trial or examination of any charges, and | Lipa, 28 Ohio St. 665, it was held that without affording him any opportunity to be heard, expelled the plaintiff from membership, whereby he lost his privileges as a member and his right and interest in and to the property of the corporation, and was also greatly injured in reputation. To this declaration the defendant demurred in the court of common pleas, where the demurrer was sustained, and the case comes before us on exception to the ruling of the court below in sustaining the demurrer. It is obvious, if the defendant is liable to suit at all on such a cause of action, that the declaration sets out the cause of action with sufficient fullness. The elements of an illegal and highhanded violation of the plaintiff's rights are fully stated. Indeed, the defendant takes the ground that the declaration sets forth an act so clearly illegal that it is void ab initio, and so there has been no expulsion, and consequently there is no damage and no right of action. No society should be admitted to shield itself in such a way. If the position is taken in good faith, a proper acknowledgment of the error will be evidenced by a restoration of the injured member to the privileges of the society; otherwise, continuing to hold out a member who has been wrongfully expelled is as bad as the original wrong itself. It amounts to saying to the member: "We have illegally expelled you; but so long as you do nothing about it we will let the expulsion stand and keep you out, but if you call us to account for it we will say we have not done it at all, because we did not do it right." Such a defense cannot commend itself to a court of justice. Cases which lay down such a doctrine cannot be followed by this court. The demurrer cannot be sustained on this ground. As the case stands upon the demurrer, a corporation for benevolent purposes has expelled a meinber without a trial, who thereupon sues for damages for the illegal expulsion, and the issue raised is, can such an action be maintained? There is no question that a member who has been illegally expelled has the right to apply to the court to be restored to membership by a writ of mandamus. There is also no question that while a corporation like this is not one which gives a member an indefeasible interest or property right, like shares of stock, still the benefits are a sort of money interest, in regard to which the member is entitled to protection. If he is lawfully expelled he loses these benefits altogether. If he is not lawfully expelled he is entitled to be restored to them; but is he also entitled to maintain an action for damages for the pretended expulsion? It is manifest that the most exact and complete remedy is by restoration, for in this way one is not only vindicated in his character and standing, but also re-established in the very rights which belong to him, without being obliged to take something else as a substitute for them. And evidently he caunot have both remedies at the same time, for restoration implies a correction of the error, and damages, compensation for it. They are incompatible: they cannot stand together. Thus, in State v. bringing an action for damages was a waiver of the right to a mandamus for restoration to membership. It is now well settled in cases of this kind, involving, as they do, a sort of right in property, that mandamus will lie; and we have only to consider whether an action may lie in lieu of mandamus. Decisions of this question have not been numerous, owing to the fact that the multiplication of these societies is of recent date, and the decisions that have been given are diverse. We have been referred to one case only, and We have found no other, which squarely sustains the right of action. Ludowiski v. Society, 29 Mo. App. 337. It is to be regretted that the court in that case simply declares that the right of action exists, without stating the ground upon which it rests. In other cases there are dicta that an action may be maintained for illegal expulsion, but these, too, lack a discussion of the right of action. It is assumed to be in compensation for an injury caused by a violation of right. Society v. Bacher, 20 Pa. St. 425; People v. German U. E. Church, 53 N. Y. 103. State v. Lipa, supra, was a petition for mandamus, which was refused on account of a pending action in error, on which a judgment had been recovered. On the other hand is the recent case of Peyre v. Society, (Cal.) 27 Pac. Rep. 191, which denied the right of action upon the ground that it would punish those who voted against the expulsion as well as the ma. jority who voted in favor of it. The question cannot yet be regarded as settled upon authority. Upon principle we do not think the action should be sustained. It assumes an illegal expulsion, for which, the wrong being waived, compensation is demanded. If the illegality is waived and the expulsion acquiesced in by the member, we see no reason why it should not be taken for what it implies. The waiving of illegality implies and recognizes a legal expulsion. There is no escape from this. But if the member has