only to errors of the court. A motion is the proper remedy for the misconduct of counsel. In this case there was no error on the part of the court. The offending attorney was promptly called to order, and the jury instructed to disregard the improper remarks. If, under these circumstances, the remarks were considered sufficiently objectionable to entitle the defendant to a new trial, the new trial should have been sought by motion, not by exceptions. If, as in Rolfe v. Rumford, 66 Me. 564, upon objection being made, the court had declined to call the offending attorney to order, and had omitted to instruct the jury to disregard the improper and irrelevant remarks, then there would have been error on the part of the court, and redress could have been sought by a bill of exceptions. But no such errors occurred in this case. The offending attorney was promptly called to order, and the jury emphatically instructed to disregard the irrclevant and improper remarks. The remarks excepted to related to the amount of taxes paid by the railroad company, and were so obviously irrelevant, and so clearly intended as an offset to similar remarks made by the defendant's counsel in his closing address to the jury, that, if they had been passed by in silence, we doubt if they would have had the slightest influence upon the jury. they were not passed by in silence. court characterized them as grossly irrelevant, and instructed the jury not to be in the slightest degree influenced by them. Clearly, there was no error on the part of the court; and, if the misconduct of the plaintiff's counsel could be deemed so gross as to entitle the defendant to a new trial, the only legitimate means of obtaining it was a motion addressed to the sound discretion of the court, and not a bill of exceptions. Motions are more elastic than exceptions; and, as remedies, the two forms must not be indiscriminately employed.

But

The

For the reasons given, we think the exceptions must be overruled. And we do not think the verdict can be regarded as so clearly against the evidence, or the damages so clearly execessive, as to require us to grant a new trial on either of those grounds.

Consequently, the motion must be overruled. Motion and exceptions overruled.

JEANE v. GRAND LODGE, ANCIENT ORDER UNITED WORKMEN. (Supreme Judicial Court of Maine. May 29, 1894.)

BENEVOLENT SOCIETY-EXPULSION FROM MEMBERSHIP APPEAL.

Members of private societies and associations must exhaust the remedies given them by the rules of the society, before appealing to Courts of law for relief.

(Official.)

Report from supreme Judicial court, Lincoln county.

Action by Inez B. Jeane against the grand lodge of the Ancient Order of United Workmen. Judgment for defendant

This was an action to recover the sum of $2,000 by the plaintiff, who is the widow of Harry J. Jeane, and the beneficiary named in his application for membership and insurance in Lakeside lodge, No. 43, located at Jefferson, Knox county, a subordinate lodge of the defendant association. The application is dated December 25, 1890, on which day he was initiated a member of the lodge, and the applicant died October 27, 1891.

The defendant is a corporation under the laws of the commonwealth of Massachusetts, and is organized "for the purpose of uniting in social and fraternal association all acceptable men of sound bodily health and good moral character, to promote benevolence, charity, and morality, to aid members disabled by accident or sickness, or the wives, children or other relatives of, or any other person dependent upon such members; and to assist the widows, orphans or other relatives of deceased members, or any persons dependent upon deceased members, and have complied with the provisions of the statutes of this commonwealth." The defendant corporation is the supreme authority of the order known as "Ancient Order of United Workmen."

Lakeside lodge, No. 43, located at Jefferson, Knox county, which admitted Jeane to the order, and of which he was a member, is a subordinate lodge, existing by authority of the defendant corporation, and Jeane was, March 26, 1891, at a stated meeting, expelled therefrom, for having made a false statement or answer in his application for membership, and written notice of the fact, under seal of the lodge, was mailed to him a few days after, and the money paid by him refunded.

The plaintiff contended that the expulsion was irregular and void, and therefore without any effect upon her rights.

No appeal from the action of Lakeside lodge, so expelling him, was ever taken by Jeane, as provided by the laws of the defendant corporation.

Applicants for membership agree to comply with all the laws, regulations, and requirements of the order then or thereafter enacted. The constitutions and laws are made a part of the contract. Under provisions of law 11, p. 76:

"Every member who does not take an appeal in any case affecting his rights or interests in the order, within the time allowed, shall be deemed to have thereby agreed to abide by such decision or enforcement of the laws or rules of the order."

Under the provisions of section 21, law 19: "When a member shall be suspended or expelled, for any cause whatever, he forfeits all rights, benefits, and privileges, and his

beneficiary thereby loses all right to any portion of the beneficiary fund."

