on the complainant, and, when such reasonable rate of assessment had been determined by the court, that it should decree that the association should receive that assessment, give receipts therefor to the complainant, and keep his certificate or policy of insurance in force and effect, or issue to him one of the new policies of the association; that they be required to exhibit a list of all its certificates or policy holders in force January 1, 1895, at what age each was issued, the date and amount of each policy, to require the defendants to produce here for the inspection of the complainant all the books, papers, and vouchers of the association which might be necessary to enable him to ascertain the manner in which it had been conducting its business, and whether any of its resources had been fraudulently misappropriated; and for general relief.

Process was served upon the agent of the association as provided by statute. The association appeared by counsel, and demurred to the bill. Its demurrer was sustained, and the bill dismissed. From that decree this appeal was allowed.

Several grounds of demurrer are relied on, but the principal objection urged to the bill is that the case made and the relief sought would require the court to interfere with the internal management of a foreign corporation, a subject-matter over which the court has no jurisdiction. If this objection is well founded, it is decisive of the case, and will render it unnecessary for us to consider the other grounds of demurrer. It seems to be well settled that courts will not interfere with the management of the internal affairs of a foreign corporation. Such questions are to be settled by the tribunals of the state which created the corporation. The reasons for such a rule are apparent. Courts other than those of the state creating it, and in which it has its habitat, have no visitorial powers over such corporation, have no authority to remove its officers, or to punish them for misconduct committed in the state which created it, nor to enforce a forfeiture of its charter. Neither have they the power to compel obedience to their orders nor to enforce their decrees.

Smith v. Insurance Co., 14 Allen, 336; Mining Co. v. Field, 64 Md. 151, 20 Atl. 1039; Condon v. Association (Md.; Jan. term, 1899), 42 Atl. 944; 6 Thomp. Corp. § 8011.

There is nothing in the act of assembly approved May 18, 1887, entitled "An act in relation to insurance companies and associations upon the assessment plan" (Acts Ex. Sess. 1887, p. 348, c. 271), which changes the general rule upon the subject, and gives to the courts of this state the right to control or interfere with the management of the internal affairs of a foreign corporation doing business here. Section 3 of that act provides, among other things, that no insurance company or association organized upon the assessment plan shall transact business in this state by an agent, unless it shall first author

ize some person who is a resident of this state "to act as its attorney, and to acknowledge service of process, or upon whom process may be served for and on behalf thereof, which service shall be taken and held to be as valid as if served upon such corporation or association according to the laws of this or any other state."

The object of that provision of the act was to secure the residents of this state the benefit and protection of its own laws, and to confer upon its own courts jurisdiction to determine and enforce their rights where the subject-matter of the litigation was within their jurisdiction, or the remedy sought was within their reach. It provides how the corporation can be brought into court, but it does not confer upon the courts, nor does it require such corporations to concede, any right to exercise authority over the organization, the corporate functions, nor the relations between the corporation and its members, nor to determine the rights and duties of the corporation or its members arising under the law of the state of its creation, and depending upon its local laws, nor deprive it of the right to plead a want of jurisdiction on the ground that the subject-matter of the sult, or the remedy sought, is beyond the reach of the court, or not within the sovereign power of the state from which the court derives its authority. Smith v. Insurance Co., supra; Clark v. Association (Feb. 7, 1899) App.

D. C. -; and Condon v. Same, supra. See Story, Confl. Laws, § 543.

The next question to be considered is whether or not the acts complained of are so distinctively acts pertaining to the management of the internal affairs of the association that they can only be inquired into by the courts of the state creating it.

It is sometimes difficult to determine what acts of a corporation relate to its internal management and what do not. The cases are not entirely agreed upon this question.

In the case of Mining Co. v. Fields, 64 Md. 151, 20 Atl. 1039, which has been cited with approval by many courts, and may be regarded as the leading case upon this subject, the line of distinction is stated as follows: "That where the act complained of affects the complainant solely in his capacity as a member of the corporation, whether it be as stockholder, director, president, or other officer, and is the act of the corporation, whether acting in stockholders' meeting or through its agents, the board of directors, that then such action is the management of the internal affairs of the corporation, and in the case of a foreign corporation our courts will not take jurisdiction. Where, however, the act of the foreign corporation complained of affects the complainant's individual rights only, then our courts will take jurisdiction, whenever the cause of action arises here."

