defeat the ends of law by looking only to the letter of Lord Eldon's dicta. Moreover the remarks of the court on the subject of equitable protection of interests of personality 105 are admirable and will undoubtedly exert a wholesome influence.

III

PROTECTION OF SOCIAL AND POLITICAL RELATIONS

The same questions are presented in another form in cases of wrongful expulsion from social clubs or interference with the exercise of political rights. Suppose, for example, a member is wrongfully expelled from a trade union and sues to enjoin the governing authorities from excluding him. What right does he seek to secure? It may be that the union owns funds or property and (supposing it to be unincorporated) he may be co-owner or co-beneficiary and so be excluded unlawfully from his share in the property. Or it may be that he can obtain work or can exercise his trade or calling only provided he is in good standing in the union, so that if he is wrongfully expelled, the practical effect is to exclude him from exercising the trade on which he depends for a livelihood. It is not easy to differentiate such a case from the injury to the credit and financial standing of a business man, e. g., in Dixon v. Holden. Power to work is the chief asset of the laborer as credit is the chief asset of the business man. Again it may be that the club or association is merely social and that no share in any property and no added power of pursuing one's vocation is involved in belonging thereto. In that event, if one is wrongfully expelled, there is a humiliation, an indignity, akin to violation of privacy and akin to defamation. Expulsion from a club may, indeed, be the highest form of injury without involving any interest of substance in the least.

According to the prevailing doctrine in the authorities, there is a remedy only in the first case.106 In case the club or association has funds or property, even if plaintiff's interest in the common property from which he is excluded is as insignificant as the "little diachylon"

105 72 N. J. Eq., 919, 921-23, 924-25.

106 In Rigby v. Connol, 14 Ch. D. 482, Jessel, M. R., says:

"I have no doubt whatever that the foundation of the jurisdiction is the right of property vested in the member of the society, and of which he is unjustly deprived by such unlawful expulsion. There is no such jurisdiction that I am aware of reposed, in this country at least, in any of the Queen's Courts to decide upon the rights of persons to associate together when the association possesses no property." See Mesisco v. Giuliana,

for which Lord Holt was willing to award damages, equity will interfere nominally to protect the property right, but in truth and in substance to protect the interest in personality against wrongful and malicious injury. This is the same doctrine that we have seen in Gee v. Pritchard and Vanderbilt v. Mitchell. But in cases where there is no property we are told that equity will not interfere, although in the second of the three cases put there may be a very serious economic injury and in the third case a very serious injury to personality.

It is worth while to note how this conclusion is justified. Sir George Jessel tells us that in case of a voluntary association of individuals without property the court cannot compel persons to associate together if they do not so desire; that a court can assure to a plaintiff participation in the use of property but it cannot secure him in purely social relations. Accordingly Sir George Jessel compares the case to a contract of personal service, where the court cannot coerce the promised personal performance. In other words, plaintiff may have the right, but there is a practical difficulty in enforcing it and so, in so far as it can act at all, equity turns to the indirect method of enforcing some property right, in order to furnish a "technical basis of jurisdiction," just as in the personal service cases relief that in effect coerces performance of the affirmative is tacked to jurisdiction to enforce a negative. Undoubtedly there is much force in the point as to the difficulty of enforcing the rights of a member threatened with wrongful expulsion from an unincorporated association. But these and other difficulties vanish when the "technical basis" of a scintilla of common property is afforded. For there is a real danger that, in exercising the jurisdiction where property is involved, the courts may come to sit on appeal from the committees and meetings of clubs and review their action as they review the acts of inferior judicial or administra190 Mass. 352, 76 N. E. 907; Froelich v. Musicians' Mut. Ben. Co., 93 Mo. App. 383; Allee v. James, 68 Misc. 141, 123 N. Y. Supp. 581; Smith v. Hollis, 33 Weekly Notes Cas. (Pa.) 485; Robertson v. Walker, 62 Tenn. 316; Gaines v. Farmer, 55 Tex. Civ. App. 601, 119 S. W. 874. That the interest is really one of personality is shown by the remarks of Jessel, M. R., in Fisher v. Keane, 11 Ch. D. 353: "The character and prospects in life of any member of this club may be irremediably blasted for that is the result - by the decision of any three casual members of the committee who happen to walk in on a week-day, having no notice of what is about to be brought before them, but merely with the intention probably of auditing the cook's accounts, or attending to some equally trivial matter."

