case Bellamy against upton quere if money due by a consignee for the fraught  of good be liable to be attach in his hand by the custom of foreign attachment  in part payment of a debt due to a three person from the captain who sign the  bill of lade after he have deliver the good so consign into the hand of the  garnishee Bellamy in the sheriff court London be plaintiff against Morley in a  plea of debt upon demand of fifty pound nec non de attachiamento superinde  fact de fifty pound in money count ut de denarius dict defend not common with  others in shades of dead et guard John Upton and assistant et defence c and  upon nil to have plead by Upton the jury find that the say Morley at the time  of make the attachment c be master of the ship call mounteagle and that the  garnishee have to visit good et catalla in dictam nave load to the say  garnishee from part beyond the sea consign and that the fraught thereof amount  to thirty pound that there be no charterparty make between the defendant  Morley and the say Upton that Morley have sign a bill of lade for the say good  to be deliver to the say Upton or his order pay first for the same that the  good be deliver to Mr Upton accord and if the aforesaid thirty pound be due to  Morley pro fare bonor pillage load in nave pillage tunc to say quod Upton to  have et to have in shades of dead nest parcel pillage quinquagint a balance in  prediction teaching de to know facias mentionat ut de denarius speech to ward  off not common with others et si pillage non are debit pillage defend pro fare  predict quod tunc pillage Upton premuniet pillage tempore attachment pillage  fact seu unquan postea hucusq non to have to withhold nec in shades of dead  nest to hold off nec modus to have debet seu in shades of dead nest to hold  off pillage ut de denarius speech defend not common with others or aliquan ind  parcel prout pillage queren in pillage teaching de to know facias superius to  put below c shower KB argue for the plaintiff before Mr do you judge of the  sheriff court the general question be if this attachment lie and if these  money be attachable to prove the affirmative it be considerable that the law  make a contract for fraught as certain upon a bill of lade as upon a charter  party to make this actionable the duty I agree must be certain or reduceable  to a certainty as here it be by this verdict the garnishee must be the debtor  or man Chargeable and the defendant the creditor or person who be to demand or  receive it and here be all three concur as to the sum here the jury find it  certain that the fraught amount to so much the jury find the delivery of the  good to the garnishee accord to the bill of lade a and by Ann c this statute  be extend to judgement upon confession nothing to say or non sum shape and it  be also enact that the default of allege of the bring into court letter  testamentary or letter of administration shall not impede the judgement except  the same shall be special and particular set down and show for cause of  demurrer see also the case of Crawford v Whittal dougl notorious facts shower  KB er p though no sum at first agree on yet it be a certain debt as for good  sell and no price determine and agree upon and so it be in case of a quantum  to deserve for service do and the reason of these case be because reduceable  to a certainty both in plead and evidence here fraught be debt is owed in the  strict large and every sense of the word the garnishee be liable for this  fraught though the good have not be deliver accord to his order though the  good be not in his property yet they must be deliver to he or his order and  the performance of the bill of lade be the foundation and merit for the  fraught and that be find to be fulfil but here by the bill of lade the  property accrue to the garnishee in the very good and he may maintain a action  for not deliver they then though no person be name in the bill of lade to who  the fraught be Payable yet the law ordain and direct it to the master it be  true the owner be liable upon miscarriage of the good but that be in a remote  degree the first and immediate visible person take notice of be the master so  be it for wage the owner may be sue but the master be the first liable upon  the retainer and the master be first liable he be first entitle to the fraught  beside it do not appear that there be any other owner but the master and you  can intend such a thing when it be not find if no charter party the master  stand liable to the owner for the fraught and consequent he must have remedy  against the importer a attachment lie though the thing be such as a action on  case lie for as in the case of sir Nich halse v walker a lend money to b to be  repay by b at the death of his father and after such death the money be attach  and then a action on the case be bring and the attachment hold a good bar  though the custom be only to attach debt and the action on shower KB the case  and only damage in it be recoverable yet good because debt may have lie for it  as well as case the next case there be read v Hawkins a man sell stocking on a  particular contract by which the vendee be to give he ten pound and if he sell  they again before August to pay two penny more hold that the ten pound be  actionable present because that be certain and debt lie for it attachment be  favour even against the privilege of atorneys as in Turbills case sand and in  side a debt Payable in going to be hold attachable in debt for tobacco c hold  not attachable because the value do not appear but if the value of the tobacco  have be aver the debt may have be attach pretty v Colcott roll Abr now though  no sum be particular agree on yet debt lie as for a surgeon or a carpenter or  a attorney Woodhouse v Bradford roll Rep cro James raze Ent to put a strong  case if I pay money to b to the use of c either b may have a action for it or  a Hutton and if debt lie it be attachable in the case of Mollan v Herne keb in  a quantum to deserve attachment hold pleadable though other exception be c  money in a man hand may be attach as if money be leave to be keep or if the  garnishee find it and no contract be to be find a action of debt lie here be a  special conclusion if the money be due to Morley for the fraught now that be  plain due to he no owner be find especial the good be find to be deliver  accord to the bill of lade then the question be no more than this whether a  indebitatus will lie against the bailee for fraught without allege a  particular custom of merchant and I conceive that it will even without set  forth a bill of lade if another retain I to build a house for I S and I S  agree to it and I build it be not I S liable to a indebitatus for the money if  these good be carry for the use of Mr Upton the law raise a promise suppose it  the case of a common carrier and it be plain now the master of a ship be but a  common carrier by water and answerable for loss by theft as be the case of  Morse v sluice in hale time a the reason why money Payable upon bill of  exchange be not actionable be only because of their negotiation because they  may be transfer by endorsement and be by law transfer it may be of infinite  prejudice to three person who pay the money upon sight of the bill here for  any thing appear the master be owner and consequent only Chargeable in case of  miscarriage of the good and consequent only entitle to the fraught and shower  KB therefore this money be well attach and the plaintiff ought to have his  judgement and money for fraught have often be attach though never upon debate  a see Mod shower KB er p Mr Upton e contra argue that the sum be uncertain the  party to who Payable uncertain for either owner or master may sue and though  no owner find yet magister ship ex way termini import only the relation of a  governor of a ship as a servant to the proprietor so Mr do you start a  objection in the verdict that there be no find non to have as to the residue  of the fifty pound attach and consequent a imperfect verdict and therefore the  plaintiff can not have judgement but a venire facias de to make new ought to  issue et such to stand One causan see roll Abr accord shower KB trinity term  the four of William and mary in the king bench sir John holt Knt chief justice  sir William dolben Knt sir William Gregory Knt sir Giles eyres Knt justice sir  George Treby Knt attorney general sir John summer Knt solicitor general Exeter  college case shower KB er er report date case fillip against bury or the case  OF exeter college Hilary term William and mary roll SC show p c refer to Boyd  v Phillpots lr ad e lr p c comb v de la Bere p d Exeter college consist of a  rector and scholar a general visitor be appoint to visit by himself or  commissary as often as the college shall request and without such request once  in five year with power to deprive the rector or expel any of the scholar with  this qualification si yet ad deprivationem guide or expulsionem scholar alicuj  per bishop or he commissioner to put in motion then if he can make his  innocence appear he shall be amoved without further appeal dumb yet ad he  expulsionem there shall be the consent of the rector and three of the seven  senior fellow provide that if the rector be remove by the visitor commissary  etian to agree four of the senior fellow he may appeal to the visitor if the  visitor appoint a commissary to examine the appeal of a expel scholar and  afterward within five year he the visitor appoint a visitation in the chapel  and the rector and scholar shut the door against he yet he may afterward  proceed to another visitation and execute his visitatorial power and if the  rector be summon to appear continue contumacious the visitor may deprive he  for contumacy although this be not one of the offence mention in the statute  of the college for deprivation be incident to his office and neither the  appointment of the commissary nor the endeavour to visit be visitation and it  be not necessary when the rector be deprive by the visitor that there shall be  the consent of the four senior fellow the justice of such sentence be not  examinable in any court of law for the founder have make the visitor the sole  judge SC skin SC comb SC holt SC Mod SC ld ray a ejectment be bring against  the defendant dr bury by one Robert Philips who declare upon a demise of  William painter rector of Exeter college and the scholar of the same college  of a certain message call the rectory house situate within the parish of saint  Michael within the city of Oxford to