BURDINE vs. GRAND LODGE OF ALABAMA

BURDINE vs. GRAND LODGE OF ALABAMA. [ACTION ON COMMON MONEY COUNTS.] Judicial nolice of free-masons as charitable corporation. — The courts of this State Trill take judicial notice of the fact, that the society of free-masons is a purely charitable corporation. 2. Competency of corporator as j.wrm', and as witness for corporation.. — The society of free-masons being a purely charitable corporation, a member of the society cannot be said to have the smallest, pecuniary interest in the event of a suit to which the society is a,party; consequently, ho is a competent juror, and a. competent witness for the society. 3. Variance in description of corporation. — The soeiety of •'free-masons in this State being incorporated by the name of the “Most ’Worshipful Grand Lodge of Ancient Free-masons of. Alabama and its Masonic Jurisdiction,” and .suing- by. that name, a charter granted by the “Grand Lodge of .the State of Alabama,” authorising the persons to whom it is directed “to form themsolves-.-into a regular lodge of ancient free-masons, by the name-of Yorkville Lodge Kb. 131,” sufficiently appeals to have been issued by. said corporation, and the mis-description does-not amount to a material variance. Appeal from the Circuit Court.of. Pickens. Tried before tbe Hon. A. A... ColejiáN. This action was brought by the “Most Worshipful-Grand Lodge of Ancient Free-masons of Alabama and its Masonic Jurisdiction,” against James T. Burdine. The complaint contained the common =count for money had and received, and another on an. account.stated. The pleas were — 1st, the general issue ; -2d, payment; .and, ,3d, that-the plaintiff, never was a corporation .authorized to sue on said causes of action. Before the trial was commenced, as the bill of exceptions shows, the defendant challenged for-cause two of tbe jurors, who were shown, to be members of subordinate lodges established under tbe authority of said grand lodge ; and reserved an exception to the overruling of his- objection. On the trial, the plaintiff offered in -evidence an instrument. of writing, which was proved. to be sealed with the seal of said grand .lodge, and signed by IN Clopton, grand-master, P. Williams, deputy grandmaster, S. H. Dixons senior grand-warden, Geo. W. Gaines, junior grand-warden, and A, P. Piaster, grand-secretary,- in the following words : “Wé, the Grand Lodge of the State of Alabama, to-all the enlightened, passed 'and raised, to whom these presents shall came, greeting: Know-:ye, that by the high power vested in us,,we do hereby authorize and empower the following. well-beloved brethren,” (naming seven.- persons,) “residing at or.near Yorkville, in the county of Pickens, State of Alabama, to form, themselves'into a regular lodge of aneient free-masons,- to be opened at Yorkville, by the name of Yorkville Lodge No. 131.;.. and we do hereby empower'the above-named brethren and their successors, with their constitutional number, to assemble and open a legal lodge, to confer the degrees of. entered apprentice, fellow-craft; ,and master-mason,, to admit, members, and to do all other business appertaining to said degrees ;; conforming in all their doings to the by-laws of their lodge, and the constitution and by-laws of-the Grand Lodge of the State of Alabama; for which purpose this shall be their sufficient warrant or charter. Given under*- our hands, and the seal of the Grand-Lodge-,-at Montgomery, this-4th December, A.,L., 5S51.”‘ (Signed and sealed 'as above stated.) The plaintiff offered'this document'd n evidence “to show that Yorkville Lodge No. .131/was under the jurisdiction of -said grand lodge and the court admitted it for that purpose, against the defendant’s objection, and he excepted to its admission. The plaintiff also read in evidence its charter of incorporation, as found . in Clay’s Digest, gp. 374-5 ; :and then,-offered one Payne as a witness, who testified, ou^voir dire, “that be was a member of said grand-lodge, and master of Yorkville Lodge No. 131.” The defendant objected to the competency of said witness, and reserved an exception to the overruling of bis objection. The testimony of Payne was to the effect, that the defendant had been treasurer of Yorkville Lodge No. 131, and was indebted to said lodge for a balance of money in his hands as such treasurer. The 'rulings of the court above stated, with others which require no particular notice,, are-now assigned as-error. TURNER Reavis, for appellant. 