[150] Dean (A.): “Manual of Medical Jurisprudence,” Albany, 1840; Dean (A.): “Principles of Medical Jurisprudence,” Albany, 1854: Elwell (J. J.): “Medico-legal Treatise on Malpractice and Evidence,” New York, 1860; 4th ed., New York, 1881.
[151] “Medical Jurisprudence.” Phila., 1855. 4th ed., edited by R. Amory and E. S. Wood, 3 vols., Phila., 1884.
[152] “A Medico-legal Treatise on Malpractice and Medical Evidence,” N. Y., 1860; 4th ed., N. Y., 1881.
[153] “The Jurisprudence of Medicine,” etc., Phila., 1869.
[154] In that case (Bailey v. Mogg), the Court says of that statute (Laws of 1844, p. 406): “The triumph was now complete, for the legislature had made every man a doctor, and nostrums of every description and admixture could now be safely prescribed, and payments therefor exacted by authority of law.”
[155] Notwithstanding these statutory enactments, it has been held that one who undertakes to cure disease by rubbing, kneading, pressing, and otherwise manipulating the body (massage) is not liable for having violated the provisions of the statute against practising medicine or surgery without a license. Smith v. Lane, 24 Hun (New York Supreme Court), 32.
[156] Analysis of this decision shows that the main ground, upon which the court of last resort sustained the right of the applicant for admission to be admitted as a member of the society, was, that the provisions of the by-law in question were not specifically made applicable to a person applying for membership. The Court observed, pp. 192 et seq.: “The regulations embodied in the so-called code are admirably framed, and commend themselves to every reader, as tending to raise to a still higher elevation the character of the learned and honorable profession to which they were submitted for approval and adoption. They are not limited in their scope to the range of moral obligation, but embrace express rules of conduct, in personal, professional, and public relations. They are regulations in the various departments of morals and manners, of courtesy and etiquette, of delicacy and honor. They bind those who pledge themselves to their observance, but cannot be recognized in law, as conditions precedent to the exercise of an honorable profession, by learned, able, and upright men, who have not agreed to abide by them. The non-observance of such regulations may be made cause for exclusion or disfranchisement; but it must be either by the agreement of parties or by the exercise of the law-making power.
“The applicant was not a member either of the American Medical Association or of the Erie County Medical Society, at the time of his alleged deviation from the formulas prescribed by these conventional rules. He was under no legal obligation to observe them, and had neither actual nor constructive notice of their existence. Those who were members of the society could not lawfully be expelled for antecedent deviation from the code (Fawcett v. Charles, 13 Wend., 477). Much less could such deviation be alleged, as cause for exclusion, against one who had never agreed to be bound by it, and as to whom it was not merely an inoperative but an unknown law.
“As the relator demanded admission to the enjoyment of a franchise to which he was presumptively entitled, his exclusion could be justified only by facts repelling the presumption that he was duly qualified for admission, or by extraneous facts, showing that, if his application was granted, there were then subsisting causes, making ‘a clear case’ for immediate expulsion (Ex parte Paine, 1 Hill, 665).
“The burden was upon the appellant to establish affirmatively the existence of such present cause for expulsion. The society waived the right of making a return and taking a formal issue on the claim of the relator, to be determined as matter of fact by a jury, under the direction of the court; but submitted its objections in the form of affidavits, which failed to establish cause either for exclusion or expulsion.