case march the attorney general at the relation of robert mapletoft bachelor  of Art bear at Byefield in the county of Northampton and scholar of Clarehall  in Cambridge plaintiff the master fellow and scholar of Clarehall and William  talbot defendant see Alt gentleman v earl of powis key Ves S c there be no  particular word require in a donation to a college to create a visitor it be  sufficient if the intention of the founder appear who shall be visitor and  technical word be not necessary the case as state by the plaintiff bill be  John freeman of Billing in the county of Northampton esquire by his will in  direct two thousand pound to be lie out by his executor in purchase one  hundred pound ayear land of inheritance the rend of it to be employ and  distribute towards the maintenance of ten poor scholar in the university of  Cambridge at or in the house or college call Clarehall in the university for  ever videlicet to two poor fellow there to be place by my foundation the sum  of twentyfive pound apiece and to eight scholar the sum of pound ayear my  kinsman if any be to be the first prefer and next to they those that be bear  within the county of Northampton and next to they those that be bear within  the county of Lincoln that shall be atkins fit for the same the further  perfect thereof I leave to my executor the executor in pursuance of the will  lie out two thousand pound in the purchase land of inheritance of the yearly  value of one hundred pound and upward and the then master and fellow have  accept the say donation upon the term and condition on which the same be give  by the testator the executor thereupon execute a deed in to which they be  party of the one part and the master and fellow of Clarehall of the other and  this deed have be ever since the execution thereof in the custody of the  master and fellow and the purchase land be thereby limit and settle for the  perpetual establishment and endowment of two fellowship and eight scholarship  upon the foundation of John freeman the testator from the year to the master  and fellow of Clarehall pursue the intent and meaning of the foundation  without deviate in one single instance for during the first hundred year every  person elect into the say fellowship or scholarship be either of the testator  blood or kindred or bear in the county of Northampton or Lincoln the first  fellow choose in the college contrary to the will be in and there have be the  same innovation from that time for the last twenty year in every subsequent  election Thomas Neal a fellow upon Mr freeman foundation in resign his  fellowship whereupon the relator then a bachelor of art and bear at Byefield  in Northamptonshire offer himself a candidate and though there be no other  candidate of John freeman the founder kindred or of any person bear in  Northamptonshire or Lincolnshire in which case the relator by virtue of the  propriety of the foundation be entitle to be elect into the say fellowship  without the admission of any competitor not qualify as aforesaid yet the  master and fellow put the defendant William Talbot a person not relate to the  founder and bear in the county of Bedford into nomination and competition for  the fellowship and he be upon the that of April elect into the say fellowship  by the master and fellow the plaintiff insist that the election of the  defendant William Talbot into the vacant fellowship of the testator freeman  foundation be make in direct contradiction to the express term of the donation  be as such Self facto a null and void election and the relator have be the  only competitor for the same who be duly qualify accord to the intent of the  atkins founder and no objection of unfitness impute to he the vacant  fellowship ought to have be confer upon the relator not bare in preference to  but in exclusion to the defendant Talbot who never be qualify to be a  competitor for the same and therefore have bring his bill that the propriety  of the say foundation of two fellowship and eight scholarship pursuant to the  will of John freeman may be assert and establish by the decree of this court  and that the fellowship and atkins er p scholarship may accord to the true  intent and meaning of the founder be declare to have be absolute appropriate  to and belong in the first place to the testator kinsman if any there be and  next to they to those that be bear within the county of Northampton and next  to they those that be bear within the county of Lincoln and shall be fit for  the same and that the election of the defendant William Talbot into the  fellowship vacant by the resignation of Thomas Neal may be supersede and set  aside and the relator forthwith admit to and instate in the same and that the  defendant William Talbot may come to a account with and make full and adequate  satisfaction to the relator for the profit emolument and advantage which may  have be make by he by virtue of the say fellowship during his possession and  enjoyment of the same the defendant William Talbot as to so much of the  information as seek any relief in all the several matter therein mention plead  that Edward the three in the that year of his reign by letter patent under the  great seal grant licence to Elizabeth de Burgo then lady de Clare to find and  endow the college or hall call Clarehall in the university of Cambridge for  the perpetual maintenance and subsistence of a master diverse fellow and  scholar in the say college or hall who shall apply themselves to the study of  learning that Elizabeth de Burgo lady Clare do in pursuance of the