tive tribunals.107 Moreover there is no insuperable obstacle to effective securing of a plaintiff's right not to be injured wilfully in his sensibilities by a wrongful expulsion from a club that owns no property. It is not necessary to order the defendants to associate with the plaintiff. If they desire to abandon or to dissolve the club, they may be left free to do so. But they might be enjoined from wrongfully and maliciously excluding the plaintiff so long as they keep it

up. 108

Courts are by no means unconscious of what they are really protecting in these cases of wrongful expulsion. This is shown strikingly in Baird v. Wells.109 In that case the club had no property whatever, and there was no possibility of resting relief to plaintiff, who had been wrongfully expelled, upon any "technical basis" of injury to property rights. Accordingly the court denied an injunction on the ground that the injury was solely to personality and hence was not cognizable in equity. But while the court professed to deny all relief and to leave the pure interest of personality unsecured, in reality it took a very ingenious way of securing the interest. Knowing all the while that under the doctrine it announces the court was without jurisdiction, it found means to evade the difficulty by first examining whether plaintiff was rightfully expelled. Then, when it had found that he was wrongfully expelled and had vindicated his character by its finding, it went on to show that no relief could be given to him. In other words, plaintiff was given the very thing he really wanted although it was solemnly explained to him that the court had no jurisdiction and could do nothing to help him.110

107 See the remarks of Brett, L. J., in Dawkins v. Antrobus, 17 Ch. D. 615. This is especially manifest in the English decisions which review the rules of an association with reference to the demands of "natural justice." Cf. Harris v. Aiken, 76 Kan. 516, 92 Pac. 537 (semble); Loubat v. Leroy, 40 Hun (N. Y.) 546; People v. Hoboken Turtle Club, 60 Hun (N. Y.) 576; People v. Uptown Ass'n, 9 App. Div. 191, 41 N. Y. Supp. 154; People v. Independent Dock Builders' Benevolent Union, 164 App. Div. 267, 149 N. Y. Supp. 771 (semble); Williamson v. Randolph, 48 Misc. 96, 96 N. Y. Supp. 644; Bachman v. Harrington, 52 Misc. 26, 102 N. Y. Supp. 406; Grassi Bros. Co. v. O'Rourke, 89 Misc. 234, 153 N. Y. Supp. 493; Metropolitan Base Ball Ass'n v. Simmons, 17 Phila. 419. 108 Cf. the decree in Hood v. Northeastern R. Co., L. R. 8 Eq. 666. 109 44 Ch. D. 661.

110 The plaintiff having appealed from the order denying an injunction, the following proceeding took place in the Court of Appeal:

"1890. April 23. Sir Horace Davey, Q. C. (Sir C. Russell, Q. C., and Ernest de Witt, with him), appeared for the appellant, and stated that, as the judgment of Mr. Jus

Some American courts have secured the rights of the member threatened with wrongful expulsion from his club by resorting to a theory of contract. The doctrine of these courts is that the constitution and rules of a voluntary association constitute a contract between the members and that equity may enjoin any injurious breach of the contract such as expulsion contrary to the rules. As the courts of New York are committed to the doctrine that equity will not secure personality as such, but only property, it is a convenient mode of evading the difficulty to hold that the "contract of membership" is an asset which may be protected in equity. This enables relief to be given in a case like Baird v. Wells, where the club has no property and yet there is a serious injury to personality. But the theory is open to serious objection, apart from the questionable use of the idea of contract which it involves. If the basis of relief is breach of contract and the constitution and rules of the club or association are the contract, any breach of the rules that injures the plaintiff seriously may be enjoined and so the courts may be called on to enforce the rights of members of fraternal orders where, if we look at the real interest involved and weigh the difficulties we must feel that relief should be denied.112 Again, if the basis of relief is breach of contract and the constitution and rules of a voluntary association give the terms of the "contract of membership, "the interpretation of the written contract is for the court. Thus a court of equity is to be the final interpreter of the laws and rules of all voluntary associations, clubs, and fraternal orders. This tice Stirling had been in favour of the Plaintiff as regarded the irregularity of the proceedings of the Defendants, the Plaintiff had no wish to continue in the club, and would now assent to an order dismissing the appeal with costs."

