The question is, ought the plaintiff, on the facts appearing on the writ and return, to have the relief sought.
Several objections were taken in argument to the sufficiency of the writ, which it is proper should be considered.
1. It is said, that the plaintiff does not shew, that at the time of this application, or even at the time of the amotion complained of, any corporation existed.
To this objection it is sufficient to reply, that it is alleged, that in October, 1825, there was, and for more than thirty years antecedent thereto had been, such a corporation, established by the legislature of the State. As one of the attributes of a corporation aggregate, is immortality, it is a sufficient averment of its continuance.
2. It is objected, that by the act of incorporation counted upon, in the plaintiff's writ, it does not appear, that there was any such office as that of trustee; or that to such office, if such existed, any rights, duties or privileges appertained.
The writ avers, that the corporation or body politic was established by the name of the Trustees of the Academic School," &c. ;-that the plaintiff was one of the trustees, duly elected, and in the exercise of the office and enjoying the rights and privileges belonging to him as trustee ;-that nine of the trustees, being a majority, were present at a meeting on the 14th of February, 1826, and removed and expelled the plaintiff from his office of trustee. These allegations are sufficient, on a trial on the writ and return.
3. It does not allege the tenure or duration of the office. This objection has been already answered.
4. The writ is directed to the individuals composing the corporation, and not to the corporation by name. Rex v. The Mayor &c. of Rippon, 2 Salk. 433, is the only authority cited in support of this objection ; but it by no means establishes it.
*544These objections are thus briefly considered, because there is one answer to them all, which is quite sufficient; they come too late. There is no authority from cases of mandamus or others, which can uphold, in this stage of the proceedings, such merely technical objections. In Rex v. Mayor of York, 5 Term Rep. 66. 74. Lord Kenyon and Mr. Justice Buller concurred in declaring, that such objections could never prevail, if taken after the return to the mandamus :-they should have been urged in liinine," on a motion to quash. This is a very reasonable rule, and accords with the analogies of the law.
But on the merits of this cause, other questions of importance arise. In deciding them, it becomes material to look into the power and privileges of this corporation, and to the rights of the members composing it.
By the charter counted upon in the writ, and recited in hisce verbis, in the plaintiff's replication, it appears, that in May, 1784, Gen. John Douglass and others, who had established a school at Plainfield, and erected buildings for its accommodation, applied to the genera] assembly for an act of incorporation. A charter was granted; and the petitioners, who may be fitly called the founders of the school, together with such other as they should elect, not exceeding thirteen, and their successors, were made a body politic, capable of holding property of a certain annual value ; of suing and being sued of managing the affairs of the school ; of exercising other powers usually conferred on corporations and also of filling all vacancies made in their number, by the death or removal of any member or members. It gives also to the trustees the power of displacing or superseding, at their discretion, all persons appointed by or under the corporation.
The first objection taken to the interference of the superior court, is, that this being an eleemosynary corporation of private endowment, it belongs to those who hold the visitorial power to controul these trustees, and not to this Court. That this is an eleemosynary institution for the purpose of dispensing charity, in the education of children is true. 1 Black. Comm. 471. Philips v. Bury, 2 Term Rep. 352. Dartmouth College v Woodward, 4 Wheat. Rep. 518. That the founders of it, might have appointed visitors to controul it, is not denied; but they did not, unless these trustees are visitors. On the contrary, they solicited of the general assembly the establishment of a corporation, with powers to manage all its concerns. The general *545assembly granted their request; and the trustees appointed under that act, were part, at least, if not the whole, of the original founders. This corporation, then, is the creature of the law ; and possesses such owers as the legislature conferred on it, with incidental powers to execute those given. The original founders are merged in the corporation ; and henceforth it is to be subject only to the general law of the land. Neither the original founders, nor the general assembly can rightfully exercise any authority over it, by exerting a controul over these trustees, or appointing visitors for that purpose. 1 Burr. 199. 4 Wheat. Rep 674, 5. per Judge Story. President Clap’s History of Yale-College, 70. 75.