licence  find Clarehall accord and they be by Edward the three letter patent  incorporate by the name of the master fellow and scholar of Clarehall that the  foundress of Clarehall for the better regulate the master fellow and scholar  do make diverse statute and ordinance to be perpetual observe and among the  statute there be one de removal instructress which say si magister speech  house to be intimacy legitime super crimine homicide adultery c well in Self  spear control negligent dolose sit to turn often c a his office of  superintendent sit deservedly to move away et porter pron  interrog   jurisdiction visit amendment punitioni in omnibus prediction instructress who  pro tempore to be atkins subjacer to will or prediction porter locum to hold  proviso yet always quod two teacher well instructress a dictam university ad  hoc to pluck out to will et etian appointed speech porter well he locum to  hold to attend to in omni process contra instructress speech house ad Self  removal ex speech cause well earun aliquan to make condition prius super  causan or cause removal hujusmodi in person eoden porter or Self locum tenente  et speech teacher or teacher et instructress well instructress cog nitioni in  the form of a sentence et definitive et summary et de plano without figuran  judgment et etian without scribe cum et de council et assent speaker a master  et teacher a his office of superintendent to will anoveri nullo eiden  instructress such move away appeal well elsewhere law common well not general  remedy contra hujusmodi removal opinion quo modus it pleases valitur quod si  magister a his office of superintendent such amotus ab hujusmodi removal of  oneself opinion ad quemcunq judge qualitercunq appellate well other quodcunq  remedy law common well not general to drive well to make to drive or any other  to make presumpserit c to will to cause to stand ut rata et irrevocable to  stay opinion say in addition to a position who prius to have in house  prediction et omni suitably quod in she et ex she to be to take wholly inside  sit private citizen that among the say statute there be another entitle de  potestate instructress in associate c which say item associate student et  minister speech house Self instructress immediate to will be to throw under to  such a degree quod ipse to be able to withhold pro nest departure to seize to  make straight ac etian si of oneself to character hoc to drive out a dictam  house et Self joint pursuit ac suitably quocunq thence competent the same  summary et de plano absq noise et figuran judgment without scribe to move away  inside et to bereave si autudadamn magister manner in to send forward to or  some de speech associate in praeemissis well to some place the same gravamen  to bring in aliquale to be for sale to will what modi show with reluctance ad  hearing speech porter sive procancellarii only appellate c that among the say  statute there be another entitle de election statutor which say item to will  quod speech A kind of porter instructress et all men associate et one house  prediction year one si opus to be to be able to go to see et si quis inter eos  repererit corrigendum mock cum assent two teacher well a master prout in  similar things superius be a forcing apparatus debit juxta law et our statutor  c urgency to make straight et to punish atkins er p that among the statute  which be entitle petty king de Clare there be one entitle de modus of a god  offician to frequent which say si quid post death our men de speech our men  statute c doubt et to bring forth well dark quod per instructress et associate  speech house well mayor et saniorem parten the dawn not to be able  harmoniously to set bounds to will quod per speech atkins instructress et  associate porter speech university well Self locum to hold absq morae expense  plenary to bear back ut ipse A kind of porter or he locum to hold One cum et  de council et general consensus two teacher si to be otherwise two  baccalaureor c hujusmodi doubt well dark to explain et to disclose c per she  yes Q use we dumb in here vita to be above to lead to keep back our men heir  post nostrum departure law some quantumcunq the dawn well the dawn to some  place use to be acquire besides addition not any modus the defendant aver that  the say statute be all which any way relate to the constitution of a visitor  of Clarehall nor be there in any deed or write any thing which relate to the  appointment of a visitor of Clarehall save as aforesaid and insist that the  chancellor for the time be of the say university have be ever since the  visitor of the say hall and that the chancellor for the time be his deputy or  vicechancellor have with the advice and consent of two doctor if any such  there be or otherwise of two master of art one a regent and the other a  nonregent master hear adjudge and determine and of right ought to hear ad  judge and determine all dispute complaint and controversy concern the election  and admission of any person into the place of one of the fellow or scholar of  the say college and that such controversy c have hot be and ought not to be  hear adjudge or determine before any other court or judicature or in any other  manner whatsoever that at the time of the election of the defendant the duke  of Somerset be and yet be the chancellor and visitor of Clarehall and that the  relator Robert mapletoft have not appeal to the say chancellor as visitor of  the college or hall to hear a d determine the right of election as he may and  ought to have do that the say chancellor have power and