The defendant corporation is an assessment company. It has no capital stock, and he who takes out a policy of insurance in it be

comes a member of the body corporate, clothed with the rights and subject to the liabilities of a stockholder. He is at once insurer and insured. 2 May, Ins. § 548. His liabilities and his rights depend entirely upon the conditions and obligations of his membership. Those obligations and conditions are evidenced by his certificate of membership, the charter, constitution, and by-laws of the corporation, and the statutes of the state creating it. Nibl. Mut. Ben. Soc. § 136; 2 May, Ins. § 552; Bac. Ben. Soc. § 161.

The wrongs complained of by the appellant in his bill, briefly stated, are the imposition of illegal assessments upon him and other members of the association over 60 years of age; the adoption of a new plan of insurance without authority, the advantages of which are denied to him and those of his class; the unlawful action of the association in inducing by persuasion and threats the young members of the association to give up their old policies, and to take out policies under the new plan, thereby increasing the burdens of the appellant and the old members, and thus compelling them either to pay exorbitant assessments, or leave the association, and lose all that they have paid; and the fraudulent misappropriation of the assets of the association by its officers and agents. All these alleged acts of misconduct affect the appellant in his capacity as a member of the association.

The counsel of the appellant insists that by the terms of his policy of insurance it was agreed that the rate of assessment "should always be what they were at the time of insurance, to be raised in emergencies according to a scale applied to all in the same way," and that any change in the rates of assessment was a violation of his contractual rights.

If it were true, when the appellant became a member of the association, that he contracted with it that the rate of assessment should never be changed, we do not see how that could affect the question under consideration. The bill charges that the rates of assessment have been increased in violation of the appellant's rights. The question is not how those rights were acquired, but whether the violation of those rights affects him in his capacity as a member of the association, and do not affect merely his individual rights.

The appellant has rights which rest upon his contract of insurance, and not upon his contract of membership in the society (Nibl. Mut. Ben. Soc. § 136), and for a violation of those rights he is entitled to redress. The mere fact, as was said in Condon's Case, supra, that "he is a member of the corporation, does not prohibit him from asserting against the corporation any right arising out of his contract; but the character of the remedy invoked may measure the limits of the jurisdiction of the tribunal appealed to when the domicile of the corporation is considered. It is therefore entirely possible that a state of

facts which would authorize a court, in the exercise of its visitorial power, to inquire into the validity of acts affecting a policy holder when done by a corporation located within the jurisdiction of the court, would, as respects a foreign corporation, be wholly insufficient to confer upon the same court jurisdiction to act at all."

Not only are the acts complained of acts which relate to the internal management of the association, but the relief sought, if granted, would require the courts of this state to control and overhaul that management.

The first prayer is that the association be enjoined and restrained from taking any proceedings to have the appellant's certificate of membership or policy of insurance declared lapsed or forfeited. This prayer is based upon the allegation that the association had threatened to declare it forfeited if he did not pay what is charged to be an illegal and extortionate assessment.

If the court were of opinion that the assessment was invalid, how could it restrain and control the association at its home office in the state of New York, where the assessments were to be paid? It would have no power to enforce its restraining order if the association refused to obey it. It is clear that an injunction ought not to be granted which cannot be enforced. Condon v. Association, supra; Clark v. Same, supra.

Another prayer of the bill is that the association be required to exhibit its books, papers, and vouchers, and furnish a list of its policy holders, for the inspection of the appellant, in order that he might ascertain from them whether or not there had been any fraudulent misappropriation of the assets of the association by its officers and agents, and in order that the court could determine what would be a reasonable rate of assessment upon the appellant, and, when it had determined what would be a reasonable rate, to decree its payment, require the association to receive it, give receipts therefor, and to keep his policy alive, or to issue him one of its new policies. In order to grant such relief, it would be necessary for the court to investigate, overhaul, and control the management of the internal affairs of the association. It is manifest that the courts of no state other than that of the domicile of the foreign corporation ought to attempt to exercise any such power over it. To do so would render it dangerous, if not impossible, for a corporation to do business beyond the limits of the home state. Its books and papers might be required at the same time in the courts of many or all of the states in which it was doing business. Each of these courts, after overhauling its internal management, to see what would be a reasonable rate of assessment, might determine that question differently, thus leading to confusion and injustice in the administration of the internal affairs of the corporation. Courts, even if they had such power, would be slow to exert it when its exercise would lead to

such results, but would leave the parties to litigate their rights in the courts of the state under whose laws the corporation had been created, and where such matters could alone be properly settled.