1. It is one of the oldest maxims of the law, that a jury must be indifferently chosen ; and that not only the smallest pecuniary interest, but even favor or bias towards a party, disqualifies a j uror. FídcIi’s Law, pp. 399-402 •; 3 Bla. Com. 363, m. p.; lies-Icet'h v. Braddoch, -3 Burr. 1856-7 ; Lynch v. Horry, 1 Bay, 229; Davis v. Allen, 11 Pick. 466-; Wood v. Stoddard, 2 Johns. 194; Dago -o. Bailroad Go., 1 Foster, 43S. The jurors objected to could not have been unbiased, indifferent, or disinterested; for the corporation suing, of which they were members, is not only authorized to hold property, and to -sue for money or .other property, but “to do all other things concerning the estates and moneys of the lodge,” — an authority which would empower the members to divide among themselves the very money recovered in this case. It is, in effect, the case of one of the parties to a-suit sitting as a juror on its trial. 2. For the same reasons, Payne was not a competent witness for the plaintiff; being really, an integral part of the corporation, and giving evidence for himself. As a member of the corporation, the judgment would bo- evidence for or against him in any subsequent suit between him and any other members, for an account of the money, debts, and estate of the corporation ; and in the event of a «dissolution of 'the corporation, he would be entitled to a share of the very money recovered in this suit. — Code, §§ 1489-.D.0, 2651. -3. The instrument offered in evidence, as the charter ol Yorkville Lodge No. 131, ought not to have been admitted. A -corporation can only act in and by its corporate name. The'charter -of the subordinate lodge, therefore, emanated from some other body than tbe plaintiff; or, if granted by the plaintiff, was an unauthorized act. E. W. Peck, contra, 1. The plaintiff is a purely charitable corporation, as this court must- judicially know, even if the fact were not apparent on the face of its charter. The corporation being charitable, its members áre compe- • tent jurors and witnesses. — 1 Greenl. Ev. §§ 332-8 ; E. G lutrch v. Wood, 5 Ohio, 2S3 ; 3 Phil. Ev. pp. 5S-60., note 37 ; Purjole v. Horton, 13 Wendell, 20. 2. No specific objection was made to the charter of the subordinate lodge; no material -variance dr misdescription of the corporation is shown by it; and it does not lie in the defendant’s mouth, after acting under -the charter, and receiving the money belonging to the lodge, to question the authority of the charter. [MAJORITY — STONE, J.] STONE, J. It is certainly- a good and wholesome rule, which should be strictly regarded, that any pecuniary interest, even' the smallest, in ’the event Of the suit, will disqualify a person from serving on the jury charged with its trial. This rule-is necessary as a protection to the public interest, and as a guaranty of that purity and integrity in the administration of the law, which alone can inspire respect for, and confidence in our judicial tribunals. — Russell v. Hamilton, 2 Scam. 56 ; Lynch v. Horry, 1 Bay, 229; Wood v. Stoddard, 2 Johns. 194; Finch’s Law, 399 ; Hesketh v. Braddock, 3 Burr. 1856 ; Davis v. Allen, 11 Pick. 466 ; Brittain v. Allen, 2 Den. 120; Page v. Railroad Co., 1 Foster, 438 ; 3 Black. Com. 363. If, however, <fche sqciety of free-masons is, in its financial policy, purely eleemosynary, or charitable, then the merm hers of the .grand lodge, as such, cannot be said to have any pecuniary interest dn the result of the suit; and no other ground of -challengo against these jurors being shown, the ruling'-of the- circuit court, on the hypothesis stated, would be -free from error. — Com. v. O'Neil, 6 Gray, 343 M. E. Church v. Wood, 5 Ohio, 283 ; 1 Greenh. Ev. § 333 ; Nason v. Thatcher, 7 Mass. 398 ; Pliil. Ev., Cow. & Hill’s Notes, (edition of 1850,) vol. 3, pp. 58-9, The society known as free-masons lias long existed in this country, and in almost or quite-every part of it. The purpose and objects-of the society have been made public iii numerous books, periodicals, and public addresses. From all these sources of information, and from the generally received and accredited judgment of the public, the sole purpose and object with which masonic institutions acquire money and property,'beyond their current expenses as-a society, (furniture, lights, fuel, stationery, and the like,) are for the bestowal of reliefs and charities to the needy. In addition,-the 3d and 4th sections of the act to incorporate