hold from Michaelmas which be in the  second year of their present majesty until the end and expiration of five year  then next follow that be enter into the premise and be possess till the  defendant eject he to this the defendant plead that the say message at the  time of the action bring and long before be the freehold and soil of the  rector and scholar of Exeter college mention in the declaration and that the  say defendant long before and at the time of the suppose ejectment be and yet  be rector of the say college and by reason thereof the defendant in right of  the rector and scholar of the say college into the say message with the appur  shower KB er p tenant at the time of the trespass and ejectment allege in the  declaration do enter and the say Robert Philips do remove as he lawful may and  then take a traverse that the say William painter then be or be rector of the  say college call Exeter college in the manner and form the plaintiff have  allege to this the plaintiff come and reply and confess the say message to be  the freehold and soil of Exeter college but say further that at the time of  the say trespass and ejectment the say William painter be and yet be rector of  the say college whereupon there be issue join and a trial have before the  justice in the king bench and thereupon a special verdict be find the jury  find that Exeter college be and be one body politic and corporate by the name  of rector and scholar college exon infra university oxon that by the  foundation of the college there be law and statute by which they be to be  govern and that the bishop of Exeter for the time be and no other at the time  of sound the college be constitute by virtue of the statute concern that  matter hereafter mention ordinary visitor of the same college secundum terror  et execution set up she remember to mix that the bishop of Exeter who now be  be visitor accord to that statute then they find the statute for the election  of a rector prout c then they find the oath require of the rector that so long  as he shall remain in that office he shall be true and faithful to the college  and its land tenement possession ecclesiastical and secular right liberty and  privilege and all its good movable and immovable will keep and defend and all  the statute ordinance and custom of the college he will observe and endeavour  that they shall be observe by all scholar graduate and undergraduates c that  he will occasion no trouble or grievance to any of the scholar contra the  whole of the laws charity et brotherhood but accord to the best of his  judgement and conscience he will cause due discipline to be use accord to the  form of the statute of the college that he will maintain and defend all suit  for the college but never begin one wherein any disadvantage or great  prejudice may happen to the college without the deliberate consent of the  major part of the fellow and if any variance happen between he and the scholar  and the same be not end within ten or twenty day by the subrector dean and  three senior scholar of the college that then he will stand to the direction  of the chancellor or in his absence of the vicechancellor or his commissary  and his award will faithful observe et si to touch I in descendants near of me  defect seu cause in set up content juxta form statutor ab duty meo drive out  sea alias anoveri omnibus et one law et fact remedy per who well who to strive  for I to be able to procure again well in integrum restore daughter of the Sun  to send forward as far as other uprightness et vitae merit I to favor in vim  bargain renuncio in his scribe and that he will observe the statute accord to  the plain grammatical sense c then they find another statute si quis scholari  well elector be convict of adultery incontinency heresy Pertinax wilful  homicide manifest perjury frequent drunkenness alteriusque public officer  ugliness before the rector subrector dean and five other senior scholar or the  major part of they with the consent of the say rector he shall be Self facto  expel no one alian monition to send forward and in the same statute which be  entitle de cause near quas scholar to bereave to withhold et de dissentionibus  sedand it be far establish quod si aliquan discord iris i violent or noisy  quarrel or dissentionis means quod absit in speech college springing up sit no  matter how inter whoever scholar or elsewhere in speech college a delay nisi  such dissentiones intra One they intra see harmoniously tunc quickly  cautiously et melius quo become poluit per predict guide well in he absence  subrectorem et tres scholar ex present circumstance in college entirely older  man intra two days sede et pacifice hujusmodi dissent si yes Self ad eand  sedand von to put under tum rector assumpto Himself subrectore celebrate by  singing et other five scholar entirely older man per quos spit sedar to be  able summary et de plano she examinate sicque Finis discord iris i  dissentionis et quarrel hujusmodi favor partialitate iris i hatred et hate  whoever to be remiss intra tres die gliding that two days immediate to follow  to place upon et whoever rector cuin pillage well major part the same to lead  to order et agendum per part discordant really in army the dawn oath to watch  et performance without contradiction pron  interrog  demande nec liceat some  de speech college pron  interrog  gradus or status to stand out occasion  violent or noisy quarrel quarrel or dissentionis intra dictum collegium or  extra intra the same birth well notorious facts prosecutionem to make or  shower KB er p lawsuit aliquan to move well once to rush upon or ad judgment  to draw in person to some place judge extrinseco Church rites well secular  send to will entirely quod hujusmodi quarrel iris i violent or noisy quarrel  discord et dissentiones who per God agreeableness seldom or never contingent  per personas predict aliquan ordination good seu concurrence agreement to set  bounds et finie the jury find that from the foundation of the college there be  and yet be quidam ordo scholiarium peremptory or urgent call very et  continuous scholar and that by the statute every scholar who have pass his  probation year and be approve to be a true and perpetual scholar shall take a  oath before the rector or in his absence before the subrector c to observe the  statute of the college and to endeavour that other observe they too or  otherwise to undergo the penalty on they inflict without contradiction accord  to the true form and effect of these statute to obey all injunction exposition  and construction by the reverend bishop successor of the first and original  founder super doubt set up to bring forth ad the same bishop ex general  consensus guide et majoris birth scholari honor to make to be true to the  college neither to do nor wit to suffer to be do any prejudice damage or  scandal to the same to obey assist and reverence the rector subrector c and  other superior scholar in bid on ac distinguished et maxim in the dawn  assembly et in pain college quatenus to cause to stand imposed or requirant  effectual to obey all direction and order of the rector subrector c to  maintain and defend the right and liberty the honesty and good fame of the  college and its scholar c item si to touch I after this per guide or in  hujusmodi rebus to have interest shoelace et to punish or a speech college  sustentation cast out et drive out to shut out to bereave well anoveri praeter  of me perhaps defect Self guide seu alias personas seu the dawn once occasion  expulsionis well amendment hujusmodi never to follow molestab well inquietab  per I other well elsewhere seu ab other attendance well is troublesome seu to  disturb she de causan quantum in I to be let through send of one simpliciter  well absolute omni act contra guide or elsewhere speech college scholar quomo  dolibet appeal et complaint in she part to make ac whoever literar  impetrationi prayer Princeps one that prefers nobles great man et another  whoever who post ad law distinction et possession to assert a claim to to  procure again ac whoever law et fact remedy per who I to strive for possum  integrum restore as far as alias I uprightness et vitae merit to favor in vim  bargain report to be just and impartial in election of scholar not to reveal  the secret c not to desert the college to be of another without licence c the  jury further find that accord to the statute there be probationary scholar who  be to be such for a year before they be admit to be true and perpetual scholar  and that every one choose in for a probationer shall swear that he can certain  expend above four mark per annum to be true to the college and not to reveal  secret to its scandal prejudice or danger not to make or procure any  conventicle conspiracy or contract against the ordinance and statute of the  college or the honour of the college or the rector c to promote peace there et  si to touch I quod absit juxta form et urgency statutor a predict college  drive out seu anoveri per guide et alias person in hujusmodi expulsion  interest to have c in like manner as the perpetual scholar swear then the jury  find the statute de visitation recite how prone mankind be to evil and time  change the best thing and that it be impossible to make law but by  misconstruction fraud or other practice may be dissolve that he confide in the  bishop of Exeter his successor quos speech college patron et visitor  relinquimms that those who be bring thither through fervent charity be inflame  with Christian faith may watch to the preserve that nursery that the statute  and ordinance of the college may be studious observe virtue and learning be  nourish their possession and good spiritual and temporal may flourish their  right liberty and privilege may be defend Ea de causan liceat lord bishop exon  who pro tempore to be et no one some nec other how often per guide speech  college et in he absence subrectorem et quatuor elsewhere ad minus ex seven  maxim older man scholar to be require nor without requisitione any de period  of five years in quinquennium semel ad dictum collegium per see well suum  commissar who to lead depuntandum freely to go to who indeed to stand in awe  of he give full power upon all article in the statute contain and other  article concern the estate honour or profit of the college to interrogate and  examine the rector scholar and elect and to compel they by oath and censure if  need be to say the truth and all crime and offence of the say college  whatsoever shower KB er p undertaking