The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1851-01-03
Court OF Commo. Pleas,

Court Of Common Pleas.
Before the Hon. JUDGES Ingrshsm Daily and woodruff
| JAN. 2--D.cIsIoss Wood Gibson against Wiiisam
Motion to sst aside report of referee denied
Edwund s. wilets against ERshs Ruekmsn Judgment
| afhrmed with costs
s. b MeGo~n against ". Lsapsnuorth, ct al Appeal
dnmissed, and order at chambers affirmed, with $40
Sem1s! Loekeooe against Patrick Lvneh-Judgusnt
Judgment affirmed with costs
.4ndrew y Beman AGAINST Henry j. Piatner.-Judg-
Sharp TordeG against The Trustees Of Cannon ST. Bap-
fist CAarea Judgment reversed, with costs.
George " Niles against George Grissood. -Appss dis
Joseph Reed ct al against Charles Barber.-Judgment
affirmed, with costs.
.4ndreW c. Fisher Ct al against Jumes NJ Msyrav ct al
Judgment affirmed with costs.
iyh against 1In. ~. ,s.,ns;y %sns
stpustes to reduce the damages to $50 and costs In
such case the Judgment Il affirmed for that sum, with
out costs, TO either party on the appeal.
frmed with costs
VIM. r. Wood ct al aga,na Mieqjah M Sianiels Order
a. Special Term anlruaed Appeal dismissed with $40
| costs.
Theodore J. s.iras, against Gardaer WheelUrigm.-
| abide the event
| The saMs Us. the same-verdict confirmed, with
| costs.
Patrick Cooney against james Thompson and Charles
| Parker-Case ordered TO be argued.
JAMES Linden against Maria Linden-Appeal dismiss
ed, and order at Chambers affirmed with $40 costs
| I'm - Jackson against David r. Wheion.-Judgment
| affirm ed with costs.
Edsosrd Jenkins against Peter Pan Zandt Judgment
| reversed, with costs.
John Salerton against Christie Hggi.s-Judgnsnt
afr med with costs.
Christopher r. Kleneks against Corns y. DE Forest
Judgment affirmed, with costs.
Chsils White against Olfrer p. Shurrdger-Judg-
ment reversed, with costs.
Jas. Beishaw against Isaac W. Cahe-pspers impsr-
Mar Mantzek appellant aganst Rsssi Cors respondent
In this Jadgs DAILY delivered the following dec
sionThe plaintiff was announced to take part
concert given the 9th of February and unless he
prevented from attending by illness ether suhi-
ciens cause, he incurred the forfeiture Of months
salary To prevent imposition feigned illness the
parties agreed that sickness must be proved by the
doctor appointed by the Director This clause in the
contract is somewhat vague, but the meaning, uu-
doubtedy is that tie doctor appointed by the direc
tor is, to determine in thesevent of alleged illness,
whether the plaintiff Is capable OF performing or not
The matter Is to be left exclusively him, arbi
traer between the parties and his opinion Is to be
binding upon both. Ii was proved by the witnesses,
Beneyentano and Loder. that d.. Quin the physi
clan OF the com pany. that he was appointed by the
! director, and that notice to that effect was publicly
posted up in the Opera House The plaintiff therefore,
is be presumed TO have had knowledge OF the tact,
and it vas his duty, upon being taken sick to have
cent for Dr. Qun, or at least TO have notified the
manager of his illness before the time OF
unless be was so need that it was impossible
for him to do Indeed, think that it incum-
bent upon him to notify the manager before one
O'Clock Of the dag Of performance lie had bound him
self to conform strictly each and all OF the reyu-
lations Of the opera company commonly in USE" and
1t appears that for the purpose OF epabng the mana
ger TO prevent the of the public by
changing the performance, procuring substitute,
that regulation exifted requiring performer, In
the event Of possible failure to give notice to the
marager by ere o'clock the day Of performance.