been legally expelled there is no ground of action. waiver of the illegality, therefore, is a waiver of the entire cause of action; for, if the action be not illegal and in violation of the plaintiff's rights, there is nothing to complain of. There are cases in which a tort can be waived and an action of assumpsit for damages sustained, but those cases are radically different from the case at bar. They rest upon the principle that an act done, which is in itself a tort, may be treated by the injured party as having created a contract upon which he may recover; this remedy being of a milder character, and so no disadvantage to the defendant. But no case can be found where a plaintiff is allowed to waive a tort for the purpose of putting the defendant in a worse position than he would be in for the tort itself. Much less should one be allowed to waive a tort for the purpose of maintaining an action which, without the tort, would have no foundation. For example, suppose one wrongfully takes the goods of another. He may be sued in trover; or the tort being waived, and the taking considered as The lawful and so carrying the title, a promise to pay may be implied. Here, outside of the tort, there is something upon which the implication of a contract may act, namely, the payment for the plaintiff's goods which the defendant has in possession. But in the case at bar there is no chance for the implication of a contract. There is no right to the fund except in a member; and a member may be lawfully expelled, and thereby lose that right altogether. In the ordinary case of waiving a tort one simply foregoes an advantage which he might press by reason of the wrongful act; but, in the matter of expulsion, if he foregoes the wrong he foregoes everything. Suppose, in an action for assault and battery, one could waive the tort, what would be left to sue for? Yet such a case would be analogous to the case at bar. The reasonable view is that ́| if one waives the illegality of an act, and acquiesces in it as a legal and accom. plished fact, he must take it with its consequences; and the consequences of an expulsion, with the element of illegality dropped out of it, would be a valid deprivation of membership, for which no action could lie. See Cooley, Torts, (2d Ed.) 107111. There is another reason why an action like this should not be maintained. Ordinarily these societies have no fund except that which is contributed for the benefit of the members, according to the regulations agreed upon. Each society is a sort of trustee of such a fund, and has no right to apply it to any other purposes. If one can take it on a judgment for damages he diverts it from the benevolent objects for which it was contributed, and that, too, possibly, to the injury of members who have not been in fault. Irrespective of the question of jurisdiction over such a fund as trust fund or a charity, a court ought not to make such a diversion possible if it can be reasonably avoided. If resort cannot be had to such a fund, a judgment against a corporation which accumulates only such a fund, and acquires no other property of account, would be a barren remedy to offer. The more difficult question of the measure of damages shows the impropriety of allowing the action. In Ludowiski v. Society, supra, only nominal damages were given. To establish a right of action for the mere purpose of allowing one to recover nominal damages is a course not to be commended. But what rule can be laid down by which to gauge a larger measure of damages? The members of these benefit societies have no severable interest in the fund. They can receive no benefit from it except as members who continue to pay their assessments, and then only in case of sickness. How can it be determined whether any member would continue to pay dues in the future; whether he would be sick during his membership, so as to derive benefit from the fund; whether the amount which he would be required to pay in may not exceed the amount he might receive as a benefit, and thus prove to be no loss at all? All of these questions enter into the determination of the amount of damage sustained by expul. sion. They are incapable of proof. They are matters of pure speculation and guess, and too uncertain to form the basis of a judgment. If a member wrongfully expelled desires to enforce his rights, exact justice can be done by reinstating him. Great injustice may be done by an award of damages based upon conjecture or possible prejudice. But the plaintiff urges that, if the action cannot be maintained for the loss of membership rights, yet he may recover for the exclusion from the right to enjoy the use of the common property and the privileges of membership. While such a recovery would not he objectionable for inconsistency, and would be less objectionable for uncertainty in the elements of damage, we nevertheless think that an action is not maintainable on this ground. The plaintiff had the right to an immediate restoration to participation in the affairs of the society. What he has suffered by exclusion therefrom is due to his own neglect to seek his remedy. Upon