New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1852-08-11
SUPREME CouRr-Spe cinl Term

SUPREME OOUkT0Spe Ter III
Trp mont Dc sior Aug. 1852 ast,vs Co,Dxs If
Pa, sciass and Ssr9eons ,ad. ssucs The stsr.
nsye nane sliege,n at BY vniE of the mstrcula.
ii, ms and payments uckets and other ac there men
toned snd OF the charter, bylaws rui.s regGaions
requisites and eondt ms, alec therein msthoned tho
rels'or became and was justly entitled b bald the
franchise position or Office OF student member Of the
College candidate for the degree OF Doctor OF Med
ne ard TO enjoy all the gh add privileges ssd an
chise sherewih nectsd theTeunto In any wsy De-
lopsps and 10 stepd the lectures and cniques such
candidate student and pursue his medical studies
70 their full completion, and 20 receive from NE Cob
ege, found duly qualified pursuant to the said requi
ties ard conditions the degree OF Doctor OF he1cins
The motion 30 qussh the sui Of msndsmus IL In the
nature Of demurrer AID admits the truth OF the fore-
going allegations, a. well that which foows namely.
mat the Trustees OF the College without legal or sum
eent Cause and In an pars and Illegal manner have
removed him from the said position student and can
date iors degree and deprived him OF the valuable
frsncbife thereto pertaining
so that IL conceded that the defendants have Ia an
arbitrary snd Illegal manner deprived the rcstor Of
right which be had acquired, by bis psymen, TO them
and Their e,nt rom bin Of the required fees and By
bis FUN compliance with their rules and resul,ions
The reators rights, and the wrong done 70 them BY
the defendants, being thus clearly est.shed IN the
record the only question presented to me H. whether
remedy be afforded by means of the wris Of man.
dsmus Not whether he has any remedy, but whether
II be sought for and al mnistered 10 him 10 this
form.
On the par. of the defendants Il Is Unlisted that tho
College being an eleemosynsry corporation 10 subject
only TO the visitation Of It's trustees and that the redrsss
OF any wrong committed by the College DO rdrcseed
only by those Trustees and that appeal from their
seton has been provided In she act OF incorporausn,
their 10 pone In fact and their determination IL hpal.
And the spgusge Of Lord Hoes In ths leading Of
PhtlipS Bdry Skia AIS ts quoted the next point
Is no more than this-wheher the justice of the sen.
tence (of the VISITOR be examnaoe in any Of the Courts
ofcommon Law That Is frst whether the sufhcsenoy
Of the sen as TO the cause be exsnnaole In the
common law courts AND secondly, whether the truth 81
that cause suppose TO be- good and sufficient 20 ground
the sentence true, be inquired Into aud examined.
And think the sufcency OF the sentence never to be-
called In question, any nqu les 10 be made hero
into the II the deprivation. IL the sou
tence be given by him that IL visitor created BY the
founder by the law you shall never inquire into the
validity ground Of the sentence. And aesiu, fhs
che visitor) hath jurisdiction and cognzsnce Of the mat
and person, and be gveth sentence, there no ap.
peal If the founder hath not thought h, to direct one
That an appeal e,h to the common law Courts with.
Such, undoubtedly, 10 the doctrine laid down $50
years since and followed 10 numerous instances since
There are, however, two considerations which cause
20 doubt It's controlling power over the case now be-
fore me.
ore is that does not clearly appear that there
no visions beyond the Trustees. Upon the facts, a.
they appear now in the papers, might we'll inter that
there Yet may well be tina, some po wer
of visitation has been reserved by the Regents Of the
University some right reserved or retained In that
body 20 supervise and guard against arbitrary and
unjust exercise of power By the officers of the literary
Institutions established by them. And II there Ia such
power Of visitation, ought cesryto be applied 10 be-
fore resort be had 10 the common law Courts.