1t not in writing bat Beneven@no proved thai IL
had teen adopted from the theatre La Scala at Milan
and was general regulation In opera houses and per-
fectly well known to ali srtsts and ayers. IL is
fair to presume that the plaintid member of the
company had knowledge of its oxiseDce; and as the
regulation one apparently htal to the proper
conduct ard management OF such an establishment 1t
fore one o'clock. unless his illness occurred after
| that period The fact OF the plaintiffs nonat
| proved 1t rested with him to show, by the
| opinion of DR.. Quin, that he was incapable of
attending from sickness This he bound to do;
and there no other means of proving It. he should
have examined the docter as witness. lie either
required to do this prove that he had notified the
doctor or the anagers and that the former had failed
to attend lie offered no such testimony; but having
| showa that DR. GUN prsctised upon principles Of
homeopathy he insisted that he was not doctor and
that the deie ndaDt having failed to appoint doctor
be was thberty TO show his illness, upon the night
law Justice concgrred aud the paiatif having
called several witnesses estabh his Illness judgment
was rsndersd hr favor In his return, the Justice
rays, that Ii not shown that DR. Quin doctor
thss be had taken q degree doctor OF medicine or
TIA. ss was authorized b the medical society Or mad
principles Of Homeopathy and that such practitioners
majority Of TIE public as regular prsotitionsr that
the dets ndsnt having tailed to appoint doctor pur
susns, o. me contract the pi.intin va, entitled 70
Of tie contract the selection OF the doctor lott
entirely to the defendant AVID for him TO judge
Of the fitness capacity Of the to be selected
All that he required to do In the fair intecpr-ts
tion OF the contrast, TO appoint who made
immat.risl to what school OF medicine the person
selected belonged whether he belonged 10 any. The
legal sgnihcation Of the term doctor when employed
a. Il 10 this contract means simply practitioners
physie The sytsm pursued BY the practitioner Il not
Q, sI,sulsr s,,,s. TS,n ss 40 ,b hue ,psa.
OF inquiry only whsn the skill or ability Of prsc-
titioner, in any given Gaze is to be passed upon
aud cannot, supply fixed and arbitrary rues for
the Interpretation OF medical science. 1t Is
science essentially progressive In its nature, en-
largirg with the growth OF human experience snd
subject to the changes and revolutions that attend
Other branches Of human inquiry. Its pursuit ne
csssarily leads 10 the gradual If facts
of undoubied faets TO be regarded as poeitve know
ledge; but the manner In which this know ledge sha
be applied in the treatment and cure Of disea,es has
been aud III probably continue to be- open TO diver
city Of opinion No one system OF practice ha. been
uAlioimiy followed; but physcisns from the days OF
Hippocrates, have been divided into oppehng sects
snd schools The sects Of the dogmstis aud smpi
RIGS vidsd the ancient worli for centuries until tns
rice Of the methodior who In their turn way to
nnumsrabs sects The theories OF practice believed to
be pfadbie In one age have bsen utterly rsjscts Ia
another For thirteen centuries Europe yeldsd to the
authoiry 81 Gslen. IL I'M biicitly followed; his
practice strictly pursued everything that sssmsd TO
conflict with his precspts At and yet
IN tho revolutions OF medical opinion the works OF
PaFacesu. an lis discipes ami for ceatarl.s foov.
leg tie medical world was divided between the Ga. |
lensts end the chemists until oompl is ascsndsucy
obtaintd both by the sect Of the yitslists
Indeed It 10 matter OF fsp,izr historical knowledge
that the practitioners Of sedieine In all ages, have
been more given to the Invention OF theories than to
close observssion and the patient accumulation OF |
facts They have inclined more to speculative In |
qsiy than to that insuctirs process by which In |
other sciences the pbeuotnepa Of nature have bees
unrsysllsd. Without undertaking. the practical be-
ntit conferred upon mankind by the study Of m.ai.
cine, u may b. remarked, that ~ has been charac-
t.risss n greater degree hy nucuatons Of opinlon.
than, perhaps, AIRY other pursuit that II has been
prominently distinguished by the constant promal.
gain and explosion OF theores that " IA, al ernssd
brtseeD the advancement Of doctrines and the |
revival OF old ones and that lite professors In every
sgs have be- noted for tbe tsnscity with which /
they have chung TO opinions, ard for the unanmity /
with which they have resisted the introduction Of the
most valuable disooversf They stnl continue to dis
10 respect TO the treatment Of diseases old
tho human race aud ct the percent dsy when great