no principle of justice can he allow the exclusion to run on for the purpose of accumulating damages. There might be a brief interval of exclusion between the vote of the society and the enforcement of the remedy, but that would be too small a matter for a court to allow as a ground of action. Mistakes and illegalities are liable to occur in all sorts of societies, and the remedy which a court can give cannot always be absolutely adequate. Courts must deal with these matters sensibly, and to recognize every error which may to some extent infringe the rights of a member, as a cause of action, wher that error can be speedily corrected, would be a manifest stretch of the administration of the law. The grievance may be regarded as an incident to membership in a society, and, at any rate, of too trivial a character to require compensation in damages when the substantial remedy of restoration is at hand. In our opinion the plaintiff is not entitled to maintain this action, and the demurrer to the declaration is sustained. Exceptions overruled. NATIONAL BANK OF COMMERCE et al. v. (Supreme Court of Rhode Island. April 30, 1892.) ac A bill framed on the theory that a trust expired at a certain time, and asking for an count of the trust estate in the hands of the trustees, cannot, after a decision that it had not expired, and that so long as it continued the cestui que trust, testator's widow, was entitled to the annuity provided, be amended so as to seek to have complainants' claims as creditors of testator decreed a lien on the property, subject, at most, to the widow's claim of dower, and to have the property sold and divided, the effect of such amendment being to make a new and different case. Motion by complainants to amend the bill of complaint. For former proceedings, see Index HH. 67, 21 Atl. Rep. 959, and Index JJ. 58, 180, 24 Atl. Rep. 271, 273. Thomas C. Greene, James Tillinghast, Joseph C. Ely, and John T. Blodgett, for complainants. Arnold Green, for respond ent. PER CURIAM. The bill as originally framed proceeded upon the theory that the trusts created by the will of Amos D. Smith terminated at the expiration of 10 years after his decease, and prayed for an account of the trust estate in the hands of the trustees. The court having found that said trusts did not expire at the end of 10 years, and that, so long as the trusts continued, Amy A. Smith, the widow of Amos D. Smith, was entitled to the annuity provided in the will, and that such annuity was superior to the rights of creditors, the complainants now seek to amend the bill so as to have their claims as creditors of the estate of Amos D, Smith, deceased, to be a first lien upon all the estate and property now remaining, of which he died seised and possessed, and all property taken and held in lieu of that which he held at his death, subject only to the claim of his widow for dower, if any such claim she has, in addition to what she has already received out of the estate; or in the alternative, that such claims shall be decreed to be a first lien upon that portion of the estate now remaining in the hands of the trustees, called by the testator the "trust estate," superior and in preference to any right or claim of said Amy A. Smith, or, at all events, second to her right or claim, as the court may determine. The bill, as proposed to be amended, prays, among other things, that an account may be taken of what said widow has received from the estate of said Amos D. Smith, and that, if she claims dower, the value of such dower at the decease of her busband may be ascertained; that an account may be taken of the amounts due the complainants and the other creditors of the deceased; and their lien being established that the property may be sold, and the proceeds, after payment of the costs, may be applied pro ratio to the payment of creditors; that a receiver may be appointed, for an injunction, and for general relief. It is manifest that the effect of the proposed amendments will be to make a new and different case from that which we have already heard and decided, in which nothing remains to be done but to enter a decree conformable to our decision. To grant the motions to amend as proposed is not permissible under the settled rules of equity practice. Amendments, the purpose of which is to bring before the court other parties to the controversy,| or to strengthen, elucidate, or explain the case made by the original bill, or to put in issue some material fact which may directly or indirectly affect the case so made, however considerable, will be freely allowed at any stage of the proceeding; but where the effect of the amendment is to abandon the case originally made, and to substitute a new and different one, and especially when it is not asked for until after the case has already been heard, or even set down for hearing, a different rule governs the discretion of the court. In such a case it will generally be found consonant with justice to leave the complainant to bring a new trial, if so advised. Pratt v. Bacon, 10 Pick. 123, 128; Lambert v. Jones, 2 Pat. & H. 144, 163; Walden v. Bodley, 