pas pratiquer un conseil evangelique parle violement d'un précepte, tel qu'est celui de l'obeissance a ses parens, qui nous est prescripte par le quatrieme commandement de Dieu. D'ailleurs, la profession religieuse, quoique bonne et utile en soi, ne convient pas neanmoins a tout le monde; tous ne sont pas appele a cet etat. Or les pere et mere sont presumes etre plus en etat de juger si leurs enfants sont appeles a cet etat que leurs enfants, qui n'etant point encore parvenus a la maturité de l'age, ne sont pas encore capables de juger par eux memes de l'etat qui (Voyez les Capit de Charle

leur convient.

magne, liv. I., ch. 5.)"

dispose of the custody of the child and con- il suit qu'un enfant soumis a la puissance clude this controversy. It would be an idle paternelle ne peut entrer dans aucun etat, se ceremony for the court to try a cause with- faire novice, faire profession religieuse, conout making a decision by which the fruits of tre le consentment de ses pere et mere, sous the litigation could be reaped. We have a la puissance desquels il est. Cela a été juge multitude of precedents for our guidance in contre les jesuites au profit de M. Airault, this particular." In Re M'Dowle, 8 Johns. lieutenant-general d'Angers, par arret de 328, the court ordered the boys to "be de- 1587, contre les feuillans, par arret de 10 livered to their master, and directed an of- aout, 1C01, contre les capucins, au profit du ficer to attend and protect them in their president Ripault, par arret du 24 mars, return." In People ex rel. Barry v. Mercein, | 1604. Ces arrets sont fondes en grande rais3 Hill, 399, the opinion of the court is ex- on. L'etat religieux n'est que de conseil pressed in these words: "An order must, evangelique or il est evident qu'on ne peut therefore, be entered that the child be delivered to the relator." In People ex rel. Nickerson v. — 19 Wend. 16, the court made an order that "the child be delivered to the father, and that the care and custody of her be committed to him." In Re Goodenough, 19 Wis. 274, a similar doctrine is announced. In Ex parte Williams, 11 Rich. L. 459, this pertinent expression of opinion occurs: "A judge would greatly mislead, and might seriously injure, a youth of fifteen, by telling him that he was free to go where he pleased, if room was left for the misconstruction that he was not bound to obey his father." The decisions of this court are very well summarized and expressed by an excellent author in the following language, to wit: "The term 'imprisonment' usually imports a restraint contrary to the wishes of the prisoner, and the writ of habeas corpus was designed as a remedy for him, to be invoked at his instance, to set him at liberty; not to change his keeper. But, in the case of infants, an unauthorized absence from the legal custody has been treated, at least for the purpose of allowing the writ to issue, as equivalent to imprisonment, and the duty of returning to such custody as equivalent It has been held that the writ may not only issue without privity of the child, but against its ex: press wishes. To confine the writ of habeas corpus exclusively to cases of illegal confinement would be destructive of the ends of justice. I apprehend it is not going too far to say that the interests and welfare of society require that, under peculiar circumstances, the fact that the child of tender years is detained improperly It is therefore ordered and decreed that from the person entitled to its possession is the judgment appealed from be annulled and sufficient ground to maintain the writ of ha- reversed; and it is further oruered and debeas corpus." Hurd, Habeas Corpus, p. 454. creed that the writ of habeas corpus be reinMuch to the same effect is the French juris- stated and maintained. It is further orprudence, as will appear from the following dered and decreed that the relatrix, Mrs. quotation from a treatise of Pothier, to wit: Adelina Prieto, have the custody and control Pothier, in his Traité des Donations des Per- of her daughter, Maria Theresa Prieto; she sonnes et des Choses, vol. 13, pages 429, 430, being yet a minor, and incapable of selecting referring to that feature of the paternal and establishing a domicil of her own choice power which confers upon parents the right against the will and consent of her mother. to govern with authority (gouverner avec It is further ordered and decreed that the reautorité) the persons of their children until spondent, St. Alphonsus Convent of Mercy, they should have reached the age to govern through its reverend mother superior, perthemselves, says: "De la premiere partie mit and allow the relatrix to have the cusde la puissance paternelle, n'ait le droit qu'- tody and exercise control over said Maria ont les pere et mere de retenir leurs enfants Theresa Prieto, without exercising any reaupres d'eux ou de les renvoyer dans tel col-straint over her or making any opposition lege ou autre endroit ils jugent a propos thereto. It is further ordered that all costs de les renvoyer pour leur education. De la be taxed against respondent and appellee.

to a wish to be free.

