws.1 But this broad statement must be taken with some limitations. The right to deprive a member of a corporation of his rights as such by expulsion, depends in a greater or less degree upon the nature of the corporation and its charter or constitution. It seems this power can not be exercised with respect to joint stock corporations, where the capital is divided into shares and the corporation has for its object pecuniary gain. In such cases, ownership of shares or stock constitutes membership, and to expel the member for any act or omission would be to deprive him of his property by summary proceedings. Accordingly, it is said the company can not divest the member of his interest without his assent; and in case of expulsion, he is entitled to recover the amount of his stock in an action against the corporation. This, however, is only true as to corporations where there is no authority expressly conferred for the expulsion of members. It is otherwise when the charter or articles authorize the company or its directors to forfeit stock for the non-payment of dues. 3 Causes. The charter may specify what acts may be sufficient ground for removal; but when it is silent upon the subject of removal, or only grants it in general terms, there appear to be only three causes which will justify expulsion. First. Where the offense committed has no immediate relation to 1 King v. Richardson, 1 Burr. 517; Tidderly's Case, 1 Sid. 14; Lord Bruce's Case. 2 Sti. 819; Smith v. Smith, Devan (S. C), 557; 2 Kent's Com. 297. 22 Kent's Com. 298; Green's Brice's Ultra Vires, 45-47: People v. Board of Trade, 80 Ill. 134; Evans v. Philadelphia Club, 50 Pa. St. 107; Society v. Commonwealth, 52 Id. 125; Leech v. Harris, 2 Brewst. 571. 3 Evans v. Philadelphia Club, 50 Pa. St. 107; Society v. Commonwealth, 52 Id. 125; Leech v. Harris, 2 Brewst. 571; Hopkins v. Exeter, L. R. 5 Eq. 63; Rochler v. Mechanics' Aid Soc., 22 Mich. 86; Davis v. Bank of England, 2 Bing. 393; State v. Tudor, 5 Day, 329; Delacy v. Neuse River Nav. Co., 1 Hawk, 271; Ebaugh v. Hendel, 5 Watts, 43. See Waterbury v. Express Co., 3 Abb. (N. S.) 163; State v. Justinian Soc., 15 La. Ann. 73; Bagg's Case, 11 Co. 99; Ang. & Ames' Corp., 233; Hope v. International Financial Soc., W. N. (1876) 257. the member's corporate duty, but is of so infamous a nature as to render him unfit for the society of honest men,-as the offenses of perjury, forgery, etc. Second. When the offense is against his duty as a corporator, for which he may be expelled on trial and conviction. Third. When the offense is of a mixed nature, against the member's duty as a corporator, and also indictable by the law of the land. But before a member can be expelled in the first instance, there must be a previous conviction by a jury according to law. 5 It is a condition annexed to the franchise of every member of a corporation, that The will not oppose or injure the interests of the corporate body; and where a member commits an act in direct contravention to the purpose for which it is organized, it has been held the corporation has the express power of expelling such member.6 In State v. Med. Soc., it was held that even when the by-laws provided for the expulsion of members, it had not arbitrary power and uncontrolled discretion in the matter, and that courts might investigate the action of the corporation taken under it. 8 Notice. While it is true that the corporation has the power expressly or impliedly of removal, it is also true that the member cannot be expelled, without notice of the intention, and reason for explusion, together with 4 Ang. & Ames' Corp. 240; Commonwealth v. St. Patrick's Soc., 2 Binn. 448; Rex v. Richardson, 1 Burr. 517; People v. Med. Soc., 24 Barb. 570; 32 N. Y. 187; Rex v. Liverpool, 2 Burn. 731; Fawcet v. Charles, 13 Wend. 476; Bac, Abr. Corp., e. 9; Grant Corp. 264; State v. Chamber of Commerce, 20 Wis. 63; Leech v. Harrison, 2 Brewst. 571; Roehler v. Mechanics' Aid Soc., 22 Mich. 86; People v. Chicago Board of Trade, 40 Ill. 112; People v. New York Commercial Ass'n, 18 Abb. 271; Dickinson v. Chamber of Commerce, 29 Wis. 45. 5 Commonwealth v. St. Patrick's Soc., supra; Leech v. Harris, supra; Society for Visitation of Sick v. Meyer, 52 Pa. St. 125; People v. Fire Underwriters, 7 Hun, 248. 6 Commonwealth v. St. Patrick's Soc., supra; People v. Underwriters, supra; Page v. Board of Trade, 45 Ill. 112; People v. New York Com. Ass'n, 18 Abb. Pr. 271. 7 38 Ga. 608. 