C. E. & A. S. Littlefield, for plaintiff. L. M. Staples and John Haskell Butler, for defendant.

HASKELL, J. The plaintiff must recover, if at all, upon the ground that her husband died while a member of defendant corporation, in good standing. Before his death he had been expelled from membership. It is said that the proceedings leading to his expulsion were irregular, and did not conform to the rules of the order. Suppose they were. The laws of the order give an appeal to a supreme tribunal, constituted for the very purpose of correcting such errors, and they provide that each member failing to take such appeal "shall be deemed to have thereby agreed to abide by such decision or enforcement of the laws or rules of the order."

The deceased failed to take any appeal from his expulsion, and thereby must be held to have acquiesced in the decision. If courts of law should undertake to review the regularity of procedure in all secret or private societies or associations, the burden would become onerous. Moreover, it is just and reasonable to hold that when a member of such society has a remedy, under the rules of his order, from any supposed erroneous action injurious to himself, he should first exhaust that remedy, before appealing to the courts for relief. Karcher v. Knights of Honor, 137 Mass. 368; Chamberlain v. Lincoln, 129 Mass. 70; Grosvenor v. Society, 118 Mass. 78. This court approved the doctrine of the above cases in Lowell v. Iron Hall (an unreported case, decided in July, 1892). Judgment for defendant.

JONES v. LIGHT.

(Supreme Judicial Court of Maine. May 29, 1894.)

FRAUDULENT CONVEYANCES - SUBSEQUENT CREDITORS-NOTICE.

1. Where a conveyance, though absolute in form, but for a consideration grossly inadequate, the grantor retaining a valuable interest in the property, is made with the intent to hinder and delay creditors, and this intent is participated in by both parties, such conveyance is void, not only against existing, but against subsequent, creditors and bona fide purchasers, whether they have notice of such conveyance or not.

2. A mortgagee is a purchaser. (Official.)

Report from supreme judicial court, Knox county.

Bill by John Jones against Robert W. Light to remove a cloud. Judgment for plaintiff.

C. E. & A. S. Littlefield, for plaintiff. W. H. Fogler, for defendant.

FOSTER, J. This is a bill in equity, the main object of which is the removal of a cloud upon the plaintiff's title. The prayer

is for a decree rendering void a deed given by Lewis McDonald to Robert W. Light, the defendant, dated June 16, 1885, and, if not void, that it may be in equity a mortgage only.

The claim of the plaintiff is that this deed, absolute in form, was without consideration, or, if for any, for one grossly inadequate, and made with the intent to hinder and delay creditors, and that this intent was participated in by both parties.

If the position of the plaintiff is supported by the facts, the authorities are unquestioned, and the principles firmly established, which hold that such a conveyance is void, not only against existing, but subsequent, creditors and bona fide purchasers. It would fall within the prohibition of the statute 13 Eliz. c. 5, which has become a part of our common law, and which was passed "for the avoiding and abolishing of feigned, covinous, and fraudulent feoffments, gifts, grants, alienations, conveyances, bonds, suits, judgments, and executions, devised and contrived of malice, fraud, covin, collusion, or guile, to the end, purpose, and intent to delay, hinder, or defraud creditors, and others, of their just and lawful actions, suits, debts, accounts, damages, penalties, forfeitures, heriots, mortuaries, and reliefs."

To intelligently understand the case, it is necessary to present the following facts:

Some time in March, 1885, Lewis McDonald found it impossible to meet his indebtedness to his creditors, and executed a mortgage of all his real estate in North Haven to Wright Bros. & James, of Boston, whose claim against him at that time was upwards of $1,200. In the course of two or three months, it became apparent that the indebtedness of McDonald was very much in excess of what it was supposed to be at the time the mortgage was given. Realizing that the mortgage could not be upheld as against all the other creditors, Wright Bros. & James, on the 19th day of June, joined with the other creditors, and filed a petition in insolvency against McDonald.

On June 16, 1885, three days before the petition in insolvency was filed, and about three months after the mortgage of all his real estate had been given by him to Wright Bros. & James to secure their $1,200 claim, McDonald appears to have gone to Boston, and executed a quitclaim deed of the same

real estate for the nominal sum of $1 and other valuable considerations, running to the defendant. This deed was either taken by McDonald to North Haven, or sent to him by mail, for the purpose, as the defendant says, of being acknowledged by McDonald, and procuring the signature of his wife releasing dower. No mention was made in this deed of the mortgage then existing upon the property to Wright Bros. & James. A list of McDonald's creditors was furnished by him June 5, 1885, and in which the name of the defendant, Light, did not appear. After be

ing decreed insolvent McDonald furnished a list of his real and personal property for the insolvent court, and in this list were included the three parcels of real estate which had been mortgaged to Wright Bros. & James, and which had, after mortgage was given, been included in the quitclaim deed to the defendant, Light. The mortgage to Wright Bros. & James was invalidated by the insolvency proceedings. A list of McDonald's creditors as amended after being first filed, when his composition agreement and settlement thereunder was made, contains no reference to the defendant, Light. In the meantime McDonald had acknowledged the deed to the defendant, and sent the same to the registry for record without the signature of his wife.