The foregoing are a few of the pertinent opinions expressed by courts of other states on the question at issue; and very many others of like import might, with perfect propriety, be cited, though we do not deem it necessary. Those quoted, in our opinion, are in keeping with the provisions of the Code of Practice which have been cited, as well as the provisions of the Constitution, and the decisions of this court. Altogether, they constitute a complete consensus of judicial opinion on the subject, which is at once authoritative and controlling. Consequently, we are of the opinion that habeas corpus is the appropriate remedy, and that the rela trix has brought her case clearly within the principles announced, and that she is entitled to the relief she demands. For the foregoing reasons, we are of the opinion that the judgment appealed from is erroneous, and must be reversed.

Breaux, J., dissenting:

ance and remaining with him. The father I dissent, for the reason that, in my is told by the master that the son is free to opinion, the young lady who is the subject do as he pleases,-return if he chooses,— of this litigation is not in the custody of any-but that, if he remains, he will find work and one. The law of habeas corpus is intended shelter for him. This is disappointing to to go to the relief only of those in the cus- the father, and he sues out a writ of habeas tody of someone, restrained in some way, or corpus. In answer, the one who has become deprived of his liberty. I do not understand devoted to the son, and sympathizes with his that this is the case here. This young lady, views and wishes, now made defendant in a in her eighteenth year, chose to seek a home proceeding by way of habeas corpus, appears in a convent where she was a pupil. It was in court, and relates the facts to the judge, her own act in carrying out her will, and for corroborated by the son. He claims nothwhich she alone is to blame, if blame is to be ing, and says to the court that, whatever it imputed to anyone. After she retired to the may be, the law must be obeyed, and he deconvent to make it her permanent home, the sires the court to inform all the parties of evidence shows, as I read it, that she was al- the rights of the son. From the court's acways free to leave. This is her solemn dec- tion, in response to this request, an appeal laration under oath, corroborated by the re- is taken. There being no tie of any kind be spondent and those who were with her at the tween the one made respondent and the son, convent. In all the articles of the Code of save that of sympathy and good will, which Practice, "custody" and "restraint" of the one good man will nearly always feel for anperson is the moving cause in issuing the other, there would scarcely be a decision writ. Thus, in the first article on the sub- found anywhere under which the respondent ject, the "habeas corpus" is defined as an or- could be condemned to deliver him over to a der in writing directed to a person "who has relator in a habeas corpus case. May it not another in his custody." The petition for be that, after admonishing the son of the the writ "shall state, in substance, that the necessity of respecting the wishes of his party applying is imprisoned or deprived of father in a proper case, he might be, in subliberty, and by whom" (Code Pr. art. 795), stance, told by the court that, although not "if the imprisonment or detention has not quite of age, the court none the less recogbeen made by virtue of a judicial order." nizes that he has some rights which the court "The person on whom a habeas corpus is will respect; that he must go to his father, served shall declare positively in his answer and respect his wishes, but that he will not whether he has or has not in his power or be sent there under the writ of habeas corcustody the person to be set at liberty." If pus, as the court does not find that his liberMiss Prieto is entirely free, the respondent, ty of action has not been respected. My as I view these articles, does not come with- only purpose is to illustrate that the writ in their grasp. The respondent obeyed the of habeas corpus is not intended to reach or writ, appeared in court, and disclaimed all prevent the kindly influences which exist restraining power over the young lady. The among men, even when an inoffensive error creed of this young lady has naught to do of judgment has been committed. It is not with the case. She stands before the court my opinion that one cannot be condemned as anyone else would stand whom the mother to deliver another under the writ of habeas thinks is improperly influenced, and the ex- corpus save when he has him under actual tent of the mother's authority is no greater restraint. I did not find that to be the case and no less than her authority would be re- here. In my view of the different questions, gardless of all creed or religious belief. The I do not pretend for an instant that I may question, considered from a point of view not be mistaken. Long meditation and entirely secular and civil, does not, in my study have been devoted to these questions. opinion, differ very much from the one pre- Many decisions have been written on the subsented in this case. May I not to some ex- ject, and many views expressed. Under the tent, at least, illustrate by the following: civil-law system, I find that greater power Let us suppose that a difference has arisen is given to parents over their children, and between a wealthy and devoted father and that the state is somewhat prone to impose the son, who desires to become a skilful its authority, in order to vindicate that workman or expert mechanic, an idea with power. In the ancient world, during classic which the father does not at all sympathize. days, the control of the father over his chilThe son in his nineteenth year, unwilling to dren was unlimited. Those who, like Polead a life of leisure, calls on one skilled in thier, borrowed much from the pandects and one of the practical arts or other attractive other ancient law, have readily recognized occupation, and soon improves in the trade the authority of the state to intervene, and or occupation he has selected. An honor- bring its strong arm to bear to coerce obediable friendship springs up between the mas-ence. These principles were afterwards ter and the subordinate in the art. One be- made part of the Code Napoleon. They are comes quite partial to the other. The spe- not all copied in our Code. There is a difcial teacher was told by the son, in the first ference on this subject in the articles of the interview, that he came after having obtained the consent of the father, but the father soon appears upon the scene, and informs the honorable friend of his son that he objects to his son working under his guid