14 Pet. 156, 160; Snead v. McCoull, 12 How. 407, 421; Shields v. Barrow, 17 How. 130; Fenno v. Coulter, 14 Ark. 38, 44, 46; Carey v. Smith, 11 Ga. 539; Codington v. Mott, 14 N. J. Eq. 430; 1 Daniell, Ch. Pl. & Pr. p. 425, note 5; Id. p. 440. The motion to amend is denied and dismissed. Decree entered April 30, 1892: "This cause came on to be further heard at the above-named term of said court, and was argued by counsel, and thereupon it is on consideration thereof ordered, adjudged, and decreed: That the complainants are not entitled to any prior or superior rights to other creditors of the trust estates described in the pleadings, by reason of their having obtained judgments as described in the answer of the respondent trustees against the said Francis M. Smith and Charles Morris Smith, in their individual capacities. That the complainants' petition for an injunction against the respondent trustees Francis M. Smith and Charles Morris Smith, filed January 1, 1892, asking that they be restrained from mak ing any sales of any part of the trust estates held by them under the will of Amos D. Smith, is denied and dismissed. That the annuity of the widow, Amy A. Smith, given by the said Amos D. Smith by his will, and the needful expenditures for repairs, insurance, and taxes on the estates given to the said Amy A. Smith, for her life, by the said Amos D. Smith, by his will, are a first lien on all the trust estates held by the said Francis M. Smith and Charles Morris Smith, as trustees under said will of Amos D. Smith. That the said trustees, Francis M. Smith and Charles Morris Smith, have power and authority to make, at public or private sale, sales of the trust estates held by them, to pay said annuity and the repairs, insurance, and taxes on the real estate given by the said Amos D. Smith by his will to the said Amy A. Smith, for her life, and to pay repairs, insurance, and taxes, and other expenses incident to the proper care and management of said trust estate, and they are further directed to make sales as soon as practicable of such portions of the trust estate in their hands as are unproductive and bring in no income. That the motion to amend the bill of complaint filed by the complainants March 23, 1892, is denied and dismissed." A decree had already been entered dismissing the bill as against the respondents the city of Providence and Hodges. (17 R. I. 691) GARSIDE V. LADD WATCH CASE Co. (Supreme Court of Rhode Island. May 7, 1892.) NEW TRIAL-MISCONDUCT OF JURY-VIEWING PREMISES. In an action for personal injuries alleged to have been caused by defendant's negligence in leaving a trapdoor open, the evidence was contradictory as to the nature of the door and the surrounding premises, and the counsel for defendant asked that the jury be taken to view the premises; but this, on objection of plaintiff, was refused. Certain members of the jury then examined the premises without the knowledge or consent of the court, or of defendant, and later a verdict was rendered for plaintiff. Held, that the jury were guilty of misconduct, and that the verdict should be set aside. Action for personal injuries by Frederick Garside against the Ladd Watch Case Company. Verdict for plaintiff. On petition for a new trial. Petition granted. Stephen A. Cooke, Jr., and Louis L. Angell, for plaintiff. Francis Colwell and Walter H. Barney, for defendant. TILLINGHAST, J. This is an action of trespass on the case, to recover damages for the negligence of the defendant corporation in allowing a certain trapdoor in the landing of a stairway on the premises occupied in part by the defendant, which said trapdoor was used by and under the sole control of said defendant, to remain open and unguarded, whereby and by reason whereof the plaintiff, while using said stairway, as he lawfully might do, in going to his work in the building where said stairway was located, and while using due care, fell into the hole or opening caused by said trapdoor being left open, and was thereby seriously injured. The facts in the case, in so far as the same are necessary to the decision of this petition, are as follows, namely: Before the case was opened to the jury, the defendant's counsel moved the court that the jury be permitted to take a view of the premises where the accident occurred; but this motion, being objected to by the counsel for the plaintiff, was refused. During the trial there was much conflicting testimony regarding the structure, size, and exact location of the trapdoor in question. Dr. Palmer, one of the principal witnesses for the plaintiff, testified that be examined the premises a day or two after the happening of the accident; that he found an entry which was very dark, and also a landing which was very dark; that he could not find any trapdoor by feeling with his hands, but by lighting a match be found a trap that was very nicely fitted into the floor by a lip of steel that went around it; that he saw the dimensions of the trap, and saw that the plaintiff could have fallen in with one foot upon the firm landing and the other going down into the pit; that said narrow lip was