To carry out the composition agreement with his creditors, it became necessary for McDonald to raise quite a sum of money. The principal security he had to offer for this purpose was the real estate included in the quitclaim deed to the defendant. With these three parcels, and his interest in certain vessels, which turned out to be of no value, his attorney, B. K. Kallock, who was then acting for him, made an arrangement through G. M. Hicks, an attorney, and who was acting for the plaintiff in this suit, to hire $3,600 of the plaintiff. Mr. Kallock, at the time of the loan, knew about the quitclaim deed to Light; had talked it over with McDonald and with Mr. Hicks, counsel for the plaintiff. Mr. Hicks had talked it over with McDonald, who had told him that it was a bogus deed, without consideration, and given for the purpose of heading off the attorney for Wright Bros. & James, and that the defendant, Light, would never under any circumstances make any move under it.

Under these circumstances, a loan was obtained from the plaintiff to McDonald of $3,600, the principal security for which was a mortgage of the same real estate which McDonald had previously included in the quitclaim deed to the defendant. With this money McDonald was enabled to carry out his composition agreement, and effect a settlement with his creditors.

McDonald being unable to pay anything to the plaintiff upon his indebtedness to him, the mortgage was foreclosed, and the plaintiff took possession of the premises, and McDonald attorned to him, holding under him as his tenant.

It appears that the plaintiff himself had never personally had any knowledge whatever of the existence of the deed from McDonald to the defendant. That deed had remained in the custody of the register of deeds till some time in 1891, or more than six years after it was executed, and after the mortgage from McDonald to the plaintiff. In August, 1891, McDonald, being desirous of purchasing one of the parcels, went to the plaintiff, and made a trade with him for its purchase, taking a bond for a deed to his son,

paying a part down, and giving his own notes for the remainder. About that time, upon an examination of the records, the plaintiff, who at the time of the trial was over 90 years of age, learned for the first time of the deed from McDonald to the defendant. His attorney at once went to Boston; saw the defendant; who then insisted on the validity of the deed to himself, and claimed to have expended from $3,000 to $4,000 in connection with the transaction, but refused to render any account of any advancements that he had made to McDonald. Up to this time the defendant had never asserted any title under his deed, or made any claim in any way to the possession of the property.

While the defendant now claims that a portion of the consideration for this deed (more than two-thirds the value of the property named therein, or certainly more than $2,000) was to be afterwards rendered in professional services, he states that he has never made any memorandum of those services or charge therefor, never has notified McDonald of the amount which he claims for the same, and that McDonald has never called upon him for any statement of the amount. It will be noticed that, in his answer filed to this bill, the defendant states that the consideration was all paid before and at the time of the execution of this deed to him.

It is expressly admitted by the defendant that, at the time he took this deed, he was informed by McDonald that he was being pressed by his creditors, and one of the principal objects of the conveyance was to se. cure him for services which he was to perform in bringing about a compromise with McDonald's creditors. The real estate which was included in this deed was all the real estate owned by McDonald. It appears to have been worth between $3,000 and $4,000, and the defendant admits that. prior to the deed he had paid but $475, and after that enough to bring the amount up to $1,000; and while he insists that he never made any agreement, either verbal or otherwise, to reconvey to McDonald under any circumstances, or that there was any such understanding, he does admit that the balance of the consideration was to be paid in services to be rendered in the future, none of which had been rendered at that time. He also states that he does not expect to hold two of the parcels, and that he regards them as security only for services, none of which, as we have remarked, had been rendered at the time the deed was given. In his answer which was filed to this bill, he denies that the deed was given to secure him for the payment of any sum due him for professional fees, or for the security of any sum or sums whatever.

McDonald testifies that there was an understanding between himself and the defendant that, by advancing money to him, the defendant was to have the homestead, and

McDonald was to occupy it, and live in it, and he was to be paid from the proceeds when sold, and that he trusted to the defendant's honesty in making a conveyance of this property to him by an absolute conveyance when the property was worth more than $3,000, and he had received less than one third of its value.