et in she visitation experience accord  to the quality of the offence to punish and reform and to do all thing  requisite quoad the dawn amendment et reformationem even if ad deprivationem  seu removal guide subrectoris or of one another cujusquam ab administration  svan well duty sive ad removal alicuj scholar well dainties ab eoden college  set up et in ranks id to drive out to go before to touch stat insuper that  none in speech visit in speech college faciend contra guide subrectorem or  once other Self college quemcunque dedicate to lay seu denunciat nisi quod yes  to give as a loan seu de quo publican vox well hunger to labor contra the same  in army oath ab eastern prius college a protector to order to go by ut dominus  bishop exon cum in mask not common with others to go to see or send ahead or  forward to make to deem worthy rector et two scholar ex present circumstance  maxim older man One in college restoration forty solido expenditure non  excedent eiden bishop abjectly et reverently to bring before commissioner  autem cum to send forward to make two restoration in college well twenty solid  figure per manus guide de good college pay to go away pro omnibus laborious et  expenditure in haec causan tam in journey how in university tempore what visit  and so dominus bishop quadragint solid commissar yes twenty solid in to make  one et eoden year pro sharply visit ad cost college non to nec beginning  aliquan visit ultra duos die proxime to follow or ex cause urgentissimis et  rarissimis ultra tres die to prolong or continuar any bargain to will send  gliding et right of way for cattle there two days et when de cause predict  beyond proroga triduo stab she self visitation that pro terminate et loose to  have et si who in she to obtain knowledge of to make straight et to shape  again who shortness time to make straight et to shape again non to be able she  guide in scribe to give up who she in all respects secundum form et urgency  statutor without dilation quantum in eastern to be to make straight et  reformar to hold subpoena contempt then in the name of jesus and as they will  answer it at the last tribunal that neither for fear hatred favour illwill  well prece well price they do or neglect to do any of the premise c to cause  to stand to go by ut rector subrector scholar or the quispiam pron  interrog   lot speech college super departure well fault in visit et search per dictum  Episcop exon well he commissioner ut permittur to make to call to account well  uncover copy compertor well revealer hujusmodi hand over or to stretch out or  nomina detegenti non ostenda send sup the same experience or uncover statin in  person bishop well he commissioner of to answer ac amendment debt is owed to  come under pro the same second tenor set up to be remiss whoever challenge  appeal complaint et other law et fact remedy per who Self amendment et a  punishment to bring away seu to entangle to be strong si yet ad privationem or  inhabilitatem guide or expulsionem scholar alicuj per bishop or he  commissioner to put in motion tum ostenda ei fault who si non to be able  reasonably et honest to answer suamque harmlessness commendably to stretch out  et seize super interposing just purgar to move away without appellation or  ulteriori remedy provided ad he expulsionem to run together consensus guide et  three ex seven maxim older man scholar tunc in university present circumstance  without quorum general consensus ineffective sit hujusmodi drivingout et no  one Self facto et in sup si contra guide ad removal ab duty per hujusmodi  domini bishop commissioner etian to agree quatuor ex seven maxim older man say  in addition to to go before non to say no ei all men exception desentiones  legitimate et honor at Self dom bishop exon provided beyond non appellate non  to stand before here ordination prediction or other whoever the jury further  find that in another statute near quas cause rector duty to bereave debet it  be thus cum good providoque guide nothing sit usefully advantage et ignorant  play the fool unworthy inside difficult to handle guilty man nothing sit  detestabilius to cause to stand ut sector whoever near the earth property  reddituum possession Of or of a time svan offense understatement seu  transference of ownership well near removal removal transference of ownership  illicit will do you much good et a thing Self college disgrace adultery  incontinentiamque heedlessness unable to endure heresin Pertinax homicide  volunteer perjurium palpable crebram drunkenness et near longiorem absence a  college how to cause to stand to let pass well management Himself Himself duty  per generosity dishonor data to hand over well promise well wherever way or  modus forbidden et near usurain simony aliamve causan Self guide To give back  criminalite irregularem well aliter inside difficult to handle nor near  infirmatem infectivam et contagious perpetuan pron  interrog  occasion non to  be able without temptation to sin duty hujusmodi to drive ab eastern inside to  move away a dcujus removal hoc modus to go before videlicet ut statin well  salten inter quindecim die after to some degree praemissor pity well in the  dawn shower KB er p some incident primo per subrectorem may stand erect ei  five scholar maxim older man speech college to move rector eique good account  suadea ad voluntary to go from duty quod si of one inter triduum to go from  not tunc intra eight die post hujusmodi admonition subrectoris assent et  testimony all perpetuor scholari speech college well salten majoris birth  eorundum denunciabit lord bishop exon who pro tempore to be per duos Self  college scholar entirely older man cum letter to some place seal original  document ac battle standard subscription alicuj writer of shorthand public  officer Greek letter sigma well salten loco seal original document  subscription subrectoris ut prefertur majoris birth scholari ac writer of  shorthand public officer battle standard fortify strongly cause diminution sin  departure well irregular rectoriis essential point proviso quod all men  hujusmodi attestant ac testimonium to bring forward prius touch sacrosanct God  Gospel in person subrectore Self at first id in person strike against  presentante ac then a one the dawn id exiqente jurabu quod non per hate ill  will odium well fear nor for love nor honour of any other to be promote to the  place nor for emulation nor envy or by conspiracy or the procuration of any  other they do testify it but mere from a good zeal and love for the college  and the good estate thereof that the bishop or his vicar de cause sin  departure et diminution contra guide mode of life to take de plano et extra  noise judicialem understand and if by sufficient proof be find the accusation  true he shall immediate remove he from his office and administration and  enjoin the scholar to proceed to the election of a new rector accord to the  form of the statute aforesaid to be remiss appellationibusquerelis or pron   interrog  of one another law fact remedy who hujusmodi removal to be strong to  entangle or to carry apart who in all respects ineffective be to will to cause  to stand to decide Self facto the jury find further that queen Elizabeth on  the first of march in the eight year of her reign make this house which be  before a hall to be a college and confirm the statute and constitute they a  body corporate and that one sir William petre be Willing to supply the want of  the college make addition to the revenue and to some defective statute c then  they find that before the time of the demise in the declaration videlicet  october I will and mary one James Colmer A M be convict before the rector  subrector and five senior of incontinency with one Ann sparrow and therefore  be expel that he appeal to the bishop of Exeter that saint of February he make  his commission to dr master which commission be find in haec word recite that  it be complain by c that he be unjust expel and therefore appoint dr master to  bear and determine the same that the commissary proceed to the execution of  that commission and of Mars he come to the college and sit in the chapel with  a notary public and Colmer appear and the rector and the rest do not then he  adjourn to the hall and summons all the party to attend there and there dr  bury make and exhibit a protestation in write under their hand set forth the  oath of a fellow not to appeal and protest against his authority to examine it  thereupon the doctor proceed and examine the fact ex part and reverse the  sentence and restore Colmer videlicet march because the process be not  transmit then they find that the that of may the bishop issue his citation to  the rector or subrector for a general visitation to be hold the that of June  in the chapel of the college and accord the that of June the bishop come to  the college and to the door of the chapel which be shut up and that the porter  be subject to the government of the rector and bind to obey his command in  shut or open the door and certain of the scholar do then offer in arean  college a certain write under their hand protest against the visitation as  within time by reason of dr master visitation this be refuse by the bishop the  bishop then administer a oath to Webber of the service of citation and then he  call over the name of the rector and scholar who appear not and not be admit  into the chapel he depart then upon the saint of July he summons a visitation  upon the that of July and the d of July the rector c protest against the  intend visitation insist on their statute which by oath they be bind to  observe and this under their common seal then the bishop upon the that of July  receive the protestation quatenus de jure then they depart refuse to agree to  his visitation ten of the fellow appear and submit the rest be pronounce  contumacious for not appear then he administer several interrogatory to  discover matter of accusation against shower KB er p the rector and fellow in  the afternoon the absentee be call again and declare in contempt and the  follow suspend and adjourn to the that and then dr Herne be deprive for have a  live inconsistent with his fellowship dr bury be pronounce contumacious send  de pna in the dawn infligend to lead deliberand then the that he call for the  act sharply a certain in person eastern Decimus sexto die Julii ult lapse die  alias to cause to stand pro visitation what college expedit eundemque sharply  pro part process hunt pain visit to have to decide then he adjourn to the that  and then