two Codes quite evident on reading and comparing the different articles. Under the common-law system, the authority of the state, as I take it, is not so easily invoked in the interest of complaining parents. More

rights, properly, I think, are conceded to views regarding the legal aspect of the case. the child who is capable of reasoning for The question is one of interpretation. Difhimself as if of age. The common-law sys-fering from my colleagues as relates to the tem, it does appear to me, is more in accord-interpretation to be placed on the law, I do ance with the spirit of the age on this point. not claim any conscientiousness and sincerI do not understand that the common-law ity of purpose which I do not readily condecisions are favorable to the interposition of cede to the majority of the court. state interference, under the writ of

NORTHWESTERN MUTUAL RELIEF AS-ty in favor of plaintiff in an action brought

NOTE.-Conflict between by-laws and certificate, | law with reference to the time of payment, alor policy, of a mutual benefit society or insur-luding to the fact that the articles of associaance company.

of the assessment paid by such member." The trial court found facts in accordance with the foregoing. Also, in effect: That the articles of organization of the defendant, when the certificate was issued, provided that members should be entitled to receive benefits upon such terms and subject to such regulations as prescribed by the board of directors or the executive committee. That, until January 15, 1890, there was no bylaw or regulation of the defendant adopted in accordance with such articles, or at all, authorizing the issuance of a certificate with the provision against liability in case of death by suicide or self-destruction. That by the by-laws and regulations existing prior to the date mentioned, all certificates were payable absolutely upon maturity, by death, whether caused by suicide or otherwise, and that the form of application and certificate used by the association up to February 7, 1889, was in accordance therewith, after which date, by the secretary of the association, without authority of the board of directors, a provision was inserted in the applications and indorsed on the back of the certificates used, similar to the provisions in the application and on the back of the certif icate in question, limiting mortuary benefits to cases of death from causes other than suicile or self-destruction. That in November, 1889, notice was sent to the members of the association, including the deceased, of a proposed amendment to the by-laws, providing against be prescribed by the board of directors or the executive committee; that at the time the certificate in question was issued there was no bylaw or regulation authorizing the issuance of a certificate with a provision against liability in case of suicide; and that such provision was in

in all $2,000. The only method or remedy by which plaintiff can enforce her rights as beneficiary is by an action in equity to compel the association to comply with the terms of the certificate by making an assessment upon its members, and paying the proceeds thereof to her, not exceeding in all $2,000. Plaintiff's claim was duly proved under the rules and regulations of the association and the terms of the certificate, and, after the termination of the period within which defendant was required to levy the assessment, it having neglected and refused so to do, on the ground that the assured came to his death by suicide, this action was brought. The application made by the assured for membership in the association, upon which the certificate was issued, contained the following: "I hereby agree that the association assumes no liability in case of suicide or self-destruction, and that the certificate of membership shall contain the usual terms, conditions, and regulations. ..." Indorsed on the back of the certificate, and made a part of the contract of insurance, was the following: "(1) Suicide or selfdestruction of the member herein named, whether voluntary or involuntary, sane or insane, at the time thereof, is not a risk assumed by this association. (2) Neither the member nor the association shall be liable upon the certificate for any suicide or self-destruction or for a greater amount than eighty per cent N. J. Eq. 224, 14 Atl. 278, 10 Atl. 106, held that insured in a policy issued by a mutual fire insurance company subject to "constitution, bylaws, and conditions," was entitled to have his policy reformed so as to be subject only to the by-laws annexed thereto, where at the end of the policy, under the words "conditions of inserted by the secretary, without the authority surance," certain by-laws, not including the one relied upon by the company as a defense, were annexed.