In Sidensparker v. Sidensparker, 52 Me. 481, 491, this court held that such an arrangement between grantor and grantee is a continuing fraud, and has been held void, not only as against precedent, but also against subsequent creditors. In that case the grantor, as a part of the consideration of the deed, was to receive future support to be furnished by the grantee. The same doctrine is held in Coolidge v. Melvin, 42 N. H. 510, and cases there cited.

But. from a very careful and thorough examination of the evidence in this case, we feel that, in addition to any secret trust existing between McDonald and this defendant, the conveyance was made with an intent to hinder and delay creditors, and that this intent was participated in by both parties to the conveyance. Such being the case, the deed from McDonald to the defendant would be void, not only as against existing creditors at the time the deed was executed. but also against subsequent creditors and bona fide purchasers.

This doctrine is distinctly laid down by this court in Wyman v. Brown, 50 Me. 139, 148, where Mr. Justice Walton, correctly stating the principle enunciated by the decided cases, says: "An absolute conveyance on full consideration, if made with intent to hinder and delay creditors, is undoubtedly void against existing creditors. But we do not intend to decide that such a conveyance is void against subsequent creditors or purchasers. We intend to decide only that where a conveyance is for a consideration grossly inadequate, and is absolute in form only, the grantor retaining a valuable interest in the property, and the conveyance is made with the intent to hinder and delay creditors, and this intent is participated in by both parties, such a conveyance is void, not only against existing creditors, but against subsequent creditors and bona fide purchasers, whether they have notice of such fraudulent conveyance or not." Ricker v. Ham, 14 Mass. 137; Clapp v. Leatherbee, 18 Pick. 131; Beal v. Warren, 2 Gray, 447; Wadsworth v. Havens, 3 Wend. 411; Hudnal v. Wilder, 4 McCord, 295; Hill v. Ahern, 135 Mass. 158.

The case of Whitmore v. Woodward, 28 Me. 392, 418, is to the same effect, and the court there say: "The statute 13 Eliz. c. 5, is not confined in its operation to creditors existing at the time of the commission of the fraud, but embraces those who subsequently become such. It is not necessary to prove that the fraud was meditated against those who might become creditors at a subsequent

period. If the transaction is actually fraudulent against any creditor, any and all creditors may impeach and resist it, and are entitled to the aid of the law in appropriating the property, fraudulently conveyed, to the payment of their debts. The uniform construction of that statute includes subsequent as well as existing creditors." Howe v. Ward, 4 Me. 195; Clark v. French, 23 Me. 221, 229; Bangor v. Warren, 34 Me. 324; Smith v. Parker, 41 Me. 452; Marston v. Marston, 54 Me. 476; Bailey v. Bailey, 61 Me. 361, 364. See, also, Laughton v. Harden. 68 Me. 208, 211.

True, the plaintiff's agent and attorney, at the time he loaned the money and took the mortgage, had notice of the deed from MeDonald to the defendant, but he was assured and believed that the deed was invalid. and that it would never be set up; and, if the plaintiff himself is chargeable with all the knowledge which his agent had, he is not for that reason deprived of his remedy as a subsequent creditor, or purchaser for value in good faith, if that deed was given with an intention to defraud creditors, and the fraud was participated in by both parties to it, within the principle laid down in the foregoing decisions. Ricker v. Ham, 14 Mass. 137, 141; Hill v. Ahern, 135 Mass. 158, 159; Clapp v. Leatherbee, 18 Pick. 131, 138; Wyman v. Brown, 50 Me. 139, 148. "A conveyance actually fraudulent is void against subsequent purchasers for valuable consideration, even with notice." eration, even with notice." Sexton v. Wheaton, 1 Am. Lead. Cas. 47. In Wyman v. Brown, supra, the court say that such a conveyance is void, not only against existing creditors, "but against subsequent creditors and bona fide purchasers, whether they have notice of such fraudulent conveyance or not." In Ricker v. Ham, supra, Chief Justice Parker said: "We apprehend the term 'bona fide," as used in the law upon this subject, means. only that the purchase shall be a real and not a feigned one; otherwise the knowledge would not be held immaterial, as it is in. all the books."

A mortgagee is a purchaser. Chapman v... Emery, 1 Cowp. 278; Hill v. Ahern, supra.