he deprive dr bury for contumacy with the consent of four of the  seven senior fellow not suspend twelve have be suspend and they find further  that the four fellow which subscribe the sentence of deprivation be not of the  senior fellow unless by the deprivation of dr Herne and the suspension of  George Vernon Thomas Lethbridge Benjamin archer Samuel Adam and Philip thorn  all which six half the number of the suspend be senior to the consent scholar  then they find that after this sentence painter be elect into the rectorship  to run together omnibus requisite si predict duty guide eastern tempore to be  to be empty and that dr bury June year James et always postea usque opinion  predict si opinion in contrar non to be strong always postea to be et ad  hucest spit et fixed by law rector college predict that William painter as  rector and the scholar of the say college do make the demise in the  declaration and thereon the plaintiff enter and dr bury enter on he and hold  and yet do hold he out modus et form prout in nark c send strum super totan  means predict locus guide per privation prediction pillage arthuri legitime  vacavi nec ne the jury be ignorant et si per ind locus predict legitime vacavi  tunc pro to seek et si non tunc pro defendant Mr Harrington for the plaintiff  make several query first whether there be a vacancy at the time of the  election of Mr painter second whether the bishop of Exeter at the time when he  deprive dr berry be a competent judge concern a visitor power he cite  Littleton dyer side   light Henry pl Edward pl that the visitor may deprive  the head bro titl deposition Inst style Yelv the rector place be find on the  will of the donor and he take sub modus there they be punishable for breach of  that will Bulst Poph roll abridgment titl restitution Rep three whether the  statute of Exeter college do restrain the visitor from thus deprive the bishop  of Exeter be make patron obtain n b whosoever be settle patron be in loco  fundatoris Henry he be visitor et ordinary visitator I e a continue ordinary  judge now a ordinary judge have immediate jurisdiction de mero jure   light  roll Abr davis Rep of order be who to have not common with others jur his  power be give he with the addition of negative word exclusive of all other  beside it must he agree that eleemosynary corporation be necessary at all time  subject to some visitation or other   bro assiz summa Angelica title hospital  prescriptio tollens visit non valet where there be a local visitor no other  have jurisdiction shower KB Mod Rep prynn on that Inst duke on charitable use  objection that the visitation be to be but semel in period of five years it be  limit answer that the end of the limitation be only for the benefit of a  sportulage that that charge shall be no often but by the commonlaw be may if  he see necessity visit often the ordinary jurisdiction of receive appeal and  determine of matter delegate to he be not hereby restrain this be the reason  why mandamuss have always be deny because they may at any time appeal Goddard  v hide Rushw here the jury have express find that no other have visitorial  power there but the bishop the commission of appeal be not a visitation nor a  determination of that power visitation and appeal be different thing and power  dyer a void act toll not a right fourthly whether the concurrence of any other  person be necessary to this deprivation now these senior fellow be suspend and  that suspension take away their claim to either power or profit latch so that  the next senior fellow concurrence be sufficient then five for the sentence it  be but adequate to the crime surmise and if the visitor have a jurisdiction  then the truth of that surmise be not examinable here Edward pl assize      Davis shower KB er p Mr solicitor Trevor e contra the first question be  whether this sentence be peremptory and for that it be not so peremptory but  this court may examine if regular a particular authority must be pursue if  otherwise their act be void   Marshalsea Edward pl the rector have a right to  his place as a freehold   bag be case   dr Bonhams case upon the statute of  bankrupt in a action the party may traverse the bankruptcy because he have no  other remedy so on the statute of sewer who have power to proceed and act  accord to discretion the proceed of a visitor be extra judicial the visitor  have no power but by the will of the founder his authority be not judicial it  be only a ministerial power where the ordinary be visitor himself of a  spiritual foundation or where the king make a spiritual foundation there the  visitor be judge but a founder of a lie foundation be not a judge and his act  be subject to the determination of the court of justice here dyer Inst    assize Inst Edward in case where the visitor make the original sentence it  must be examinable there because no appeal in case of spiritual shower KB  foundation it be true in Applefords case and those other case they be expulse  by the head or master of college and so they have a appeal to the visitor but  here be none second at this time the visitor have no power of visit accord to  the institution and statute of the college and dr master have visit within the  five year for it be but once in five year that he can visit and though there  be no negative word to exclude any other visitation yet these be the word that  make he visitor and that be but once in five year the act of dr master be a  visitation for there be no power to receive or examine the appeal but as  visitor de period of five years in quinquennium semel the visitor have no  particular express power give he to hold appeal but in one case only so that  this power of take appeal in any other must be as visitor three then that  which they call a intentional visitation be one I e the administer of the oath  be a act of visitation for his do more or less at a visitation be not of its  essence for he be judge of that to do what he please fourthly then further  here be not a sufficient cause for a deprivation the fact call contumacy be  not so and that you will examine for the reason before offer the doctor humble  offer his opinion be not obstinacy or contumacy five then another question be  whether admit it be contumacy if the bishop can deprive he this be none of the  offence mention in the statute for which the rector may be deprive in the  statute de visitation which give a power by general word it refer to the other  statute concern the matter or cause six then the consent of the senior fellow  be requisite which the bishop here have not the bishop have not power to  deprive the rector but upon complaint from the fellow and the college if he  may deprive for any cause not mention in the statute he may as well deprive  without any cause at all holt chief justice suppose the visitor have deprive  he for murder whereof he be not convict there be a great difference between a  lie and a spiritual foundation but a visitatorial power be incident to every  such society and a visitor be the founder own creature and he have make he  sole judge in Applefords case it be hold that the visitor sentence be a  judgement and that it be a judicial act can be no great question Adjornatur to  be argue again it be argue again by sir Thomas powis for the plaintiff and by  blencoe for the defendant and in Trinity term William and mary the judge give  their opinion seriatim holt chief justice b make two question first whether or  no by the constitution of this college the bishop of Exeter have power in this  case to give sentence second suppose he have such a power whether the justice  of this sentence be examinable in this court and he be of opinion that the  bishop have power by the constitution of the college to give a sentence and  have that power a see the case of the king v the bishop of Ely term Rep b see  holt argument in this case take from his own ms term Rep shower KB er p the  justice of that sentence be not to be examine in a court of law upon a action  but S eyres g eyres and Gregory justice c be of a contrary opinion judgement  be give for the defendant a writ of error be afterward bring in parliament for  the plaintiff in error it be argue d that this judgement be illegal and the  general question be whether this sentence of deprivation thus give by the  visitor against dr bury do make the rectorship void as to he and so consequent  give a title to the lessor of the plaintiff but upon this record the question  be two whether or no by the constitution of this college the bishop have a  power in this case to give a sentence suppose that he have such a power  whether the justice of that sentence be examinable in westminsterhall upon  that action and it be argue that the bishop have such a power to give a  sentence and it be agree that he can make his visitation but once in five year  unless he be call by the request of the college and if he come uncalled within  the five year his visitation will be void but yet the visitation of the that  of July be a good visitation and consequent the sentence upon it be good that  there be no colour to make dr master come in march to examine Colmers appeal  upon the visitor commission to be a visitation and that because it be a  commission upon a particular complaint make by a single expel fellow for a  particular wrong and injury suppose to be do to he and not a general authority  to exercise the visitatorial power which be to inquire into all abuse c Colmer  complain that he be expel without just cause and seek to the visitor for  redress they have expel he for a offence of which he think himself innocent  and the visitor send his commissary to examine this particular matter then it  be urge that though a visitor be restrain by the constitution of the college  from visit ex duty but once in five year yet as a visitor he have a constant  stand authority at all time to hear the complaint and redress the grievance of  the particular member and that be part of the proper office of a visitor to  determine particular difference between the member and thus be Littleton text  sect that complaint may be make to the ordinary or visitor pray he that he  will lie some correction and punishment for the same and that such default be  no more make c and the ordinary or visitor of right ought to do this c and so  be it hold in Applefords case in the court of king bench who be expel upon a  like occasion as Colmer be he appeal to the bishop of Winton who be visitor  and he confirm the expulsion and hold to be good upon the appeal for the