Barbot v. Mutual Reserve Fund Life Asso. 100 Ga. 681, 28 S. E. 498, is not opposed to the doctrine of the foregoing cases, but merely gives the constitution and by-laws effect in construing the certificate. In that case the constitution and by-laws provided for assessments sufficient to meet existing claims. There was attached to the certificate an "assessment rate table," which, after providing that each survivor should pay for each $1,000 of the amount of his certificate "as follows," purported to give the amounts (termed rates) on $1,000 for different ages. The court held, in view of the constitution and by-laws, that it was not the purpose of the table to fix a limitation upon the amount of the gross assessment, but only to furnish a guide, after such gross amount had been ascertained, for its equitable and fair apportionment among the members according to their relative ages.

It is apparent from the foregoing that the adjudged cases sustain the general rule laid down by the court in the principal case, viz., that the certificate, if within the power of the association under its charter or articles of organization, will prevail over by-laws inconsistent with it; but the opinion does not make it clear why the case does not fall within the exception to the rule. It will be observed, from the statement of facts preceding the opinion, that the articles of organization provided that members should be entitled to receive benefits upon such terms and subject to such regulations as should

of the board of directors, in the applications and certificates used at the time the certificate in question was issued. The implication seems to be, although it is not expressly so stated, that the act of the secretary was without the authority of the executive committee. It would therefore seem that the insertion of the provision in question was not authorized by the arti cles of association.

It may be that the issuance of the certificate was regarded as the act of the board of directors or executive committee, and therefore as a compliance with the provision of the articles of association, since it does not require the terms and regulations to be prescribed in by-laws or in any other particular form.

Moreover, the provision of the certificate as to suicide was manifestly for the benefit of the association, and for that reason the provision of the articles of association for "benefits on such terms and subject to such regulations as prescribed by the board of directors or the executive committee" may have been deemed inapplicable. That is to say, this restriction may be deemed to be for the protection of the associa tion alone. If so, it would prohibit the insertion of unauthorized stipulations which would increase the liability of the association, but would not prohibit its officers from inserting any stipulations that might further protect the association. This seems to be a reasonable interpretation of the articles, and may well be the ground on which the court sustained the stipulation against suicide, though the association had not authorized it by any by-law or regulation. G. H. P.

are therefore void, and form no part of the contract.

The contract set out in the by-laws was the only authorized contract for mortuary benefits to be paid by the defendant, in force when this certificate was issued; and such contract, containing no exception in case of suicide, bound the defendant in that case the same as if death ensued in any other way.

Cooke, Life Ins. § 41; Darrow v. Family Fund. Soc. 116 N. Y. 537, 6 L. R. A. 495, 22

The directors have no authority to disregard the by-laws.

Niblack, Ben. Soc. p. 196.
These interpolations are void for two rea·

For want of authority on the part of the officers to insert them in the contract.