authority to compel  the defendant to make a full answer upon oath to all such matter as shall be  complain of against he touch the election of fellow into the say college or  hall and also to enforce a production of all statute book c relate to any  controversy concern the election or admission of the defendant or the relator  Robert mapletoft into the place of one of the fellow of the say college or  hall and pray the judgement of the court whether he ought to be compel to make  any other answer or whether the court ought to proceed any further in the suit  atkins Mr solicitor general for the defendant this be a plea of great  consequence to both university the first question be whether the plea do  sufficient put in issue that the chancellor be the general visitor of this  college second whether the ingraft fellowship be subject to the same statute  and rule with the original fellow in the original foundation Elizabeth de  Clare the foundress reserve a power to herself during life to construe her own  statute and afterward that the chancellor shall have the power of construe the  statute if any doubt arise which alone if it rest there will give he the whole  visitatorial power but it require he further to visit the master and all and  singular the fellow of the college once a year it appear too that upon a  appeal to the chancellor he have adjudge accord and that he have a power to  order all book and paper to be lie before he without the assistance of this  court and your lordship in several instance as a visitor have order it to be  do in the same summary manner there be very few foundation in either  university which have not have ingraftments upon they and whoever find new  fellowship that fellow from the moment of his ingraftment must be subject to  all the statute on the original foundation here the relator claim to be a  fellow and such a fellow as may be choose master so that he be not to be take  as total distinct from other fellowship though a visitor shall do he injustice  by this final determination without appeal yet it be better to submit to this  inconvenience than let question of learning be debate noise et scribe door  foreigner in the case before your lordship about four year ago upon the  foundation of William of Durham of new fellowship by way of ingraftment upon  university college atkins er p as that be a society of royal foundation your  lordship upon appeal determine it as a visitor in a summary way and will not  suffer it to go on in the course of charity cause as it will be of very bad  consequence by open a door to the court here to interfere in a matter of this  nature atkins Mr clark of the same side the plaintiff claim mere on his be  bear in the county of Northampton and set up a right to be admit a fellow  under Mr freeman foundation a clear substitution of a general visitor by the  foundress in regulan de Clare and the statute to act in her room in continuous  in doctor Bentley case stram upon the construction of the statute of Trinity  college Lord Raymond hold the visitor have a jurisdiction over the member of  that society even to expulsion and that notwithstanding there be no express  word appoint a visitor yet this be imply from his power in the case of the  king against the warden of Allsouls college in Oxford sir Thomas Jones on a  mandamus to admit ayloffe a fellow he return the charter of foundation and  that the archbishop for the time be be perpetual visitor of the say college  and that ayloffe have not appeal to the archbishop as de jure to be able to  withhold and demand judgement whether he shall be compel to make any other  answer and though it be object that no power be give to any visitor on a  matter of admission or refusal though it be do in case of correction or  removal it be answer that the power of correction and removal be a very great  power the other be incidental give and that the constitution of the visitor  eastern nomin give a power and the question here be whether the return be good  or the court may proceed further it be resolve the return be good for by the  appointment of visitor they be make sole judge without appeal and that Lord  hale say in the case of doctor Robert on a mandamus to be restore to the place  of a fellow in jesus college in Oxford that there be no remedy against the  judgement of the visitor though unjust or though he refuse to accept a appeal  Mr Wilbraham of the same side nothing be more establish in court of law than  that they will not proceed on a mandamus to restore a fellow upon a return  make that there be a visitor in the case of Philips versus berry ld Raymond  term Rep S c Lord chief justice holt say that a corporation constitute for a  private charity be entire private and whole subject to the rule law statute  and ordinance which the founder ordain and to the visitor who he appoint and  no other and that the office of visitor be to hear appeal of course and from  he and he only the party grieve ought to have redress and in he the founder  have repose so entire confidence that he will administer justice impartial  that his determination be final and examinable in no other court whatsoever  atkins then the question will be whether these ingraft fellowship shall be  govern by the same statute and law with the original fellowship one of the  ingraft fellow be now a master of the college and yet the plaintiff will have  they govern by different law this be absurd because there must be then two law  and if subject to the statute in common act preach do exercise c why not equal  subject to the visitatorial