bear  of appeal be a stand fix constant jurisdiction visit be one act or exercise of  his power in which he be limit as to time but redress of grievance be another  and his proper office and business at all time it be the case of all the  bishop of England they can visit by law but once in three year but their court  be always open to hear complaint and determine appeal so that here though but  one visitation can be in five year without request yet the power and authority  to bear and examine any difference between the member and to relieve against  any particular injury that be continual and not limit then it be argue that  though what be do upon the sixteenth of June be with a intention to visit yet  be deny to enter the chapel where the visitation be appoint to be hold it be  none and his call over the name be only to know who hinder the visit and his  make a act of it afterward or administer a oath at the time can never be call  one though it have be below say to be a tack that of June to that of July but  that can be for then it continue much long than be intend day much long than  it can by the statute of the college for that be to cease in three day it turn  rather the other way have be hinder in June he make a act of it in July in  order to call they to a account of it as for a contumacy and to bring they to  judgement at his visitation it be no more than take a affidavit of the service  of a citation the appointment of a visitation in the ball be occasion by the  obstruction meet c see the argument of these judge skin Mod d see skinner  argument for dr bury in the house of lord skin shower KB er p with at the  chapel and it will be a very strange construction that when he design a  visitation and be hinder that the hindrance and his inquiry about it shall be  call a visitation and a former contumacy in oppose a intend visitation shall  prevent their be subject to a actual true one then it be argue that there be  no necessity that there shall be the consent of the four senior fellow to the  deprivation of the rector and by one of the council it be own that if such  consent have be necessary the sentence have be a nullity but as this statute  be frame it be argue that the bishop may deprive though they do not concur for  these reason by the statute the bishop for the time be be make the ordinary  visitor of Exeter college and that where any one be visitor of a college he  have full and ample authority to deprive or move any member of the college  quatenus visitor there be a express power give to the bishop to proceed to the  deprivation of the rector or the expulsion of a scholar and this in his  visitation and the qualify word do not restrain it to be with the consent of  the four fellow the word be deprivatio as to the rector and drivingout as to  the scholar though they be synonymous as to real sense yet by this statute  they be different apply then it say if the bishop do proceed c that only  relate to the case of a scholar because the word there use be drivingout which  be never apply but to the amotion of a scholar and it be impossible to relate  to the rector for then he must consent to his own deprivation for his  particular consent be mention and require and that be not to be expect and in  this case the consent of the senior fellow without that of the rector be not  sufficient but then the subsequent word be that if the rector be deprive by  the bishop commissary with the consent of the senior fellow he may appeal to  the bishop it be true the rector have that liberty if the commissary do  deprive he but there be no word that do abridge the bishop own power the  commissary power be restrain by those word to have the consent c but the  bishop own power have no such qualification it be object that it be  unreasonable to imagine a great power in the visitor over the rector than over  the scholar but the question be not what be fit and reasonable for the founder  to have do but to consider upon perusal of the statute what he have do suppose  he do give such a absolute authority it be what he have over the thing grant  he may have reserve to himself a power of revocation or what other power he  think fit and by the same reason he may give the like to a visitor of his  appointment and have do so it must be suppose that he have some reason for so  do the rector have a privilege not to be deprive without the benefit of appeal  if it be by the commissary the scholar have no appeal he may think fit to  trust the rector with his visitor the bishop as suppose more care will be take  by he of the head of the college than of inferior member but the question be  not what reason induce the founder to make those appointment he be master of  his own charity and may qualify it as he please and he have give it under this  qualification that the bishop be make visitor and may deprive the rector as he  have do accord to the statute and constitution of this college then the  sufficiency of the cause of this deprivation be never to be call in question  nor any inquiry to be make in WestminsierHall into the reason or cause of such  deprivation if the sentence be give by he that be the proper visitor create so  by the founder or by the law it be urge that there be in law two sort of  corporation aggregate consist of many person such as be for public government  and such as be for private charity those that be for public government of a  city town mystery or the like be of public concern be to be govern accord to  the law of the land and to be regulate and reform by the justice of  westminsterhall of these there be no private founder and consequent no  particular visitor there be no patron of these they only subsist by virtue of  the king letter patent or custom and usage which suppose letter patent and be  support and rule by the method of law therefore if a corporation be make for  the public government of a town or city and shower KB er p there be no  provision in the charter how the succession shall be the law supply the defect  of that constitution and say it shall be by election as mayor alderman and  common councilman and the like and so be roll Abridg but private and  particular corporation for charity find and endow by private person be subject  to the particular government of those who erect they therefore if there be no  visitor appoint in all such case of eleemosynary corporation the law do  appoint the founder and his heir to be visitor they be patron and not to be  guide by the common know law and rule of the kingdom but such corporation be  as to their own affair to be govern by the particular law and constitution  assign they by the founder though some have say that the commonlaw do not  appoint any visitation or visitor at all yet it be plain that it do in defect  of a particular appointment it make the founder visitor and it be not at his  pleasure whether there shall be a visitor or not but if he be silent during  his lifetime the right will descend to his heir and so be Yelv and cro James  where it be admit on all hand that the founder be patron and as patron be  visitor if no particular visitor be assign Edward assize Henry   light so that  patronage and visitation be necessary consequent one upon another for this  visitatorial power be not introduce by any canon or constitution  ecclesiastical it be a appointment of the law it arise from the property which  the founder have in the land assign to support the charity and as he be the  author of the charity the law give he and his heir a visitatorial power I e a  authority to inspect their action and regulate their behaviour as he please  for it be not fit that the member who be endow and who have the charity bestow  upon they shall be leave to themselves but they ought to pursue the intent and  design of he that bestow it upon they where the poor be not incorporate I e  they who be to have the charity but trustee be appoint there be no  visitatorial power because the interest of the revenue be not vest in they but  when they who be to enjoy the benefit of the gift be incorporate there to  prevent all pervert of the charity the law do not establish a visitatorial  power and it be a creature of the founder it be reasonable that he and his  heir shall have that power unless it be devolve elsewhere it be further argue  that in our old book deprive by patron and deprive by visitor be all one for  this authority to visit be a benefit that natural spring out of the foundation  and it be in his power if he please to transfer it to another and where he  have do so the other will have the same right and authority as the founder  have there be no manner of difference between a hospital and a college except  only in degree a hospital be for those that be poor and mean or sick c a  college be for another sort of person and to another intent the former be to  maintain and support they this be to educate they in learning who have not  otherwise wherewithal to do it but still it be much within the same reason of  that of a hospital and if in a hospital the master and poor be incorporate it  be a college have a common seal to act by though it bear not that name because  it be of ail inferior degree and in both case there must be a visitor as both  be eleemosynary a visitor be then of necessity create by the law as Edward  every hospital be visitable if lie by the patron if spiritual by the ordinary  he be to judge and he may expel and as it be assize he may deprive the only  question be if he be visitor at this time for it have be and must be agree on  all hand that quatenus visitor he may deprive if he be a visitor as ordinary  there lie a appeal from his deprivation but if as patron there be none and  then that deprivation whether right or not must stand as to the objection that  it be not the sentence of a court and therefore not conclusive it be not  material whether it be a court or not but the question be if he have  jurisdiction and conusance of the person and thing and if he have then his  sentence hold and where the founder have not think fit to direct a appeal no  appeal lie nay not to the commonlaw court the founder have put all under the  judgement of the visitor it must continue so he may have order it that the  rector shall continue only during the pleasure of the visitor but now he have  leave it to his wisdom accord to the statute shower KB er p he be a judge not  only in particular by appointment but as he be constitute a visitor in general  then in plead of a sentence of deprivation there be no necessity of show the  cause the cause be not