liability in case of death by suicide or selfdestruction; and on the 15th day of January, 1890, pursuant to such notice, such an amendment was duly adopted, and it was provided that all certificates issued prior to January 25, 1890, should be known as "Old Series," and those issued after January 24, 1890, should be known as "New Series." A new provision was made in regard to the classification of certificates and in regard to assessments, applicable only to the new series; and it was further provided that mem-N. E. 1093; Niblack, Ben. Soc. last ed. § 156; bers holding old series certificates should be | Mills v. Rebstock, 29 Minn. 380, 13 N. W. assessed according to the old by-laws, though| 162. such holders might exchange such certificates for certificates of the new series. That on the 9th day of January, 1890, accompanied by a notice of an assessment, the deceased received a communication from the defend-sons: ant in the form of a circular letter addressed to each member of the association, to the effect that after January 21, 1890, a new forin of certificate would be issued, containing advantages over the old form, in that, among other things, there would no longer be any liability in case of death by suicide; and thereafter, July 11, 1892, he received another circular letter, calling attention to the new regulations, and urging the exchange of the old for the new certificates, because of the exemption from liability in case of suicide. That prior to the death of the assured he paid eighteen assessments in consequence of the death of members, two of which were by suicide, one of such being November 30, 1890, and the other April 29, 1891, and in each case notice of the assessment was given, together with notice of the cause of death. If the secretary may interpolate a proviThe court found, as conclusions of law, in sion into the contract between the associaeffect, that the provisions in the application tion and its members for any purpose, the and on the back of the certificate in regard provision here inserted, limiting the liability to liability in case of death by suicide, were of the association in case of the suicide of not in accordance with the by-laws of the de- the holder of a certificate, is invalid because fendant existing at the time such certificate it destroys the equality of rights and liabiliwas issued, and therefore they formed no ties between certificate holders, which is the part of the contract of insurance; that de-essential principle of mutual insurance. fendant had repeatedly shown that it so in- MacKinnon v. Mutual F. Ins. Co. 83 Wis. terpreted the contract by assessing the as-12, 53 N. W. 19; Davis v. Parcher & J. & A. sured upon his certificate to pay death losses caused by suicide, and that defendant had waived any right to insist on such provisions by repeatedly assessing the assured for his full proportion of losses which accrued to the association on account of the death of mem

bers by suicide. Exceptions were taken on the part of defendant necessary to raise the questions here considered. Judgment was rendered in plaintiff's favor in accordance with the conclusions of the trial court, and from such judgment this appeal was taken.

Mr. N. W. Chynoweth for appellant. Messrs. Orton & Osborn and Wilson & Martin, for respondent:

The defendant is liable notwithstanding William McCoy, the insured, died by his own hand.

The stipulations to the contrary are interpolations placed there by the secretary and manager without any authority whatever, and contrary to the by-laws of the association and its articles of incorporation, and

Niblack, Ben. Soc. last ed. § 97; McCoy v. Roman Catholic Mut. Ins. Co. 152 Mass. 272, 25 N. E. 289; Evans v. Trimountain Mut. F. Ins. Co. 9 Allen, 329; Swett v. Citizens' Mut. Relief Soc. 78 Me. 541, 7 Atl. 394; Hirsch v. United States Grand Lodge, O. of B. A. 56 Mo. App. 101; Hall v. Merrill, 47 Minn. 260, 49 N. W. 980; Covenant Mut. Ben. Asso. v. Spies, 114 Ill. 463, 2 N. E. 482; Metropolitan Safety Fund Acci. Asso. v. Windover, 137 Ill. 417, 27 N. E. 538; Cooke, Life Ins. § 11; 2 Am. & Eng. Enc. Law, p. 176; 15 Am. & Eng. Enc. Law, p. 44; Day v. Mill-Owners' Mut. F. Ins. Co. 75 Iowa, 694, 38 N. W. 113; Supreme Lodge K. of P. v. La Malta, 95 Tenn. 157, 30 L. R. A. 838, 31 S. W. 493.

Stewart Co. 82 Wis. 488, 52 N. W. 771;
Great Western Teleg. Co. v. Burnham, 79
Wis. 47, 47 N. W. 373; Bowen v. Kuehn, 79
Wis. 53, 47 N. W. 374; Clevenger v. Mutual
L. Ins. Co. 2 Dak. 114, 3 N. W. 313.

Assessments must be made in strict conformity to the provisions of the by-laws, and cannot be enforced if made otherwise.

16 Am. & Eng. Enc. Law, p. 66; Marblehead Mut. F. Ins. Co. v. Hayward, 3 Gray, 208; People's Equitable Mut. F. Ins. Co. v. Arthur, 7 Gray, 267.

If the interpolated rule indorsed upon this certificate was ever valid, the defendant association has waived the condition, and is now liable notwithstanding.

Stylow v. Wisconsin Odd Fellows Mut. L. Ins. Co. 69 Wis. 224, 34 N. W. 151; Morrison v. Wisconsin Odd Fellows Mut. L. Ins. Co. 59 Wis. 162, 18 N. W. 13.

The defendant has by its various communications with McCoy in his lifetime, and assessments made upon him to pay suicidal