secured on the edge to the trap, and then the trap fitted into the space, and supported by this projecting edge, so that one walking on it would never know there was any trap there; that the open. ing was about two feet long; about a foot wide. Upon being recalled on the second day of the trial, he further testified that he had just visited the premises in question again, in company with the plaintiff; that he found a trapdoor 12 by 20 inches in size; that there were two hinges near the end of it, which, owing to the darkness, he had previously mistaken for a "lip;" that he had also learned an additional fact, namely, that there was a double trapdoor,—a trapdoor within a trapdoor, and that the entire landing lifts up, and in that landing there is a second trapdoor; that by falling into that second trap he could account for the plaintiff's injuries, namely, that his body did not have a chance to spread out, but went into a cramped place, and the body was thus cramped. The defendant called a number of witnesses who testified that there was no trapdoor within a trapdoor at said place, and never had been; that the whole platform constituted the trapdoor; that it was on hinges, and, when open, turns up against the partition the whole width of the stairway; that it was 3 feet 2 inches long and 22 inches wide. After this conflict in the testimony had appeared, the counsel for the defendant requested that, in consequence thereof, a view of the premises be taken by the jury, in order that they might determine for themselves regarding the question in dispute. This motion was also denied by the court. The jury found a verdict for the plaintiff in the sum of $8,000. The defendant now petitions for a new trial on the following grounds, viz.: First. That the verdict was against the evidence and the weight thereof. Second. That the damages awarded by the jury were excessive. Third. Because certain members of the jury before whom said cause was tried were guilty of misconduct in this: That during the progress of said trial, and without the consent of the court, and without the knowledge or con sent of the petitioner or his attorneys, they did take an unauthorized view of the premises where the accident occurred, concerning which said action was brought and prosecuted. Fourth. Because certain members of said jury, during the progress of said trial, did take an unauthorized view of the premises where the accident occurred, concerning which said action was brought and prosecuted, without the knowledge or consent of the petitioner or its attorneys, and under such circumstances as to be calculated to lead a jury into error in the determination of said cause. Fifth. Because, during the progress of said trial, certain members of said jury did take an unauthorized view of the premises where the accident occurred, concerning which said action was brought and prosecuted, without the knowledge or consent of the petitiouer or its attorneys, and were thereby misled in matters relating to the evidence of said cause. In support of the third, fourth, and fifth grounds for a new trial, above set forth, all of which may properly be considered together, the defendant offered in evidence a number of affidavits to the effect that, on the last day of the trial of said case to the jury, four or five of the jurors engaged in said trial visited the place where the accident happened, and examined the landing and trapdoor in question. These affidavits were made by persons in the employ of the defendant corporation, each of whom testifies to having seen said jurors making said examination. The defendant also offered the affidavits of three of the jurors who sat in said case, to the efect that the affiants and two other members of the jury, making five in all, visited the premises where the accident occurred, during said trial, of their own motion, and without the knowledge or consent of either counsel or parties on either side; that the sky was overcast with clouds at the time they visited the premises; that the entry way was quite dark; that at that time they thought they discovered evidence of there being or having been a trapdoor within a trapdoor in the landing at the head of the stairs, as testified to by Dr. Palmer in behalf of the plaintiff, and contrary to the testimony given by a number of defendant's witnesses; that two of said jurors have visited said premises since the trial of said case, on a clear day, and carefully examined the landing at the head of the stairs, and find that they were mistaken in their impressions obtained at the time they examined the same during the course of the trial, and that there evidently has been but one trapdoor, and that there are no indications of there being or ever having been a trapdoor within a trapdoor in said landing. It further appears by the affidavit of George S. Ladd, the superintendent and vice president of the defendant corporation, and by that of Francis Colwell, Esq., and Walter H. Barney, Esq., attorneys for the defendant, that at the time of the trial no one of the officers of said company, nor either of its attorneys, was aware that any