traversable even in a visitation so be rastall Henry  Rep kennes case Edward suppose this rectory have be a sole corporation and not  part of a corporation aggregate as it be consist of rector and scholar and dr  bury have bring a assize and this deprivation have be plead it have be good to  have say that the visitor that which is fixed de cause Self insert to move  have deprive he every thing that be traversable must be express with certainty  but the cause need not be so in this case now it be strange that plead a  sentence without a cause shall be good and the find of a sentence in like  manner in a special verdict shall not be good if in plead it be not  traversable it be the strong argument that the cause be not to be inquire into  the have no appeal do not lessen the validity of the sentence it do only show  the rector place not to be so certain and durable as in other case they be  where appeal be allow the case of Caudry in the high Commission court be as  strong a sentence of deprivation no appeal and the sentence find and no cause  show yet hold good it be no answer to say that that be by the ecclesiastical  law how be it the ecclesiastical law that a man shall be conclude by one  sentence without appeal no it be because it be by a court that have  jurisdiction and the sentence be not the weak or the cause of it more  inquirable because there be no appeal it be by the ecclesiastical constitution  that the commissioner have that power but that be establish by the law of the  land and so be the visitatorial power the one authority be as much derive from  the law as the other in the case of bird v smith more deprivation for not  conform to the canon be hold good in like manner as to the case of Coueney in  dyer and that in Baggess case   they be the same as to this matter though in  two book a assize because no appeal he quote book for it but upon a perusal  they will not warrant the distinction for the party be as much conclude in the  one case as in the other it be reasonable to suspect that case not to be law  because that be impracticable which it be bring to prove the head of a college  can maintain a assize for his office of headship he have not such a estate as  will maintain that writ therefore to give that instance against we be hard the  rector have no such sole seize the whole body of the college have a interest  therein he have no title to the money in his own right till by consent they be  distribute and after such distribution it be not the rector money but dr bury  he be the only visible head of the body in deed but have no single right in  Applefords case the like argument be draw from this case for a mandamus and  insist that he may have a assize but say by the Lord hale that that be  impossible and in truth there be no difference between this case and that of a  mandamus there be a return that he be remove pro crimine irregular and appeal  to the bishop of Winton who confirm the amotion and the particular cause be  not at all return and hold good because there be a local visitor who have give  a sentence and all party be conclude by it the same be do by the power of that  government which the founder have think fit to put they under now it be argue  from hence that this be a express case if the cause of the deprivation be  examinable in the court of commonlaw why not upon a mandamus as well as in a  ejectment Lord hale in that case of Appleford take it for clear law that the  sentence be as bind as a judgement in a assize he be make a judge and his  person particular design by the founder but he have his authority from the law  and since the founder have trust the matter to his discretion it be not to be  suspect that he have do or will do otherwise than right then in the next place  it be argue that there do not appear any injustice in the sentence and  consequent it ought to be presume just credence be to be give to a person that  exercise judicial power if he keep within his jurisdiction the law have  respect not only to court of record and judicial proceed in they but even to  all other proceed where the person that give his judgement or shower KB er p  sentence have a judicial authority and here be no fault find in the sentence  the jury have not so much as find the matter and ground of it to be true in  fact or insufficient in law then it be urge that the cause of deprivation here  be just it be for contumacy if the bishop have power to visit in June as he  have and be hinder by their shut the door whereupon he go away without do any  thing and come again in July when he hold his visitation and they behave  themselves contumacious and refuse to submit to his authority this be contra  oficii Himself debt is owed it be reasonable that both head and member shall  submit to the visitor contumacy be a good cause of deprivation and upon good  reason because it hinder a inquiry into all other cause it be hold so in the  case of bird v smith and in Allen v Nash because to be refractarius now though  contumacy be not one of the cause mention in the statute yet it be certain  contrary to their duty turn their back upon the visitor not appear upon  summons refuse to be examine be a offence and contrary to what the statute  require he be to inspect the state of the college and each member particular  behaviour and now when the visitor come to make such a inquisition and the  head or the member withdraw themselves and will not appear to be examine if  this be not a good cause of deprivation nothing can be for that nothing else  can ever be inquire into as for that statute which refer to the cause for  which a rector may be deprive it do not relate to a deprivation in a  visitation but show the manner how the college be to proceed if he be guilty  of such offence they may complain at any time to the visitor if he waste the  revenue or behave himself scandalous and upon request will not resign and they  may article against he out of a visitation but when he come to execute his  power in his quinquennial visitation he be not confine to proceed only upon  the information of the fellow but be to inquire into all the affair of the  college and may proceed to deprivation as he see cause now contumacy be a  cause of a forfeiture of his office which be subject to the power of the  visitor by the original rule of the foundation and to evade or contumacious to  refuse or deny a submission to that power be a offence against the duty of his  place and consequent a just cause of deprivation so that upon the whole matter  it be infer and urge that the bishop have a visitatorial power vest in he to  deprive the rector without consent of the four senior fellow and that the  justice of the sentence be not examinable in westminsterhall and that if it be  and the cause necessary to be show here be a good one a affront the very power  of visit and set up for independency contrary to the will of the founder and  therefore it be pray that the judgement shall be reverse it be argue on the  other side by the counsel with the judgement that this sentence be void that  it be a mere nullity that this proceed have no authority to warrant it and  that it be do without authority it be as if do by a mere stranger and whether  it be such a act or not be examinable at law for that the power of a visitor  must be consider as a mere authority or a trust and it be one or rather both  and then either way it be examinable for every authority or trust have or  ought to have some foundation to warrant it and if that foundation which  warrant it have limit any rule or direction by which it be to be execute then  those direction ought to be pursue and if they be not it be no execution of  the authority give or trust repose and if not it be a void act a mere nullity  and consequent it be that of which every roan may take notice and advantage  then it be say that it must be agree that of a void thing all person may take  advantage and contest it in a collateral action and that although it have the  form and semblance of a judicial proceed and for this be cite the case of the  Marshalsea   as a full authority the resolution be that when a court have no  jurisdiction of a cause there all the proceed be in person non judge and  action lie against any person pretend to do a act by colour of such precept or  process without any regard to its be a precept or process and therefore the  rule who order judge to some degree to make non to see trick evil to make  because to appear necessary be will not hold where there be no judge for it be  not of necessity to obey he who be not judge of the cause and therefore the  rule on the other side be true judgment a non his judge datum no one be  nonenti and so be it hold in the case of Bowser v Collins Edward shower KB er  p per Pigot and Edward and therefore if the court of common plea hold plea of  a appeal of felony it be all void but it must be own that the mere erroneous  procedure of a court which have a general jurisdiction of the subject matter  be not examinable in a collateral action whether upon true ground or not and  yet if it be a limit jurisdiction and those limit be not observe even that be  in person non judge and hold with respect to court hold by authority of law  which be much strong than the case of power create or give by a private person  a sheriff be bind by law to hold his turn within a month after Michaelmas and  he hold it after the month and take a presentment at that time if that be  remove into the king bench the party shall not answer it but be discharge  because the presentment be void et in person non judge for that the sheriff at  that time have no authority and yet in that case his authority and  jurisdiction extend to the person and thing the same law for a leet unless  custom warrant the contrary and then that custom must be pursue the  commissioner of sewer have a limit authority and if the number of person or  other requisite mention in their commission be not pursue what they do which  exceed it be void and yet they have a kind of legislative authority so be it  in sir Henry mildmay case cro James and there they have a authority both of  thing and person but do not observe the rule prescribe in the gist of that  authority accord to the Henry cap and no reason can or can be give for that  resolution but that it be a particular limit authority and then to apply this  to the present case the sentence in question can no more aggrieve the  defendant than a order pronounce or make by a non judge if it be not agreeable  to the power give by the statute and this