Commonwealth ex rel. Fischer v. German Society

The opinion of the court was delivered by Rogers, J. The examination of the authorities cited and the argument of counsel have convinced us the judgment must be reversed and a peremptory mandamus awarded. All the causes of demurrer, with the exception of the fourth, are fully sustained by the cases. The law in this State is the same as in England and our sister States. All that is decided in the Com’th v. The Pike [255] Beneficial Society, 8 W. & Ser. 247, and Toram v. The Howard Beneficial Association, 4 Barr 519, is, that we will not reverse the proceedings of a corporation upon the merits, when acting within the powers granted by the charter; and not that the regularity of the proceedings is not open to inquiry. Mr. Justice Sergeant, in 8 W. Ser. 251, explains the true distinction, in language so clear and explicit, that it is surprising it should have been misunderstood: .“The courts entertain a jurisdiction to preserve these tribunals (corporations) in the line of order, and to correct abuses; but they do not inquire into the merits <?f what has passed in rem judicatam, in a regular course of proceedings.” That distinguished judge never intended to interfere, as was strangely supposed, with the well-settled principle that the fact of amotion must be distinctly shown in the return, that the court may judge of its sufficiency, both as to the cause and the form of the proceedings. Judgment for the Commonwealth, and peremptory mandamus awarded.