In Mining Co. v. Fields, supra, the foundation of the complaint was that the foreign corporation had imposed an illegal and void assessment upon its stockholders, and had declared Fields' stock forfeited by reason of his nonpayment of the assessment upon him. The object of his suit was to compel the company to reinstate him as a stockholder on the books of the corporation, but the court refused to grant the relief, because to do so would be interfering with the management of the internal affairs of the foreign corporation.

In Clark's Case, supra, which was a bill filed against the appellee association by one of its members, as is this, and based largely upon the same allegations of fact, and seeking in the main the same character of relief, it was held that a court of equity of the District of Columbia had no jurisdiction to enjoin the association from enforcing or attempting to enforce certain assessments made upon one of its members and policy holders, or adjudge and decree as null and void certain changes and increase in the rate of assessment from the rate fixed in the certificate issued to him, or to determine what would be a proper rate of assessment upon its members, or to require a production of its books and papers for an accounting. This decision was based upon the ground that the acts complained of affected the plaintiff in his rights as a member of the association, and were the acts of the corporation performed in the administration of its corporate affairs.

In Condon's Case, supra, which was also a suit against the appellee association, brought by one of its members in behalf of himself and others similarly situated, the allegations of the bill and the relief sought were substantially the same as in the Clark Case, and a like conclusion was reached by the court of appeals of Maryland. Madden v. Light Co., 181 Pa. St. 617, 37 Atl. 817; Kansas & E. R. Const. Co. v. Topeka, S. & W. R. Co., 135 Mass. 34.

We are of opinion that the subject-matter of this suit is not within the jurisdiction of the courts of this state, and that the remedy sought is beyond their reach. The demurrer to the bill was therefore properly sustained. The counsel for appellant insists that, although this court may not be able to grant all the relief prayed for, it ought to construe appellant's contract with the association, and determine what his rights are under it, and thus render those questions res judicata. This contention cannot be sustained. The case made and the relief sought not being within the jurisdiction of the court, it has no power to construe the contract. Whenever a court determines that it has no jurisdiction of a case, it should express no opinion upon the merits of the controversy. The on

ly course which a court can rightfully pursue in such a case is to decline to speak at all where it cannot speak by the law.

We are of opinion that there is no error in the decree complained of, and it must be affirmed.

CARDWELL, J., absent.

(97 Va. 54)

NELSON et ux. v. TURNER et al. SAME v. MARYLAND LIFE INS. CO. et al. (Supreme Court of Appeals of Virginia. March 30, 1899.)

JUDGMENT LIENS-VENDOR AND PURCHASER
-EXECUTORY CONTRACTS-RESCIS-
SION-TRUST DEEDS.

1. A judgment creditor has no lien on land which his debtor has purchased under an executory contract of sale, where the contract is set aside because of misrepresentation by the vendor, or because of default of the debtor in making stipulated payments.

2. One having sold land under a deed to him in trust to secure a debt may apply the proceeds to the payment of the debt, rather than to relieve the lien of a judgment rendered prior to the execution of the trust deed.

3. A judgment creditor should subject the land last aliened by his debtor to the payment of his judgment, where several tracts of land have been alienated subsequent to its rendition.

Appeal from circuit court, Fauquier county. Separate suits by E. C. Turner and others and the Maryland Life Insurance Company and others against Joseph H. Nelson and wife to ascertain the liens on the land of defendant Joseph Nelson, in the order of their priority. From a decree for complainants in both suits, defendants appeal. Reversed.

In September, 1881, H. R. Garden, commissioner in the case of Ashby v. Green, obtained a decree against Joseph H. Nelson for $707.47, which was assigned to Mrs. Nelson, the wife of Joseph H. Nelson. September 7, 1882, defendants conveyed a part of the land in controversy to A. D. Payne, trustee, to secure a debt to plaintiff E. C. Turner, and on the same day conveyed another part to the same trustee to secure $1,000 due to Lewis Porter. The latter part was sold by the trustee to O. M. Hiner. The debt to Lewis Porter was paid from the proceeds, and $143.19 of surplus was paid to said Mrs. Nelson.

James V. Brooke and J. P. Jeffries, for appellants. Eppa Hunton, Jr., and Blackford, Horsley & Blackford, for appellees.

HARRISON, J. These causes were heard together in the court below. The principal question presented arises in the second suit, and involves the right of certain judgments against Joseph H. Nelson to rest as liens upon a tract of land held by him under the following circumstances:

By deed dated September 17, 1888, T. J. Packwood and Louisa, his wife, conveyed to Peter Wise the land in question, upon the following trusts:

(1) To permit Joseph H. Nelson to possess the same as if seised in fee, so long as he performed his covenants and paid to Packwood, or his wife, if she survived him, an annuity of $2,400, payable semiannually.