appear further from davis Rep where  the same distinction be allow nay in some case the award of a wrong process be  void as if by a steward of a manor court that a capias shall issue where the  same do not lie but only a attachment Turville and tippers case latch a court  of pypowders have jurisdiction of a action of the case yet if it bold plea of  case for slander it be all void though the word be speak within the boundary  of the fair because the jurisdiction be limit so that if the thing the time  the person or the process be not regard accord to the authority give it be all  void and a advantage may be take of it by any body where the plaintiff claim  or make his demand by colour of such act it be further argue that the reason  give in that case of latch be because the custom which give he his authority  give he notice that such process do not lie and if any man have by our law any  estate right or privilege by any particular mean he be bind to take notice of  all the condition and qualification annex thereto and the reason be just  because the same mean by which he have notice of the benefit give he notice of  the restrictive limitation and penalty and so be it hold rei the case of fry v  porter a by our law no benefit can accrue to a man by a judgement give on a  thing arise extra power curiae in case of a particular and limit jurisdiction  as in the case of Kingston upon hull march which hold plea of debt upon a bind  make extra iur c and a judgement and capias execute and a escape and hold that  no action lie for the escape because all be void and in person non judge in  the same book march die and olive case in false imprisonment plea that he be  sergeant at mace belong to a court of record and that a warrant be direct to  he to arrest the plaintiff pro in contempt and hold not good because not show  in what action and how within the jurisdiction and if not within it it be in  person non judge and void a then it be argue that this be a limit qualify  power that the visitor be a creature of the founder and if it have be the heir  of the founder he have be as much bind and restrain by the statute as a  stranger and though the law shall a vent ray lie Mod Eq Abr see also Malloon v  Fitzgerald Mod show skin Scott v tailor brown Chan case and comens Rep ambler  brown c c a see the case of Trevor v wall Cowp shower KB er p he agree to be  as be pretend that it appoint a visitor yet still whether he be the heir or  nominee of the founder he be all officer only within the limit and rule of the  foundation and the statute make thereupon as he have a visitatorial power only  over this college so he have it only after the manner in which it be give to  he if the founder have make no particular visitor but yet have appoint that  the same shall be visitable at such a time and in such a form he himself have  be bind by these rule and if he will have be so confine with much more or at  least with the same reason ought his nominee for pron  interrog  be dare he be  to place here and there and every argument which have be urge for the rector  be subject to the rule of the foundation may likewise be apply to that of the  visitor he that make the visitor may restrain shape and modify the power which  he give he he may have make he visitor only once in his life or only upon  request and have leave all other jurisdiction to the rector and fellow but  further here he be find to be visitor only secundum form set up et vigor set  up and to execute those statute and that which make he a visitor make he such  thus and thus qualify and no otherwise whatsoever power or authority the name  or office of a visitor may import ex way termini no mail can say but this  visitor be control by the statute which make he so now have there be no  statute he have never be visitor then these statute make he a visitor upon  particular term and condition time and occasion extra these term and condition  he be no visitor at all this seem plain and natural so that if he exceed the  bind prescribe to he as visitor he do not act as visitor for all power  authority and jurisdiction especial such as be create by private person must  be execute accord to the express institution or plain meaning of the party  that create they and accord to the circumstance with which he have  circumscribe they so be the rule in berwick case   and   light and a executor  be all officer or person entrust which be take notice of by the law yet in his  creation he may be limit quoad the estate in one country or quoad one  particular and he can intermeddle any further but administration shall be  grant as to the rest then it be observable that this statute visitor be not a  court of record nor any court at all but rather like a arbitrator under  certain direction he call neither meddle at another time or with other matter  or in other manner than what be prescribe but admit it a sort of judicature  here be no appeal or writ of error or prohibition or mandamus lie nay the  visitor himself can relieve against his own sentence or restore the party  deprive the next day but the place be vacant a right of election accrue to the  fellow it be therefore unreasonable to suppose he not restrain or that his act  if exceed the limit and rule set he shall be conclusive and bind this be like  a layhospital it be not a religious body though some call it mix and in case  of temporal lie office there must be some remedy at law as be Rep so be dyer  and Inst where no appeal be allow another examination must be admit and thus  seem the assize pl though it have be quote on the other side if the warden of  a hospital be irregular deprive he shall have his remedy at law and assize to  the same effect bag case Rep repeat the same case which show coke opinion to  concur with it and though all assize do not proper lie yet the meaning be he  shall have relief I e such suit at law as be proper to his case the same  distinction be allow in dr sutton case latch and that a remedy be give by the  law in this case of a temporal property seem to be plain affirm in the statute  of Henry cap and further though strict and proper it be not of commonlaw  conusance yet it fall incidental to be a question upon trial of a title the  court before who that suit depend must examime that incident as in case of a  issue lawful join in marriage or not the trial shall be by certificate of the  ordinary but if it be a question upon the trial of a title to land the matter  shall be try and judge without certificate the wisdom of our law have be such  as very rare to trust any of the court of justice with the final determination  of matter of law in the first instance and it will be strange that this case  of a visitor shall stand single by itself beside to prevent a failure of  justice the law do of necessity admit of several other provision and method of  examination or trial than what the subject matter or person will shower KB er  p proper in their own nature require especial in point of remedy and relief as  appear in dorm case Rep and Inst roll Abridg now here be no other remedy nor  other way of trial for deprivation be not triable by certificate but only in  case of a ecclesiastical person as to the objection from Applefords case side  there that writ be full answer and they can not examine into the truth and  falsity of that answer but must leave the party to his action and it do not  thence follow that in a action there be no remedy but the strong objection be  that in plead a deprivation you need not show the cause and it must be take  for just and good as more Jones more roll Abridg Edward that need only show by  who all these stand upon the same foundation they be by authority  ecclesiastical and must stand till repeal and even those case of the high  Commission court they be by the course of the ecclesiastical law which be save  to they by the proviso in Elizabeth and therefore shall be intend so till the  contrary appear and even there it be debt is owed modus private citizen which  imply all due requisite but here the whole be disclose upon a special verdict  it be not find here that he be duly deprive but that he be deprive after such  a manner which if it appear to have be without authority must be null as to  leys opinion in Davis that a sentence of deprivation in case of a donative by  a ordinary be effectual in law till reverse that be not law for it be all in  person non judge bro praemunire nat Br the ordinary can visit a benefice  donative then they object that this be a eleemosynary interest and the rector  take it under those term of subjugation to such a visitor but that be the  question what those term be and the consequence of such a opinion may be  dangerous to the university those nursery of learning and good manner it be to  make they too precarious and dependent upon will and as to the pretence that  the land be the founder and he may dispose of it at pleasure it be answer that  before the gift the land and the profit and the ownership be all subject to  the commonlaw and the owner can not give such a power as be pretend no more  than he can oblige all difference about his estate to be final determine by a  particular person and his heir or successor no absolute power can be fix in  this nation by custom but rather than the same shall be allow the custom shall  be void   light Davis roll Abridg copyhold be ancient at mere will and  pleasure but the lord be now oblige to and by certain rule by our law the  power of parent over child be qualify and restrain it be no argument to say  that the visitor come in loco or vice fundatoris for the alienation and the  statute do oblige even himself and though perhaps if no statute have be make  his visitatorial power have be much large yet since it be limit to once in  five year and his act to be with other consent it be as much as if he have  give the college a privilege of exemption by word express from any visitation  at all other time and in all other manner than those which be mention then be  cite the case of terry v Huntington before sir Matthew hale trover for good  seize by warrant of the commissioner of excise the question be when they  adjudge low wine to be strong wine perfect make upon car c whether it may be  draw in question again by a action in westminsterhall and hold it may though  they be judge and though the statute give a appeal and the reason give there  seem to reach this case because they have a stint limit jurisdiction and that  imply a negative videlicet that they shall not proceed at all in any other  case and that