That the plaintiff was a purchaser in good faith, within the meaning of the law relating to fraudulent conveyances, there can be no doubt. He actually paid $3,600, receiving a mortgage upon property not worth more than that amount. That the transaction in relation to the conveyance in question was permeated with fraud, and that both parties participated in that fraud, the evidence fully satisfies us. But it will be of no general benefit to detail the facts appearing in evidence which satisfy us of the fraudulent nature of the conveyance. They are dis-closed sufficiently upon the record. Some of them have already been stated, but they aretoo manifold to be reproduced within theproper limits of an opinion which should determine the legal rights of parties, and the

principles of law governing the same, instead of furnishing a summary of evidence which can be of no advantage in the decision of other cases.

The evidence shows that the plaintiff has been in possession of the premises since the foreclosure of his mortgage, in 1888; and, as the bill is informal in not sufficiently stating the plaintiff's possession (Robinson v. Robinson, 73 Me. 170), an amendment may be made alleging such possession in the plaintiff. Thereupon a decree is to be entered sustaining the bill, and adjudging the deed from Lewis McDonald to Robert W. Light null and void, and that the defendant release all interest in the land described in said deed to the plaintiff.

ROBBERY-INDICTMENT-ALLEGATION OF VALUE. 1. In an indictment for robbery, a description of the property taken as "certain money and one silver watch and watch chain, of the goods and chattels of said J. N. E.," is sufficient, without further allegation of value.

2. The rule that indictments for larceny must allege the value of the articles stolen is still maintained, because the punishment for larceny is graduated by our statutes with reference to the value of the property taken.

3. There is nothing in the nature of robbery, as defined by the common law, from which it appears that the value of the property taken has ever been deemed of the essence of the crime, and there is no statute in this state which makes the punishment of the offense dependent upon the value of the property taken.

(Official.)

Exceptions from supreme judicial court, Penobscot county.

Frank Perley and James H. Goodwin were convicted of robbery, and except. Exceptions overruled.

The following was the indictment:

"The jurors for the state aforesaid, upon their oath, present that Frank Perley and James H. Goodwin, of Bangor, in the county of Penobscot, on the 30th day of August, in the year of our Lord 1892, at Bangor, in the county of Penobscot, aforesaid, in and upon one John H. Emerson, feloniously an assault did make, and him, the said John H. Emerson, did then feloniously put in fear, and with force and violence did then feloniously steal, take, and carry away from the person of him, the said John H. Emerson, certain money of the said John H. Emerson, and one silver watch and one watch chain of the goods and chattels of the said John H. Emerson, against the peace of said state, and contrary to the statute in such case made and provided."

The defendants moved in arrest of judgment as follows:

"And now, after a general verdict of guilty, and before judgment, in the above-entitled

cause, the respondents, the said Frank Perley and James H. Goodwin, come and move the court that judgment in said cause be arrested, and that they be discharged and allowed to go without day, for the following reasons, to wit:

"First. Because said indictment does not, with sufficient certainty, precision, and par ticularity, allege and set forth any crime.

"Second. Because said indictment does not, with sufficient certainty, precision, and particularity, set forth and allege the crime intended to be charged by the grand jury, and which the jury who tried the case meant to convict the respondents of, to wit, robbery.

"Third. Because the money and goods and chattels alleged in said indictment to have been stolen, taken, and carried away from the person of John H. Emerson are not set forth and described with sufficient certainty, precision, and particularity.

"Fourth. Because the money alleged in said indictment to have been stolen from the person of said John H. Emerson is not described at all, and there is no allegation of how much it amounted to, or that it had any value, and there is no allegation in the aforesaid indictment that the watch and chain, the only other property named in the indictment, was of any value whatever, and no reason is stated in said indictment why the said money is not therein described or its amount given, or why its value is not stated, if it had value, nor is any reason given in said indictment why, if said watch and chain had value, that value is not stated therein.

"Fifth. Because said indictment is in other respects informal, insufficient, and not valid."

The motion was overruled by the court, and an exception was taken thereto.

The defendants also took exceptions as follows:

"The judge presiding did not inform the jury that they could find a verdict against the respondents for any offense less than robbery, and no request to that effect was made by counsel, and no allusion was made to the point by counsel on either side during the trial; and no contention was set up at the trial that the respondents might be guilty of any less offense, if guilty at all. All that was said by the judge on that subject is embraced in the following extract from the charge: "The two respondents are accused by the indictment of the crime of robbery. The punishment for the crime may be as high as imprisonment for life, and it may be as low as any term of years, which might be two.' On the subject of value of property taken, the judge made the following remarks: 'It is not necessary for the government to prove that all the articles alleged were taken from him, in order to constitute robbery. It is sufficient if they were all taken, or any of them were taken, or any