tis undoubtedly, true that In the absence Of any ex
preis provision for visitation the Trustees them ves
become visitors but the fact OF the absence of an Oh
provision Is not csary made cut and until such 70 ru
shall be made, can have no certain assurance that
shall be determining the question Involved on correct
basis of fact
The other consideration IL this that the Courts have
sometimes departed from the strict rule laid down by
Iloet In Rer University Of Cambridge, Strange $50,
the return, was said, fully JUSTIFIED the sending man
dornus, as i, showed the power of the vceChanceor
and Congregation only TO deprive for reasonable
cause and |, not pretended there any visitor
or any other uri.ciconto examine into the reasonable
ness OF the deprivation but that OF the Court
In Rer We. d.. Asssr, Bur-, 2,lsS, Lord Manifold
holds this language:
There can be but little doubt that the College arc
OJHged in conformity to the trust aud confidence placed
IL me m by the Crown and the public to admit all that
ere fl; and rject all that HBf. For under th6
reason and spirit and true construction Of this charter
and this ect OF Parliament no person ought 20 be SUI
fired 10 practice phy sic, BIT snck only have skill and
ability and have diligently applied themselves to the
study well grounded the Wedge Of II and,
The other hand, all persons who qualified and
have bestowed their time and money aud labor In the
proper itndies that tend to snch qualifications, navSs
Islt to be admitted to exercise aud practice their
pTOt ssiOn And the public have also rSM to the a.
sistsnce Of such person, who has, by his labor and
stuoe rendered himself capable Of serving the public
by giving them proper advice and directions.
IL Is true that the judgment aud discretion OF dder
inine upon this sk ability learning and suiclency,
10 exerce and practice this profession Is trusted 10 tho
College OF Ply sieans and this Court will not take Il
from them nor Interrupt them Ia the due ana proper
OF H. But their conduct In the exercise OF this
uu.t thus committed TO the I'm, ought 10 DO fair candid
ard u1rWdced; not arbitrary edpricons or biassedj
much ess warped by resentment or personal dislike"
IN" Dr. GOldsmiks Case-A mandamus WAS moved
fer The College of Physicians for restoring him to tbs
Fellowship Of the College, aud some doubt was made,
whether nandamus would lie ter ths) or for any
Fellowship In any OF the Colleges In the Universities
But at last twas granted and said that 1. should be
consi5ered on the Return, whether 10 lies not And
siteIwsrd In Triaity Term Return was made whsre-
by Il appeared that Fellow (here is not Fellow,
member Of Corporation, but Is kiad OF officer, AZ
Manciple 10 to a College and the Return (was) ad-
judged good, and Restitution Leylnzs Reports,
vol. l., 49,
In doubtful questions the Court will not determine on
motion, but et the mandsuus co. that the matter may
con- @ before them tbs return. In which case tho
parties have their remedy Of revs wing the dscson,
which they may no. have the motion, and can cay
With the Court In the case 10 Srange "Itis consider
alton Of great comfort to me- that il do err, my jadg
ment Is not concuiveto the party, but my mistake will
DO rectfed, and so injustice not DC done"
Therefore, II IT, the question being OF doubt, aud
net intending TO express any opinion upon II, that
deny the motion 10 qussh the writ Of alternative
dsmUs IL does not, however, follow that peremptory
writ should be- awarded IL mi ht be so Ia the discre
ton Of TIE Court and that discretion would be exer-
cised where the grounds which the motion TO quash
the writ were frivolous Here they not so, but In
voye grave question, which can properly be raised.
only return.
The true course then, will be to extend the time 10
return 10 the alternative writ be made within twenty
Gays after the service Of the rule hereOn wlhn such
further time 40 Judge at Chambers may grant.
Let rule to that effect be granted.
tAdveri,ementl rv7E -
II If the weather should be clear, or
cloudy or rainy to-day It will he Just the condition and the
time to secure splendid Dasusreoype hkene" at RooIs