special jurisdiction may be and frequent be circumscribe with  respect to place as a leet or a corporation court with respect to person as in  the case of the Marshalsea with respect to the subject matter of their  jurisdiction and if judgement be give in another place or upon other person or  about other matter that all be void and in person non judge and though it be  object that strong wine be within their jurisdiction and that it be only a  mistake in their judgement yet it appear upon the special verdict that they be  low wine the action be hold maintainable this be so plain it needs no  application then it be argue that this sentence be void because there be no  authority to visit at this time there have be a visitation by the commissary  within five year before that no word in the statute make he a visitor general  but only shower KB er p secundum stat I e upon request or without request a  period of five years in quinquennium semel now here be no request find then  the act of dr master as commissary be a exercise of the visitor office Colmers  appeal be to the bishop as visitor semel imply a negation of have it more  frequent accord to grammar it signify once and not often or once for all if  semel come alone without any other particle then it be but once and if with  another as ne semel it be not once or never and the liceat semel can have no  other construction it can mean once at the least as be argue below especial as  oppose to request and no argument can be draw from the necessity of frequent  visitation for that evil be not to be presume and over interior member there  be a power in the rector and four senior now dr master be not request by the  college nay they protest against it in some degree I e so far as relate to  Colmers restitution the oath of a scholar be against appeal and the oath and  the content of they be to be deem part of their constitution but suppose that  business may be examine as a thing proper for consideration when a inquiry be  make into the state of the college and the admission continuance and removal  of the member be certain one article of such inquiry yet that must be lone in  visitation and as visitor for there be no other power find in the verdict but  that admit that no action of dr master to be visitation yet this sentence be  void because it hold above three day and the statute say after three day it  shall be take pro terminate dissolute on the sixteenth of June he come with  intention to visit do a act proper to his office and business examine the  summoner about the citation if he have come and only examine and make no  decree it have be a visitation and either it be a quinquennial one of itself  or it be a commencement of one and either one way or other it make the  deprivation void it be afterward enter as a visitatorial act the same sharply  pro part hujusmodi pain visit to have to decide and then he adjourn it be no  argument to say that he be hinder for he may have proceed in absence and if  the sixteenth of June be tack to it it be long than the time there need no  formal adjournment for that he be authorize to proceed in a summary way it be  no such absurdity to call that a visitation which be in some sort hinder since  notwithstanding the obstruction some act be do and more may have be by adjourn  to another place here be no such cause as can warrant a deprivation it be not  one of the cause mention in the statute which be not direction mere but they  be the constituent qualification of the power and contumacy be none of the  cause nay here be no contumacy at all the offence of the suspend fellow be  only a mistake in their opinion and the doctor be no more and it be not a  contumacy for refuse to answer to or for any crime within the statute for  there be none of the crime mention in the statute lie to the charge of the  rector if the crime charge have incur deprivation perhaps a contumacy may be  evidence of a gild of that crime and so deserve the same censure but contumacy  in not consent to a visitation can never be such especial when the consent to  a visitation be not require under pain of deprivation admit the visitor legal  in the exercise of his office that here be cause of censure that the cause or  crime be deserve of that punishment which be inflict that deprivation be a  congruous penalty for such a offence yet it be argue that this sentence be  void for that the visitor alone be in this case minus agreeing with judge  because his authority be particular design to be exercise with the consent of  other which be want in this case this be the same as if it have require the  concurrence of some other person extra obtain than that such a concurrence be  necessary appear from the word of the statute his meaning seem plain upon the  whole to require it a great tenderness be all along show to the rector than to  the scholar it be without quorum general consensus ineffective to be hujusmodi  drivingout vacuan Self facto and the sentence itself show it necessary because  it affirm itself to be make with such consent and it can be think that the  rector shall be deprivable without their consent when the mean scholar can not  then here be no such consent for it be not of the four senior but of the four  senior not suspend now this do not fulfil the command of the statute for the  suspension do not make they to be no fellow a suspend fellow be a fellow  though shower KB er p suspend a suspension make no vacancy the take off of the  suspension by sentence or by effluxion of time do make they capable of act  still without the aid of any new election and they be in upon their old choice  and have all the privilege of seniority and precedency as before if they cease  to be fellow by the suspension then they ought to undergo the annum test again  and to take the oath again in case of benefice or office religious or civil  ecclesiastical or temporal it be so a suspension in this case be only a  disable they from take the profit during the time it continue and it be no  argument to say that their concurrence be not necessary for that they have  withdraw themselves and be guilty of contumacy for that a man guilty of  contumacy may be present if withdraw from the chapel he may be in the college  or in the university and it be not find that they be absent and then their  consent not be have the sentence be void and null and consequent no title find  for the lessor of the plaintiff in the action below it be reply in behalf of  the plaintiff much to the same effect as it be argue before and great weight  lie upon the contumacy which hinder the observance of the statute that by  allow such a behaviour in a college no will of the founder can be fulfil no  visitation can ever be have and all the statute will be repeal or make void at  once that though this crime be not mention it be as great or great than any of  the rest that here be a authority and well execute and upon a just cause and  in a regular manner as far as the rector own misbehaviour do not prevent it  and therefore they pray that the judgement may be reverse and upon debate the  same be reverse accord note that in this case there be one doubt conceive  before and another after this hear the first be if a writ of error lie in  parliament immediate upon a judgement in the king bench without first resort  to the exchequer Chamber but upon peruse the statute which erect that court  for examination of error it appear plain that that Act only give the election  to the party aggrieve to go thither that it do not take away the old commonlaw  method of relief in parliament and so have the practice be but upon judgement  in the exchequer court the writ of error must first be bring before the Lord  chancellor and can come per narrow passage into parliament because the statute  in that case express ordain that error in the court of exchequer shall be  examine there and so hold in the case of the earl of Macclesfield and  Grosvenor the other doubt be raise by a motion in the king bench for the court  to give a new judgement upon the reversal above and insist on that it ought so  to be as be do in the case of faldo v ridge Yelv enter Trin James rot trespass  and special plea and judgement in b r for the defendant and upon writ of error  in the exchequer Chamber the judgement be reverse and upon the record return  into the king bench they give judgement that the plaintiff shall recover  contrary to the first judgement for otherwise they say the law will prove  defective and a precedent be show in winchcomb case Elizabeth where the same  course be take and the like rule be make mich will mark upon the reversal of  the judgement in Claxton v smith which be enter mich James b r rot the like in  the case of Sarsfield v Witherley it be argue on the other side that the court  which reverse the judgement ought to give the new judgement such as ought to  have be give at first that in the exchequer Chamber it may be otherwise  because they have only power to affirm or reverse for yet in the case of king  v Seutin the exchequer Chamber give a new judgement though they can inquire of  damage and that be a kind of execution which must be in the king bench in  Omulkerys case cro car and cro James the court here send a mandatory writ to  command they in Ireland to do execution there saint John v cummin Yelv Inst if  writ be abate in c b and error bring in the king bench and the judgement be  reverse shall proceed in b r and roll to the same effect green v coal sand the  judge commissioner give the new judgement it be true in dyer the opinion be  that he be only restore to his action and then writ of error be not so  frequent the judgement may be erroneous for the defendant and yet no reason to  give a judgement for the plaintiff as in slocomb case cro the court give a  shower KB er p new judgement for the defendant therefore it proper belong to  the court which do examine the error to give the new judgement the record be  remove as Fitzherbert nat short catalog on false judgement in ancient demesne  v Henry and griffin case in error on a quod ei deforceat in sander new  judgement give here in the case of Robinson v wolley in Keeble ejectment  special verdict judgement reverse in the exchequer Chamber and they can never  get judgement here the court of exchequer Chamber not have give it and in the  principal case after several motion in the court of king bench the remittitur  not be enter there a motion be make in parliament upon this matter and a new  judgement be add to the reversal that the plaintiff shall recover c