8 For some decisions as to what will be sufficient or insufficient to warrant the expulsion of a member, see People v. Com. Ass'n, 18 Abb. Pr. 271; People v. Sailor's Snug Harbor, 5 Id. (N. S.) 119; Commonwealth v. Philanthropic Soc., 5 Binn. 486; Society for Visitation of Sick v. Commonwealth, 52 Pa. St. 125; Protector v. Kingston, Sti. 478; Rex v. Andover, 3 Salk. 229; Jay's Case, 1 Vent. 302; Commonwealth v. Society, 2 Binn. 441; Green v. African Soc., 1 Serg. & R. 254; Diligent Fire Ins. Co. v. Commonwealth, 75 Pa. St. 291. an opportunity to be heard in opposition to the charge. In some instances the notice may be dispensed with, as when the party has either appeared at the meeting and defended himself, or answered the charges.10 It does not seem necessary that the notice should particularize the charges, any further than to give the member an idea of what charges will be brought forward against him, in order that he may be able to properly make his defense.11 A reasonable time must be given in which to answer the charges, and produce the testimony; and he is also entitled to be represented by counsel, to cross-examine the witnesses and to except to the proofs against him.12 But when a member has been convicted by a jury for an infamous crime, a vote of expulsion would be legal without any notice or preferment of charges, however necessary those ceremonies might be when the offense concerned the corporate interests. 13 Restoration.-When a member of a corporation is illegally removed, he may be restored by application to the court. The remedy is by mandamus. 14 But when the association is merely voluntary and not organized for the 9 Black & White Smith Soc. v. Vandyke, 2 Whart. 309; Green v. Af. Meth. Ep. Soc., 1 Serg, & R. 254; Com. v. Penn. Ben. Inst., 2 Id. 141; Com. v. Guardians, 6 Id. 469; Com. v. Pike Ben. Soc., 8 Watts & S. 247; Washington Soc. v. Bacher, 20 Pa. St. 425; Fuller v. Plainfield Acad., 6 Conn. 523; Barrows v. Med. Soc., 12 Cush. 402; People v. St. Franciscus Ben. Soc., 24 How. Pr. 216; People v. N. Y. Com. Ass'n., 18 Abb. Pr. 271; People v. Sailor Snug Harbor, 54 Barb. 532; Delacy v. Neuse Riv. Co., 1 Hawks. 274; South Plank Road Co. v. Hixon, 5 Ind. 165; Leech v. Harris, 2 Brewst 571; White v. Brownell, 2 Daly 329; Sibley v. Cartnet Club, 40 N. J. L. 295. 10 Willcox Mun. Corp., 265; Or if he be present, it is unnecesary that there be further notice. Conea. v. Penn. Ben. Inst., 2 S. & R. 141. 11 Rex v. Liverpool, 4 Burr. 734; See Exeter v. Glide, 4 Mad. 37. 12 State v. Bryce, 7 Ohio 414; Rex v. Richardson, 1 Burr. 540; Rex v. Liverpool, Id. 734; Murdock v. Cleadenry, 12 Pick. 244; Rex v. Chalke, 1 Ld. Raym. 226; Rex v. Derby. Cas. Temp. Harden, 154. 13 Ang. & Ames, Corp., 246. 14 Burrows v. Mass. Med. Soc., 12 Cush. 402; Crocker v. Old South Soc., 106 Mass. 489; Sleeper v. Franklin Lyceum, 7 R. I. 523; People v. St. Franciscus Soc., 24 How. Pr. 216; People v. Med. Soc., 24 Barb. 570; People v. St. Stephens Church, 6 Lans. 172; People v. Ben. Soc., 3 Hun. 361; Delacy v. Neuse Riv. Co., 1 Hawks. 274; State v. Georgia Med. Soc., 38 Ga. 608; State v. Justinain Soc., 15 La. Ann; 73 People v. Mich. Aid. Soc., 22 Mich. 86; State v. Chamber of Com., 20 Wis. 68; Society v. Com., 52 Pa. St. 125; Com. v. Soc., 2 Binn. 441; Same v. Franklin Ben. Soc., 10 Pa. St. 357; Same v. German Soc., 15 Id. 251; Evans v. Phila. Club, 50 Id. 107; Cook v. College of Physicians, 9 Bush. 541. The plaintiff Kensit was the freeholder of certain lands in the parish of Mistley, in the county of Essex, through which the defendant company's railway ran, and the plaintiff Glover was his tenant. Prior to the formation of the company's railway and the culvert hereinafter mentioned, there was a natural stream of water flowing through the plaintiff's land, and the plaintiff and the occupiers for the time being of the said lands had always been entitled to have the water of the stream flowing in its natural state through and into the said lands. The defendant company in the year 1854 purchased from the plaintiff Kensit, for the purposes of their railway, a part of his land, carrying their railway accross the stream, and, in pursuance of sec. 68 of the Railway Clauses Act, they made a culvert under their railway to convey the water of the stream from the plaintiff's land on one side of their railway to his land on the other side. The defendant Free was a maltster and saccharine manufacturer, whose factory was situate near to the culvert, but his premises did not border on the stream, and it appeared that by an agreement between the railway company and Free he had been allowed to insert a pipe to intercept the water of the stream as it flowed through the culvert under the company's railway. The water was drawn off through the pipe into a tank on the company's premises, and thence pumped through a suction pipe into Free's factory. The water so taken, after having been used by Free, was returned through another pipe into the stream at a point a few feet below the |