power the fellowship one with another in the  university be not of great value perhaps not above pound or pound ayear and  therefore if liable to be bring before court of justice in Westminster hall  they have better sit down content with any grievance than defend themselves  the plaintiff say he have a right to be choose exclusive of all other person  which be put it upon a foot like a congee dlire for a bishop in common sense a  right to be choose do in itself imply a competition a plea of a visitor never  come before the court till now and be a jurisdiction in a summary way  unappellable and if not allow will introduce a great mischief to both  university and therefore hope this be a good plea Mr attorney general for the  plaintiff the defendant be not a founder kinsman nor within the county of  Lincoln or Northampton I will not dispute that where a visitor be clear  appoint by statute this court will not interpose but do insist in the present  case here be no general visitatorial power atkins er p first as to the removal  of the master it be plain from the general tenor of the statute it be not a  general visitatorial power but give to the chancellor and two doctor to move  he and not to determine as to the choice whether duly appoint and therefore  mean only to subject he to such censure as he may deserve for his bad conduct  the annual visitation intend to go no further than to any of the crime the  party may have be find guilty of and amount to this that the chancellor of the  university shall visit twice a year and punish for those particular crime and  shall not hurt the power of the master as to any future act atkins the rule of  the statute do not extend further than the corporate body extend and therefore  no person who be not of that corporate body can subject to these particular  rule the present foundation depend on a particular will and the law and rule  of the testator be the measure by which it be to be govern Mr solicitor  general say there be few college without new ingraftments but unless those  ingraftments be by apply to the crown incorporate into a particular body they  be not to be consider as a part of the body and therefore I speak of my own  knowledge that there have be frequent application to the crown for such a  incorporation it be not say by the will of Mr freeman that his fellowship  shall be subject to the law of lady de Clare in the case mention of university  college it be determine the petitioner ought to have be choose as the only  qualify person though his competitor have the majority of voice both party  there agree the crown be visitor and therefore this point be not debate how  far a new ingraftmentis subject to the same visitatorial power with the  original foundation so that it must depend on a different rule and be construe  in a different way as to the argument of inconvenience there be a much great  on the other side be it none that there shall be a arbitrary final  determination and subject to no appeal whatsoever Mr brown of the same side  this be a particular foundation and for year together Mr freeman direction for  the government of these new erection be follow and afterward there be a  endeavour to incorporate they into the old fellowship but nothing have be show  that these fellowship have any more connection with Clarehall than with the  fellowship of another college it be not aver there be any visitatorial power  with regard to election but only with respect to the conduct of the fellow  where they be guilty of crime to be correct by the master a by appeal from he  to the visitor they rely on the clause in the statute de lection statutor a  visitor may be appoint with a partial power by a founder atkins and yet not  have a general visitatorial power that he shall to make straight to punish  that be in the particular instance before mention and therefore insist this be  mere confine to such particular power but whatever may be the construction of  the visitatorial power with regard to the original foundation the question be  whether it ought to be extend to this particular case Mr freeman may have make  the chancellor visitor equal as in the original foundation he have not do it  in express word can it be say then there be any necessary implication the  chancellor be to be a visitor here I know of no instance where it have be  determine a person be visitor by implication only Mr freeman by his will make  they no more than bare trustee to elect such person as he direct shall be  electable and while resident they be to be under the government of the college  but there be no right to choose fellow unless they come to be commorant there  the plea shall have aver this be one of the fellowship of that college and  there be no allegation that the plaintiff be a fellow of that college Mr  freeman himself do not call they fellow of that college but fellow of his  society there be a instance in the very same college report in Mod Mr  Jenningss case of Clarehall the counsel move upon a return to a mandamus to  the master and fellow of Clarehall to restore Jennings to his fellowship on Mr  Dickinss foundation atkins er p they return their several statute c and that  by one of they the chancellor be nominate to be their visitor and therefore  the master be not oblige to admit Mr Jennings to his fellowship there be a  visitor the counsel who argue the return be insufficient say the statute of  lady de Clare who put the master and fellow find by her under the power of the  chancellor do not subject those fellowship which be find afterward to his  power and