The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-10-14
THE LAW COURTS.
Supreme COurt-Special Term.
TIM CHEMICAL SCANDAL oASK-DECIsIoN OF j


Supreme C0urt-Special Term.
THE CHEMICAL SCANDAL oAsK-DECIsIoS OF JUDGE
Ou ls.5Wm HaNu vs. Jonathan ~ Wainwright
.;n9s Bep@Ihis was an application tor an 4.
the defendant from suspending the plaintiff who had
been found guilty of adultery and lying BY Board,
which, he alleged was illegally constituted.
Edmond. Justice.-The view taken " me OF one fea-
turs of this will render the ton
of many Of the questions which discussed on
the argument, and shall therefore be silent in re-
gard to them. The only ground which this Court
can exercise any jurisdiction in this case is that
the civil rights Of tt plaintiff for tine protection of which
he has proper recourse 10 the civil courts The rights
ton from taxation and the perform Of certain civil
duties Conceding hough without expressly ruling the
pon that here ground enough for the action OF this
Court it becomes material to say that the only cogni
which the Court will take of the to inquire
whether there is want Of jurisdiction in the defendant
to &C the act which is sought to be restrained canns
consent to review the CHE of any discretion his part
all inquire whether his judgment that of the subor
dnate ecclesiastical tribunal can justified by the truth
of the cannot draw to myself the duty of revis
ing their action, Of canvassug s manuer founda
on any farther than to inquire whether according to
the Law of the association to which both Of the parties
bell ng they have had authority to act at ALL In other
words inquire ony whether the defendant has the
power to act and not whether he is acting rightly Con
filming the question before within these limits
remark that the objections 10 the Defendants capacity
to act two
lst.-1hxt the presenting board not properly
stued; and
2d-Benamn F. onderdonk is the Bishop of the dscess
and alone competent to do the act csmplained Of
As to the first obectont seems to be 4 principle of
the laws of this Church that the ministers anenable
that when one Is complained Of Board Of Inquest shah
be appointed by the Bishop in certain contingency,
by the clerical members of the Standing Committee OF
TIE docess In this that Board not appointed by
Bishop, but by standing committee. Prior to that
time sentence of indefinite suspension had been pro-
nounced against the Bishop and he absaining from
performing the functions OF his Office and his authority
in this regard excused by the commttse-whether
by the whole committee lay well as clerical members
by the latter alone docs not clearly appear and is
impossible for to say rsm the case presented to
me, whether the appoint ment was or was not BY
the clerical members of the committee alone
After the that has Ella psed and all the proceedings
which have been had, do not feel myself compelled to
infer that there the imputed irregularty The in
ference if must draw any ought rather to be in favor
of the regularity of tho proceedings and thus require of
the party impeachng them Dry evidence on the
point But allowing this to DO otherwise and regarding
it made out that the appointment Of tie Board
Of Inquest was BY the whole Standing COMMITTEES,
to there is principle which decides the ques
tion and that is that the plaintiff has by his conduct
waived the objection 1t seems that when the defendant
entered upon his duties bishop h. formed present
ment against the plaintiff and he proceeded to discharge
the duty which devolved upon him-namsly TO noml
nate to the plaintiff twelve persons to act trers
of the offence charged. Out of these the plaintiff
selected i've, who proceeded to try the casa From
their decision the plaintiff appealed, by moving
before the defendant for trial. which denied
Throughout the whole of these proceedings docs
appear that the plaintiff ever specifically raised the OBJ
lection under confederation He merely in general
terms saved objections and ptions all the pro-
ceedings hat had been had Such reservation amount
ed TO nothing Good faith required that if the
cused had any objections the proceedings he should
have made them in time and poin ed them out spsci
fea ly, 50 that they could have been ans xered or
his objections and after leading his adversary into pre-
tacted contest and after taking the risk of decision in
his favor avail himself of them to destroy that in which