(2) Upon the death of both the grantors, to convey the land to Joseph H. Nelson, if he had performed his covenants.

(3) To reconvey the land to Packwood, or to his wife if she survive him, upon default of said Nelson, continuing for 10 days, in the payment of any semiannual installment of said annuity.

Joseph H. Nelson paid the annuity provided for in this deed until after the death of T. J. Packwood, which occurred in December, 1891, and filed his bill in March, 1893, against Louisa Packwood, charging that he had recently discovered that she had procured the contract on her part by fraud and misrepre sentation as to her age, which was alleged to be a most material representation in respect to such a contract, and praying that the contract might be rescinded, the deed set aside, and the parties placed in statu quo, by crediting him with such payments as he had made under the contract, and charging him with rents and profits during his occupancy.

To this bill Louisa Pack wood filed her answer, asking that it be treated as a cross bill, denying the charge of fraud and misrepresentation as to her age, and charging that Joseph H. Nelson was in default in paying the annuity provided for in the deed, and on that ground praying for a rescission of the contract, and that the trustee should be directed, in pursuance of the terms and conditions thereof, to reconvey the land to her.

On the 16th of November, 1893, the cause came on to be heard upon the pleadings, the depositions of witnesses, and exhibits; and by consent of parties the court entered a decree rescinding, setting aside, and annulling the contract and deed in question, and restoring the parties to their original status, by requiring Joseph H. Nelson and wife to unite with the trustee in a deed, with special warranty of title, reconveying the land to Louisa Packwood, upon the terms that she should pay back all moneys paid by Nelson under the contract, subject to a credit for the rents and profits of the land during his occupancy thereof.

The evidence taken in that case is not copied into the record before us. It is, however, to be presumed from the pleadings therein, and the character of the decree entered, that the fraud and misrepresentation charged in the bill were established; but it is immaterial whether the contract and deed were set aside and annulled because of the fraud of Mrs. Packwood, or on account of the default of Nelson in paying the annuity. The result is the same in either case. By the terms of the contract, Nelson was to have no interest in the land if he failed to pay the annuity. The effect of the decree rescinding the contract was to restore the parties to their orig

inal position, and, under such circumstances, judgments against Joseph H. Nelson could not attach as a lien to the land sought to be subjected.

The sole object of the last-named suit of Maryland Life Ins. Co. v. Nelson et al. being to subject the land in question, as the last aliened by Joseph H. Nelson, to the payment of the judgments against him, and that purpose having failed, for the reason stated,that said Nelson had no interest therein to which said judgments could attach as liens,there was no necessity to retain that cause longer on the docket, and it should have been dismissed.

It is further assigned as error that the proceeds of the sale made by A. D. Payne, trustee, under the deed given to secure a debt of $1,000 to Lewis Porter, were misapplied, in being appropriated to the payment of that debt instead of to the satisfaction of a prior lien, evidenced by a decree, in favor of H. R. Garden, commissioner; it being contended that the estate of A. D. Payne, trustee, and the estate of Lewis Porter should be made to account for the proceeds of that sale, so far as the Porter debt was discharged thereby.

There is no merit in this contention. The deed of trust to secure Lewis Porter was executed several years before this suit was instituted by a sale of the land mentioned therein to O. M. Hiner, and nearly the whole of the purchase money was paid at the time, and properly applied in paying the costs of executing the trust, and satisfying the debt which the deed was given to secure. A. D. Payne died before this suit was brought, and his executrix was made a party for the purpose of having a settlement of his accounts as trustee. That settlement showed a balance in the hands of the executrix of $143.19, which was directed by the decree complained of to be applied to the H. R. Garden lien. The trustee faithfully executed the trust reposed in him, and properly disbursed the fund that came to his hands, and we fail to perceive upon what principle his estate can be held responsible for the decree in favor of H. R. Garden.

Whether or not the land bought by O. M. Hiner from A. D. Payne, trustee, will have to contribute anything towards the payment of the lien in favor of H. R. Garden, cannot be determined until the land primarily bound for that lien is sold. It is conceded that the decree in favor of H. R. Garden is the first lien on all the land of Joseph H. Nelson. The report of the master commissioner shows that the land aliened after that which was conveyed to secure the debts to Lewis Porter is ample to satisfy the general lien; and, the land last aliened being the primary security therefor, it was proper to sell it before proceeding against the land of O. M. Hiner, which would, according to the commissioner's report, never become liable.