therefore since there be no other remedy pray a peremptory mandamus  e contra it be say whether Mr Jennings be or be not duly elect the examination  of it do not belong to this court but to another jurisdiction and here be a  visitor appoint by the statute this court will not interpose the point be not  absolute determine but the chief justice say how can the bring in stranger and  make they subject to the restriction impose by the founder though there atkins  be a visitor for the fellow find by lady Clare yet whether this visitor shall  be extend to the new fellow be the question and whether there must not be a  new incorporation of the second fellowship find by dickens this be not a new  doubt then but arise upon this very case of Clarehall and therefore it be too  hard to determine in a summary way that it be in the chancellor as visitor  when there have never be any incorporation of these fellow and that this be  not consequent such a property as be within the general visitatorial power  suppose there be power the plaintiff counsel read the charge in the bill to  show that for year together from the first foundation of Mr freeman the master  and fellow of Clarehall inviolable observe the rule of Mr freeman the founder  of the new fellowship another charge be read to show that the master and  fellow of this college do not attempt till a long course of year to  incorporate these now fellow as part of the college but always consider the as  distinct Mr York of the same side a charitable foundation be not to be govern  by the rule of another foundation unless some reference be make by the founder  to those rule when associate subject to the rule of the founder of Clarehall  but this be a question previous to their election and therefore stand upon  another ground if the relator have go before the visitor there be a great  doubt whether the visitor will have admit of the appeal to he in this case  because if a visitor admit of a appeal where he have no right to determine it  be be liable to a action and so lie down in the case of Philips versus bury  Lutw where a founder of a eleemosynary foundation appoint a visitor and limit  his jurisdiction by rule and statute if the visitor in any sentence exceed  those rule a action lie against he but it be otherwise where he mistake in a  thing within his power though in this case there be not any appeal over Lord  chancellor I have receive satisfaction enough at present to determine this  plea but not to make a final determination for the relator be not preclude  from enter into proof to falsify the plea atkins it be a case of great  consequence to the college in the university who have have many litigation  about the power and right of visitor and how far the court of justice have a  jurisdiction in these matter and if a determination shall be hasty make that  college be liable to information in this court on the foot of general charity  and Accountable for misapplication and abuse I be afraid it will open a door  to great vexation and expense the first question be whether by the plea it be  sufficient show there be a general visitor f this college second if that  visitatorial power extend to Mr freeman donation as to the first it appear  very clear to I there be a general visitor of the college call Clarehall under  the statute of Elizabeth de Burgo lady Clare instead of create a visitor by  general word she have direct by the statute that the chancellor once in every  year shall visit the college de lection statutor item to will quod speech A  kind of porter instructress all men associate one house prediction year one si  opus to be to be able to go to see si quid inter eos repererit corrigendum  mock cum assent c to make straight to punish if nothing more have be do than  be mention in this statute that alone in atkins er p my opinion will have be  sufficient to make he a visitor for there be no particular word require to  create a visitor but it have be determine it be sufficient if the intention of  the founder appear who shall be visitor and technical word be not necessary si  quid corrigendum c make he a general visitor and if he find a person take part  of the revenue improper he may under the power give he by this clause remove  such person in favour of he who have the right in the next place she direct  who shall construe the statute and determine any doubt that it shall be the  chancellor with his assistant and by express word the foundress exclude her  own heir nothing can be strong than exclude the heir to show she mean to give  the Chancellora general visitatorial power and therefore I be clear of opinion  the chancellor be visitor of this college atkins if the chancellor of this  university then be visitor the general power of a visitor be well know no  court of law or equity can anticipate their judgement or take away their  jurisdiction but their determination be final and conclusive and it be a more  convenient method of determination of controversy of this nature it be at home  forum household member and final in the first instance and they shall be  adjudge in a short way secundum arbitration good man it be true this power may  be abuse but if it be exercise in a discreet manner it be a much less expense  than suit at law or in equity and in general I believe such appeal have be  equitable determine the second question be suppose there be a visitor whether  this visitatorial power extend to the charity find by Mr freeman I be of  opinion it do he direct two thousand pound to be lie out in land the rend and  profit of which be to be employ towards the maintenance of ten poor scholar in  Clarehall videlicet to two poor fellow there to be place pound apiece c what  be Clarehall a corporation consist of master and fellow and the power give by  the charter be to incorporate by this name not mention any number of fellow  but indefinite it have be object here be nothing which import they shall be  incorporate with the old fellowship but I be of opinion it be his intention  that there shall be two fellow to be incorporate in that college from the word  there to be place to be sure the rule lie down by the founder as to the  fitness of the person c ought to be observe the question then be what be the  consequence of this ingraftment it have be say these fellow be not liable to  the same rule nor to be govern by the same visitor with lady Clare foundation  as there be such a number of ingraft charity in college it become a very  considerable question it be object the statute can only extend over the  corporation of Edward the three and that the corporation can extend itself and  that Mr freeman have not by his donation make his fellow member of this  corporation atkins if Edward the three have make it to consist of twelve  fellow a certain number then be limit these new fellow can not have come in  without a new incorporation but where the number be indefinite I see no rule  of law to prevent the master and fellow of Clarehall from incorporate these  fellow a lie corporation where the number be indefinite may incorporate new  member if they do not make a ill use of such a power if they may be ingraft  into this college they be then member and must be govern by the statute of the  college and the rule of its discipline and if so then they be subject too to  the visitatorial power of the visitor of the college and if they be liable to  it with regard to amotion they be equal liable with regard to their come in  and election but it be say the visitor will not have a right to determine as  to the agreement or contract make between the master and fellow and Mr freeman  executor but the master and fellow agree to let in two new fellow be such a  act that the visitor have a right to examine into and implicit give he a power  over they and he may have inquire into it within the year as it be a  transaction in that college the whole of which be subject to his jurisdiction  atkins er p a visitor be a much more proper judge of the comparative fitness  and qualification of candidate that a a court of law or equity as they be more  conversant in matter of that kind but I be further of opinion that the  plaintiff have exclude himself by his information from enter into this  question by express pray to be admit a fellow of this college and I must take  it that every fellow of the college be a part of the college for here be no  averment that these new fellow be not a part of the corporation or that they  may not be master of this college or enjoy any other office under the original  foundation oh but though I allow the plea the party may descend to proof and  if the relator shall be able to show they be mere nominal fellow and allow to  live in Clarehall only for the sake of information and instruction that will  be of a different consideration the prayer too of the information that the  defendant Talbot may come to a account with and make full satisfaction to the  relator for all and every the profit emolument and advantage which have be  make by he from the fellowship during his possession induce I to hold strong  against it atkins suppose the master and fellow shall have err in the  construction of the statute they may have innocent err and in such a poor  provision as this be it will be a great absurdity to make a fellow account for  commons c which he may have eat upon a imagination he have a right to they but  further I do not approve of his turn this into a information as the charity be  already sufficient establish the want of which be the principal reason for  come into this court when he may have have a mandamus to determine the  particular right between the party in a court of commonlaw that have the  proper jurisdiction though it be say good judge be jurisdiction to widen I be  extreme disincline to encourage such suit which may take off these learned  body from their study and ingross their time very improper but still this  allowance of the plea will not preclude the relator to show from other statute  that these new fellowship be not liable to the general visitatorial power  under the original foundation of this college but as I must at present take  the defendant allegation to be true the plea must be allow note the general  rule in these case seem to have be laiddown by Lord Hardwicke in green v  rutherforth Ves where he observe that if a subsequent donor give the legal  estate or a trust for a college without a declaration of a special trust it  will fall under the power of the general visitor to judge of the legal  property in the one case and the equitable in the other because by give in  trust for the college general and neither create a distinct visitor nor a  special trust the donor have by plain implication intend it shall fall under  the general statute and rule of the college and be regulate with the rest of  their property but where a distinct visitor be appoint or a particular trust  create the intent of the donor or testator must be observe vide attorney  general v governor of harrow school Ves master and senior fellow of saint John  college v Todington burr the king v the master and fellow of saint Catherine  hall term Rep