"Order made accordingly."

In other words, the plaintiff appealed simply for the opportunity of saying publicly that the lower court had given him the substance of a victory although depriving him of the form.

111 Krause v. Sander, 66 Misc. 601, 122 N. Y. Supp. 54; Lawson v. Hewell, 118 Cal. 613, 50 Pac. 763.

112 For example, in such a case as Wellenvoss v. Grand Lodge, 103 Ky. 415, 45 S. W. 360, where plaintiff sought an injunction against wrongfully excluding him from participation in the proceedings of the Grand Lodge, the real injury was to his dignity, to his pride, and his feelings. The chancellor might well ask, is this injury serious enough to warrant the extraordinary interposition of equity? Is it serious enough to warrant the expense and the consumption of public time involved in a judicial proceeding? Is it serious enough to balance the practical difficulty involved in the court's endeavor to learn, interpret, and apply the laws and customs of a fraternal order? See Hershiser v. Williams, 6 Ohio Cir. Ct. R. 147.

is neither intrinsically desirable nor expedient from the standpoint of dispatch of public business in the courts.113 The advantage of the contract doctrine is that it enables the courts to deal more straightforwardly with such cases as Baird v. Wells. But the same result may be attained in a better way by recognizing that we are protecting interests of personality and by treating the cases on the ordinary principles of the concurrent jurisdiction.

It remains to notice a line of cases in which equitable relief has been sought against wrongful denial of political rights.114 In these cases there was no tort, and hence there was no question of concurrent jurisdiction. But they repeat the dictum in Gee v. Pritchard and also assert that only civil, as distinguished from political, rights are taken into account in equity. If there is a tort, as in Ashby v. White,115 it is because there is a civil right, cognizable in courts of justice, and the circumstance that it is a civil right to exercise one's faculties politically cannot change the situation. The real difficulties are (1) that the injury is usually to feelings, sensibilities, and dignity, and (2) that a court of equity is practically embarrassed in administering a remedy by the danger of undertaking an impossible task.116

113 The California court which was the first to announce this contract doctrine deals with the point rather ingeniously. It says that only procedural rules are to be inquired into; that is, the constitution or rules providing the machinery of investigation and expulsion are part of the contract, but it is a part of the contract that the member will abide the determination of the tribunal of the organization as to interpretation of the constitution and rules. In other words, the contract provides that these third parties shall fix the interpretation of the terms of the contract in a binding way. Hence it is said all the court can try is, first, whether investigation or trial has taken place in the appointed way or by the appointed tribunal, and, second, whether the interpretation has been made and applied in good faith. Lawson v. Hewell, 118 Cal. 613, 50 Pac. 763. This is very like the English doctrine that there must be no interpretation on the part of the tribunal of the association which makes the rule or proceeding contrary to natural justice. This proposition, however, has interesting possibilities. Suppose one is a member of a religious association and by the discipline of the association a prophet, or bishop, or spiritual head has power to excommunicate on the basis of revelations from on high. Review of an excommunication as contrary to natural justice under such circumstances might involve delicate questions.

114 Fletcher . Tuttle, 151 Ill. 41, 37 N. E. 683; Kearns v. Howley, 188 Pa. 116, 41 Atl. 273; Giles v. Harris, 189 U. S. 475; Green v. Mills, 69 Fed. 852; State v. Aloe, 152 Mo. 466, 54 S. W. 494; Winnett v. Adams, 71 Neb. 817, 99 N. W. 681. That no tort is involved in such cases as Fletcher v. Tuttle, see 2 COOLEY, TORTS, 3 ed. 626 ff. 115 2 Ld. Raym. 938, 950.

110 This is well put in Winnett v. Adams, 71 Neb. 817, 825, 99 N. W. 681: “We do not overlook the fact that primary elections have become the subject of legislative regu