For these reasons the decree appealed from must be reversed, and the cause remanded

for further proceedings to be had therein in accordance with the views expressed in this opinion.

(107 Ga. 713)

SEALS v. STATE.

(Supreme Court of Georgia.

May 30, 1899.) CRIMINAL LAW-ARREST OF JUDGMENT-VARIANCE LARCENY-MISDEMEANOR. Where one has been convicted, in a court having criminal jurisdiction of misdemeanors only, under an accusation charging her with larceny from the house by stealing therefrom certain specified goods, under the value of $50, there was no error in overruling her motion in arrest of judgment based on the fact that the proof on the trial showed that the owner of the stolen goods lost others, not mentioned in the accusation, which, added to those described in the accusation, would amount to more than $50 in value. Even if a motion in arrest of judgment were the remedy in any criminal case founded upon a variance between the allegations and the proof, it was properly overruled in this case, for the reason that the evidence failed to show that all the goods lost were stolen at the same time, and it further appeared that the conviction of the accused was founded on her possession of stolen goods amounting in value to less than $50.

(Syllabus by the Court.)

Error from criminal court of Atlanta; A. E. Calhoun, Judge.

Lula Seals was convicted of larceny, and brings error. Affirmed.

S. C. Crane and J. L. Cobb, for plaintiff in error. J. F. O'Neill, Sol., for the State.

away

LEWIS, J. An accusation was framed in the criminal court of Atlanta against Lula Seals, William Seals, and Ella Rhodes, charging them with the offense of larceny from the house, by taking and carrying therefrom, with intent to steal the same, certain specified articles, of the value of $29. Lula Seals was placed on trial upon this charge, and was found guilty, whereupon she made a motion in arrest of judgment on the ground that the offense committed was shown by the testimony to be that of a felony, and the criminal court of Atlanta had no jurisdiction over the offense. From her motion it appears that the evidence showed that she had been an employé of the owner of the house for about eight weeks. The property was missed by the owner two days after she left this employment. It consisted of different articles taken from different portions of the house. The aggregate value of the property stolen was $60, but the owner recovered from the defendant only $39 worth of it, including the articles described in the accusation. To the judgment of the court overruling this motion in arrest of judgment, plaintiff in error excepts.

We question very much whether, in any event, a motion in arrest of judgment is the remedy to correct an alleged error of this character. As a rule of law, a motion in ar

rest of judgment can be sustained only upon such cause as is apparent upon the face of the record. See Terrell v. State, 9 Ga. 58; Reinhart v. State, 29 Ga. 522. We know of no principle which would bring this case within any exception to that rule, if any exception exists. When this motion was made, no defect appeared upon the face of the record in the case. We do not think that the evidence which was introduced on the trial could be considered as a part of the record, especially in view of the fact that the accused was put on trial for a misdemeanor, in which class of cases it is not required that the evidence shall be written down as delivered. In such a case the testimony becomes a part of the record only when approved by the court and ordered filed as such, and then usually only for purposes of a motion for a new trial. This is simply a case of an alleged material variation between the allegations and proof in a criminal case, and we cannot see why a motion for a new trial was not the remedy. But, apart from the above views, there can be no question about the correctness of the judgment overruling this motion, under the facts it states. It will be observed that there appeared no proof whatever that all the property lost by the owner was stolen at the same time. If such had been the case, recent possession of a portion of the stolen goods, unexplained, would have been sufficient to authorize the conclusion that the party in possession thereof was guilty of the entire larceny; but, these goods being taken from different portions of the house, it is, to say the least, a legitimate inference that they were stolen at different times, and, if so, of course each theft there was a separate offense. The conviction was founded on the possession of only a portion of the goods, of less value than $50, and we think the testimony clearly authorized a legal conviction for the misdemeanor charged. Judgment affirmed. All the justices concurring.

(108 Ga. 775)

CLARK v. STATE. (Supreme Court of Georgia. May 30, 1899.) CRIMINAL LAW-REVIEW ON APPEAL.

No error was committed in the admission of evidence, the evidence warranted the verdict, and the court below did not err in overruling the certiorari.

(Syllabus by the Court.)

Error from superior court, Sumter county; Z. A. Littlejohn, Judge.

Nelse Clark was convicted of crime, and brings error. Affirmed.

Blalock & Cobb, for plaintiff in error. F. A. Hooper, Sol. Gen., for the State.

PER CURIAM. Judgment affirmed.