If this doctrine be correct, then this corporation is uncon-troulable, except by the laws of the land, to be administered by competent tribunals. Can then, these trustees visit themselves; be visitors and visited? I think not, on the ground of authority. The King v. Bishop of Ely, 2 Term Rep. 338, 9. The King v. Bishop of Chester, 2 Stra. 797. It appears to me also, that there is an intrinsic difficulty in supposing the visitorial power vested in the body of trustees to be exercised over and toward each other.
It is however said, that by the clause in the charter, vesting the trustees with power to fill vacancies occasioned by death or removal, they have the power of amotion, without enquiry or conviction, for malversation, but at their discretion. It is certainly difficult to maintain this proposition. The remoral there mentioned, isa change of residence so as to render it inconvenient for the trustees to act; and besides, it is provided by the charter, that seven of the trustees shall be resident freeholders of Plainfield. Moreover, the trustees are vested with power to displace, at pleasure, any officer appointed by them ; but no power is given them of removing each other ; and such a power would be as unfit as it would be novel.
It is further urged, by the defendants, that if the charter does not, in terms, authorize a removal, yet this power is implied-it is incidental for self-preservation. In support of this idea Lord Bruce's case, 2 Stra. 819. Rex v. Richardson, 1 Burr. 517. 538. and Rex v. Lyme Regis, Doug 149. are cited. It is, indeed, laid down in these cases, that such is the modern doctrine ; but what were those corporations ? 1 he whole body of a city or borough; and the officers, whom it is said that the corporation might remove, were chosen or appointed by the *546corporation. But in relation to the trustees, in whom is vested the visitorial power of an eleemosynary corporation, Story, J. in the case of Dartmouth College, says, (page 675, 6.) there can be no amotion of them, though they are subject to the general law of the land. Be this, however, as it may, can such a removal be made, without sufficient specific charges, and passing upon them judicially? I am satisfied, that this question must be answered in the negative.
Here several points made in argument need not be discussed, viz. that the plaintiff had no notice of these charges ; that no testimony was produced; that a majority of the board was not present, when the act of removal was passed. These may all be laid out of the case ; because the grounds of removal set up in the return are insufficient to warrant an expulsion.
They are all capable of being reduced to two, viz. disrespectful and contemptuous language towards his associates; and neglect of duty as trustee.
First, as to the language, if uttered, as stated, it was indeed highly indecorous, and deserving of the censure of all honourable men ; but this Court cannot justify an expulsion from office on such charges. What these trustees might have done to one of their number, who had committed a crime, which would banish him from society, it is not necessary to decide. Secondly, neglect of duty as a trustee. The only instance of such neglect specified, is, in not performing his duty as one of a committee of the board in relation to one of its concerns. It cannot be seriously insisted, that such an omission should subject him to amotion.
It is further urged, that there are no emoluments attached to this office; and of course, that the plaintiff ought not to have the aid of the Court to restore him to it.
In Rex v. Barker & al. 3 Burr. 1266. Lord Mansfield said, “that mandamus is the proper remedy, where a person is dispossessed of a right to execute an office, perform a service or exercise a franchise, more especially if it be in a matter of public concern, or attended with profit.” This is a case clearly within that rule. The plaintiff could not sustain an action at law, because he has sustained no pecuniary loss; but it is not hence to be inferred, that he is not entitled to a mandamus. It is taking quite too narrow grounds, to say, that a person improperly removed from such a franchise, is remediless. It results then,
*5471. That if the objections to the writ of mandamus are of any force, they come too late.
2. That these trustees having been incorporated, at the request of the original founders, have the powers, and only those, delegated to them in the charter, expressly or by fair implication ;-that the trustees are the only visitors of this academic school; and that they are subject to the general law of the land, to be administered by the superior court.
3. That the trustees cannot be visitors and visited.
4. That if the trustees have the power of amotion, as incidental and inherent, they cannot exercise it, except for just cause.
5. That no just cause is shewn, by the return. And
6. That a mandamus is the proper redress.
The superior court is, therefore, advised to issue a peremptory mandamus to restore the plaintiff to his office of trustee, from which he has been illegally removed.
The other Judges were of the same opinion.Peremptory mandamus to be issued.