he las induced the other party to believe he
This principle is founded good faith and common
and prevails in all cases in courts of
nnlw firth Qrffn Nit lnri dirt
which consent cannot aer II has been recently applied
in Court of Appeals Here the Judge cited the of
the Buffalo and New York city Railroad Company against
Ednund Brainard. The same against Henry Smith. in
which the Court of Appeals held the general railroad set
to be unconstitutional And appearing by the report
of the commissioner and BY the proceedings thereon in
the Supreme Court that the defendants attended before
the commissioners and before the Supreme Court at AZ
times when any steps taken in the proceedings and
it not appearing that they made any objections
count of the defects complained of all Of which
such might have been obviaed the objections had
been made in season. it held IL at those objections
had been waived and the judgment of the Supreme Court
was affirmed Tho Application Of this principle to the
before is very simple When the defendant Pro-
vsonal Bishop, noRed the plaintiff that he about
proceeding the pressntnent, then the time fer
then the Bishop could have obnated it by appointing
new Beard of Inquest, and having new presentnent
Instead of which the plaintiff .rote letter to the Bishop
eminently calculated to lulu him 70 sleep as 70
this any other objection to the prior pro-
ceedings. In it he said, 81 have resolved practi
submission Of my will Gc This acqusssncs Ia consistent
with the position / have hitherto assumed &c. The
pssentmen-hs trial Of which have hitherto opp0ssd-
Is in effect allowed by the Bishop aud the Bishop has
provided for the constitution Of Board for the trial Of it,
Objections that heretofore have been vital TO my
n t. trial at once and 'g,. s sss Soss the
you, hereby reversed" In subsequent let
ter he said III shall do that which will permit
the court proposed to exist shall comply with
the intimation of duty aforesaid given BY you,
by selecting five from said kst" &o &c lie urged the
Bishop parcuary AMI urgs.y to request them to serve
nd tn Em thats ,lch his idad
and sarnAt wish 10 after this that the other pro-
ceengs had, ana ths trial proceeded On the trial.
the oDeared IN person. and BY his counsel
ineo the Witnesses and proceeded throughout without
raising the obec ions now put forth but he
ing into effect his intention of reverencng the Bishops
judgment BY the submission of his will. Under
these circumstances, as the objection was one which
the plaintiff might waive without affecting the capa-
city of the Bishop TO act and which might have
been thus obvaed he must by every dictate Of good
faith and sound principle Of law b. regarded hav-
ing waived it. The objection which have been
sideripg relates to the action Of the standing Com
ntee before the defendant became bishop. The other
which goes 10 his capacity to act, Is that Onder-
donk bishop, and therefore it incompetent
for the defendant to organize the Court for trial
This also, the plaintiff must, upon the principle,
be considered having waived; for when he satisfied
by the defendant that he was about proceeding on the
charges instead Of obecng to his power to proceed he
a,oveo his desire and willingness to be tried In the Ian
guage have already quoted, and he added = The pro-
ceedings contemplated will be under and in virtue OF
episcopal ordering The episcopal judicial mind IN our
system inherently necessary, will impress each judg
m.nt gven.r To this he superadded long protracted
trial, without raising the objection now relied
upon sno ! am obliged TO apply TO sucs conduct
the same rule Of law which daily applied to other
actions lite The ruls IL not technical one 1t Is
founded good and aims at enforcing good faith
In the Of hfe and discover reason
why IL applicable to clerical rs IL Is TO lay mat
teIs These the only objections in this which
am at liberty consider The refusal Of the defendant
10 itue commission take testimony, bis refusal TO
grant new trial, the alleged misconduct Of one Of the
Court &c, all matters which relate to the mode Of
proceeding and not ~ the right 10 proceed and repeat
that IL the latter alone that take any cognzsnco Of
In this view II the case must deny the mo ton for
njunc'ion and dissolve that which restrained the pro
coedinys 81 the delends Mt until this time,
Before Hon. Judge Ira Harris without Jury.
THB BROADWAY KAILROAD-TIIlRD DAY.