member of the jury that tried said case had been to view the premises where the accident occurred which was the subject of the suit, until after the trial was over; and that such visit was wholly without the knowledge or consent of the defendant, or either of its attorneys. The plaintiff objected to the introduction of the affidavits of the jurors above referred to, on the ground that jurors are not allowed to impeach their own verdict. The court admitted these atidavits de bene. In Tucker v. Town Council, 5 R. I. 558, 560, it was held by this court that the affidavits of the jury men as to what took place in the jury room, or as to the grounds upon which they found their verdict, must be rejected; "a rule of policy well settled both in England and in this country excluding, for the security of verdicts, this mode of impeaching them." The same doctrine was affirmed by the court in the recent case of Luft v. Lingane, Index II., 58, 22 Atl. Rep. 942. Neither of these cases, however, goes to the extent of holding that misconduct of jurors which takes place during a trial, and before the case is finally committed to the jury, may not be shown by the jurors themselves. The general rule undoubtedly is that affidavits of jurors, while received to sustain or explain their verdict, are inadmissible to impeach or overthrow it. Allison v. People, 45 Ill. 37; Knowlton v. McMahon, 13 Miun. 386, (Gil. 358;) Shaw v. Fisk, 21 Wis. 373. But, while this is so, there are numerous authorities to the effect that, as stated by COLE, J., in Wright v. Telegraph Co., 20 Iowa, 195, 210, "affidavits of jurors may be received, for the purpose of avoiding a verdict, to show any matter occurring during the trial or in the jury room which does not essentially inhere in the verdict itself; as that a juror was improperly approached by a party, his agent, or attorney; that witnesses or others conversed as to the facts or merits of the cause, out of court, and in the presence of jurors; that the verdict was determined by aggregation and average, or by lot, game of chance, or other artifice or improper manner; but that such affi lavit to avoid the verdict may not be received to show any matter which does essentially inhere in the verdict itself, as that the juror did not assent to the verdict; that he misunderstood the instructions of the court, the statements of the witnesses, or the pleadings in the case; that he was unduly influenced by the statements, or oth. erwise, of his fellow jurors, or mistaken in his calculations or judgment, or other matter resting alone in the juror's breast." In Massachusetts, overt acts may be proved by the testimony of jurors, to impeach their verdict. Grinnell v. Phillips, 1 Mass. 530; 3 Grah. & W. New Trials, 1434. In Ohio it has been held that, where there is evidence aliunde of misconduct of the jury, their own testimony may be received, not only to limit and explain, but alsɔ to enlarge and aggravate, such misconduct. Farrer v. State, 2 Ohio St. 51. In Perry v. Bailey, 12 Kan. 539, BREWER, J., in delivering the opinion of the court, adopts the rule laid down in Iowa, as above quoted. See, also, Philips v. Fowler, Comyn, 525; Aylett v. Jewel, 2 W. Bl. 1299 Clark v. Stevenson, Id. 803: Straker v. Graham, 4 Mees. & W. 721; Burgess v. Langley, 5 Man. & G. 722; Rex v. Woodfall, 5 Burrows, 2661; Warner v. Robinson, 1 Root, 194; Cochran v. Street, 1 Wash. (Va.) 79; Reynolds v. Transportation Co., 9 How. Pr. 7; Heffron v. Gallupe, 55 Me. 563, 566. But we need not decide in the present case whether the affidavits of the jurors, offered in evidence, as to what took place outside the jury room, are admissible, for there is sufficient proof of their misconduct without said affidavits. The undis. puted fact, then, which appears in proof outside of the affidavits of the jurors, is that several of said jurors, without the knowledge or consent of the court, or of either party to the suit, visited and examined the premises where the accident happened. This visit and exmination were made after a good deal of the conflicting testimony above referred to-as to whether there was but one trapdoor in the landing where the accident happened. or whether there were two trapdoors, the one within the other, at said place-had been put in. It is evident that, in view of this conflicting testimony, the jurors were curious or anxious, perhaps both, to determine for themselves, by ocular demonstration, whether or not there was, in fact, a trapdoor within a trapdoor at said place, and what was the size and condition of the same, and that this was the main purpose of those who made the examination. It is natural to infer, also, that if, upon making such examination. they became satis. fied that the plaintiff's witness was correct in his testimony upon that point, and that the defendant's witnesses were mistaken, or perhaps falsifying, upon said point, it would strongly tend in their minds to discredit the defendant's witnesses, not only as to their testimony upon this branch of the case, but also upon other branches as well, and thereby prejudice the defendant's side of the case; |