Opinion by
Willard, J.,The Pittsburg Council No. 117 Junior Order of United American Mechanics of Allegheny County was chartered September 3, 1889.
. The object of the association, as stated in its charter, is “ to maintain and promote the interests of American mechanics by assisting them in obtaining employment and encouraging them in business; and establishing a sick and funeral fund from contributions made to said fund by members of this corporation.”
In considering questions growing out of organizations of this character and when the rights of individual members of the corporation are involved, courts of justice should exercise the utmost care in determining conflicting claims between members and the organization to which they belong.
That the learned judge in the court below realized this duty and fearlessly and impartially performed it is fully demonstrated by an examination of the record. We might rest this case and affirm it on the charge of the learned trial judge but the specifications of error raise questions which it is our duty to notice. The facts of the case are fully stated and analyzed in the charge of the court below and it is unnecessary for us to restate them.
While the by-laws provided that at the death of a member entitled to benefit, the other members should each be assessed *621the sum of $1.00, which if not paid within thirty days should be charged up, they did not provide specifically for any notice to the members of any particular assessment. It was proved that the secretary of this council did send notices of such assessment and such was his custom. It was claimed by the appellant that a death had occurred and an assessment made therefor which was charged up to the account of Herbert B. Crumpton, thus making him in arrears at the time of his death so as to deprive his executrix of any right to the death benefit fund. There was no evidence that any notice of this assessment was ever sent to or received by Mr. Crumpton. The appellant asked the court to charge that specific notice was not necessary of a member’s death and a consequent assessment. This the court refused to do so far as it affected the forfeiture of Mr. Crumpton’s membership, for the very good reason that no man shall be deprived of his rights without due notice of the reason therefor. It further appeared as before stated that it was the custom of the secretary to send notices of these death assessments as they occurred. It was said by Chief Justice Thompson in Helme v. Phila. Life Ins. Co., 61 Pa. 110, “If it was the practice of the company to notify the plaintiff of the times her premiums were due and payable, and omitted on the occasion of the default; or if they so dealt with her as to induce a belief that the clause of forfeiture would not be insisted on in her case .... and thus put her off her guard they ought not to be permitted to take advantage of a default which they may themselves have encouraged.” We think the first assignment of error is without merit and it is overruled.
In considering the second assignment of error we have carefully examined the testimony for evidence of the mailing of a notice of the death of the member evidently referred to, and have failed to discover it. The only notice referred to in the testimony of Mr. D. J. Lewis is that of November 9, 1893, and he swears that he does not know whether that letter included the notice of the death assessment of Mr. Cooper or not. The court was asked to charge that the mailing of notices to the members of the death and assessment of a deceased member was all that was necessary. The court affirmed the point with the qualification that before the member can be considered in *622default he must have had notice of the assessment. Under the evidence the answer to the point was properly qualified and the second assignment of error must be overruled.
On the 9th day of November, 1898, Mr. Crumpton was notified that he was indebted to the council in the sum of $3.10. Soon after that he sent to the council $5.00 and had a credit of $1.90 standing to his account, and was clearly entitled to have it applied to the payment of the weekly dues in>the absence of any notice from the council of any death assessments, which he had a right to expect if any such had been levied from the custom of the secretary to send such notices. The court was asked by the plaintiff to charge the jury that Mr. Crumpton, in the absence of any notice of any other claim, had a right to rely upon the application of the money standing to his credit, to the payment of his dues. The point was affirmed and the appellant has assigned the affirmation of this point for error in its third assignment. It was vital to the rights of Mr. Crumpton whether the money to his credit should be applied to the payment of his dues which would leave him in good standing up to and including March 22, 1894; or whether he should be deprived of his good standing by the charge of a death assessment against his account, of which he had no knowledge or notice. The third assignment is overruled.
The fourth assignment involves the construction of a by-law of the council which reads, viz: “ Each contributing member shall be assessed ten cents additional, every three months, which amount shall be forwarded quarterly to the American Defense Association to aid them in their endeavor to secure legislation restricting immigration.” It is apparent from the language of this by-law that it is foreign to the purposes of this council as expressed and set forth in its charter, and they had no right to pass any such by-law or to charge any member’s account with contributions levied under its provisions. If the subject-matter of a by-law is clearly alien to the nature of a corporation and is a departure from the purpose, such a by-law is ultra vires, and void: People v. Chicago Board of Trade, 43 Ill. 119; Taylor v. Griswold, 14 N. J. L. 227; Commonwealth v. Gill, 3 Wharton, 228.
In the fifth assignment of error complaint is made of the language of the court in the closing part of the charge to the *623jury. We are of the opinion that the facts in this case fully warranted what was said by the learned judge. The executrix of the deceased member, in attempting to recover the death benefit provided for, made out her case when she proved the two $5.00 payments mentioned in the testimony and which it was not disputed was received by the financial secretary of the council. The appellant attempted to prove a forfeiture of the policy on account of the nonpayment of dues and it was certainly incumbent upon them to prove the nonpayment and consequent forfeiture, and the learned judge was clearly right in instructing the jury that the burden was upon the appellant to make out its case and to show that the member was in arrears for thirteen weeks within four weeks of the time of his death; the learned judge told the jury that the member was pot in arrears at the time of his death; that it was all paid up, and more than paid up, and he was fully warranted in po doing, according to the testimony. Before there was a forfeiture, just previous to the death of the member and within the time to save his membership, his sister, acting for him, mailed and had delivered in the private box of the council in the city of Pittsburg, more than enough funds to pay his .alleged arrearages; and further the financial secretary received the funds so sent and delivered as the financial officer of the .council, which he never returned to the member before his .decease or to the executrix of his will after that time. The money was at the place designated before the expiration of the thirteen weeks ; because the financial secretary did not take it ..out of the post office box was no fault of the member.
This case hinged upon two questions of fact, both of which were fairly submitted to the jury, and by their verdict they have found that Herbert B. Crumpton at the time of his death was in good standing and that the plaintiff in this case is entitled to the benefit fund sued for. The judgment is affirmed.