masonic lodges in the State of Alabama, tend to. confirm the belief that the society-is eleemosynary in its aims. Under these circumstances, we hold, that we will take judicial notice, that the grand ancl subordinate lodges of free-masons- within the State of Alabama constitute a charii able or eleemosynary corporation. — Mayor of Wetumpka v. Winter, 29 Ala. 660; Salomon v. The State, 28 Ala. 88; Dozier v. Joyce, 8 Por. 303 ; Lampton v. Haggard, 3 Mon. 149; Jones v. Overstreet, 4 Mon. 547; Floyd v. Ricks, 14 Ark. 293 ; Stephen v. State of Georgia, 11 Ga. 241; Duncan v. Littell, 2 Bibb, 424 ; Sterne v. The State, 20 Ala. 43 ; Ward v. The State, 22 Ala. 16. It results from what we,, have said above, that the circuit court rightly overruled the. -several objections to the jurors and to the witness. It is also urged,, that the circuit court erred in admitting .in .evidence the .charter of, the subordinate lodge, because oL a variance between the corporate name of the grand lodge of free-masons. as found in the act of incorporation, and that by which it granted the charter to the subordinate lodge. In the leading case of the Mayor and Burgesses of Lynn, (10 Rep. 124,) it is said, that “ variances in syllabis et verbis, and not in sensu et re, are not material.” It is further stated, as the rule for determining tvhen the variance is immaterial, that the descriptive words used shall import the certain and true name of the corporation. In Newport Mechanics’ Manf. Co. v. Starbird, (10 N. H. 125,) it is intimated'as sufficient, “if there is enough expressed to show that there is such an artificial being, and to distinguish it from all* others.” In the case of Doe, on demise of Mayor, &c., of Waldon v. Miller, (1 Barn. & Ald. 699,) the declaration stated a demise by “the mayor, aldermen, capital burgesses and commonalty of the borough town of Waldon.'” The act of incorporation- given in- evidence named the corporation “the mayor, aider-men,-capital burgesses, and commonalty of Waldon.*’ ' The court of king’s bench ruled the variance immaterial. — See, also, Mayor, &c., of Stafford v. Bolton, 1 Bos. & Pul. 43 ; Inhab. of Middletown v. McConnice, Pennington, (N. J.) 500, in margin ; African Society v. Varick, 13 Johns. 38; Midway Cotton Manf. v. Adams, 10 Mass. 360 ; Inhab v. String, 5 Halst. 323 ; Milford and Chil. Turnpike Co. v. Brush, 10 Ohio, 112 ; Minot v. Curtis, 7 Mass. 444; Hagerstown Turnpike Road v. Creeger, 5 Har. & Johns. 122. In the case from 10th New Hampshire Reports, cited supra, it was said, that -“the alteration or transposition of a word in the name [of a natural person] frequently makes an entirely different name ; while the name of a corporation frequently consists -of several descriptive words,' and the transposition of them, or an interpolation, or omission, or alteration ’of some of.-the-m,-may make no essential difference in the case.” ' In Smith v. Plankroad Co., (30 Ala.663,) we said, “There is a well-marked distinction between- a -misnomer, which incorrectly names a corporation, but correctly describes it, and tbe statement in the pleading of an entirely different party.” — See, also, McWalker v. Branch Bank, 3 Ala. 153; Crawford v. Bank, 4 Ala. 313 ; Smith v. Br. Bank, 5 Ala. 26 ; Hancock v. Br. Bank, ib. 440 ; Snelgrove v. Br. Bank, ib. 295; Crawford v. Br. Bank, 7 Ala. 383; Caldwell v. Br. Bank, 11 Ala. 549 ; Davis v. Br. Bank, 12 Ala. 463 Com. Bank v. French, 21 Pick. 486 ; Angell on Corporations, 98 a, 101, 645, et seq. The name '.of the plaintiff below, as expressed in the act ¡by -which it was incorporated, is the '“Most Worshipful •Grand Lodge of Ancient Free-masons of Alabama, and its Masonic Jurisdiction.” The charter which was issued to the subordinate lodge, to the admission of which in evidence exception was reserved,, is in the name of “the Grand Lodge of the State of Alabama,” is directed to certain persons by name, and authorizes .them’“to form themselves into ,a regular lodge of ancient free-masons, by the name of Yorkville Lodge No. 131.” These marks of identification, we hold, sufficiently show that the charter was issued by the “Most Worshipful Grand Lodge of Ancient Free-masons of Alabama,” and the only variance consists in the omission of some words, making no essential difference in .the name. We think the corporation was identified by words sufficiently descriptive to let it in as evidence ; and, hence, we hold, that in this matter the cireuiá .court did not err.. Affirmed.