PHILIPS

against

BURY.

more care of the head of the college than he would of the infe- 1788. rior members of it. But after all, I say again, who knoweth what reason a man may have? Every man is master of his own charity, to appoint and qualify it as he pleaseth. Now if the bishop of Exeter be by statute in express words made visitor of the college, and hath by express words a power given to him to proceed to the deprivation of the rector, and there were no words to lessen that power, I would fain know how we can make such a construction as to limit this power to be with the consent of four senior fellows. So that I think by the statutes in this case, and the constitutions of the college, the bishop being made visitor, and having authority to deprive him, without any qualification of that authority, he might proceed to deprive him without the consent of the four senior fellows; though I do agree, if their consent had been necessary, the suspension doth not make them no fellows during the suspension, for it is only an impediment to them from enjoying any benefit from their office, but it makes no vacancy of the office at all. For if a minister be suspended, during the suspension the place is full (a); and if the rector had been suspended, the rectory had been full, and he might with the fellows have maintained an assize for the lands of the college, and he is as much rector as before; and then if a suspended fellow remained a fellow, if it were necessary for them to consent, such a fellow is as much empowered to consent as ever he was; but I think it was not at all nccessary as the case is. The next point is no more than this, Whether (supposing the bishop has an authority to deprive the rector, and he doth by sentence deprive him) the justice of this sentence be examinable in any of the Courts of common law? That is, first, Whether the sufficiency of the sentence as to the cause be examinable in the common law Courts? And, secondly, Whether the truth of that cause, suppose it to be good and sufficient to ground the sentence if true, can be inquired into or be examined? And I think the sufficiency of the sentence is never to be called in question, nor any inquiry to be made here into the reasons or causes of the deprivation. If the sentence be given by him that is visitor, created so by the founder, or by the law, you shall never inquire into the validity or ground of the sentence; and this will appear, if we consider the reason of a visitor, how he comes

(a) Vide 1 vol. 526.

to

1788.

PHILIPS against BURY.

[13 East. 373.]

to be supported by authority in that office. And that we may the better apprehend the nature of a visitor, we are to consider that there are in law two sorts of corporations aggregate; such as are for public government, and such as are for private charity. Those that are for the public government of a town, city, mystery, or the like, being for public advantage, are to be governed according to the laws of the land; if they make any particular private laws and constitutions, the validity and justice of them is examinable in the king's Courts; of these there are no particular private founders, and consequently no particular visitor: there are no patrons of these; therefore, if no provision be in the charter how the succession shall continue, the law supplieth the defect of that constitution, and saith it shall be by election; as mayor, aldermen, common council, and the like; and so it was in the case of the town of Launceston, 1 Roll's Abr. 513. But private and particular corporations for charity, founded and endowed by private persons, are subject to the private government of those who erect them; and, therefore, if there be no visitor appointed by the founder, the law appoints the founder and his heirs to be visitors, who are to proceed and act according to the particular laws and constitutions assigned them by the founder. So it appears by the cases in Yelv. 65. and 2 Cro. 60. Fairchild and Gaire; where it is now admitted on all hands that the founder is patron, and, as founder, is visitor, if no particular visitor be assigned. And so is 8 E. 3. Ass. Placit. 29. 31. So that patronage and visitation are necessary consequents one upon another; for this visitatorial power was not introduced by any canons or constitutions ecclesiastical (as was said by a learned gentleman, whom I have in my eye, in his argument of this case): it is an appointment of law; it ariseth from the property which the founder had in the lands assigned to support the charity; and as he is the author of the charity, the law gives him and his heirs a visitatorial power, that is, an authority to inspect the actions and regulate the behaviour of the members that partake of the charity; for it is fit the members. that are endowed, and that have the charity bestowed upon them, should not be left to themselves, (for divisions and contests will arise amongst them about the dividend of the charity,) but pursue the intent and design of him that bestowed it upon them, Now indeed, where the poor, or those that receive the charity, are not incorporated, but there are certain trustees who dispose

of

PHILIPS
against
BURY.

ناگون

of the charity, according to the case in 10 Co. there is no visitor; 1788.
because the interest of the revenue is not vested in the poor that
have the benefit of the charity, but they are subject to the or-
ders and direction of the trustees. But where they who are to
enjoy the benefit of the charity are incorporated, there, to pre-
vent all perverting of the charity, or to compose differences that
may happen among them, there is by law a visitatorial power;
and it being a creature of the founder's own, it is reason that he
and his heirs should have that power, unless by the founder it
is vested in some other. Now there is no manner of difference
between a college and an hospital, except only in degree; an
hospital is for those that are poor, and mean, and low, and sickly :
a college is for another sort of indigent persons; but it hath an-
other intent, to study in, and breed up persons in the world, that
have not otherwise to live; but still it is as much within the
reason of hospitals. And if in an hospital the master and poor
are incorporated, it is a college having a common seal to act by,
although it hath not the name of a college, (which always sup-
poseth a corporation,) because it is of an inferior degree; and in
the one case and in the other there must be a visitor, cither the
founder and his heirs, or one appointed by him; and both are
eleemosynary. A visitor being then of necessity created by the
law, (as 8 E. 3. 69, 70.) every hospital is visitable either by the
patron if a lay hospital, or by the Ordinary if spiritual. What
is the visitor to do? He is to judge according to the statutes
and rules of the college. He may expel, and (as in 8 Ass. 29. 31.)
he may deprive. The only question there was, Who was vi-
sitor? For it is agreed on all hands, that quatenùs visitor he
may deprive: if he be visitor as ordinary, there lieth an appeal
from his deprivation; but if as patron, then none; that
deprivation, whether by right or wrong, was to stand good.
But you will say, the visitor hath no Court, and it is unreasonable
to conclude a man by the sentence of one that hath no Court.
It is (I say) not material whether he hath a Court or no, all the
matter is, whether he hath a jurisdiction; if he hath a juris-
diction and cognizance of the matter and person, and he giveth
sentence in the matter, his sentence must make a vacancy, be it
never so erroneous; but there is no appeal, if the founder hath
not thought fit to direct one. That an appeal lieth to the com-
mon law Courts of England is without precedent. It is plain
by all the authorities of our books, and by the way of pleading,
VOL. II.

A a

that

1788. that the cause of the visitor's sentence is not examinable; if a sentence of deprivation be pleaded, you need not shew the cause; PHILIPS it is not traversable even in a visitation, when it is by the

againit BURY.

visitatorial power; so is Rastal Entr. fol. 1. 11 H. 7. 27. and
7 Co. 42. Kenn's case.
Kenn's case. Now I would suppose that this rectory
had been a sole corporation, and not a corporation aggregate
of rector and scholars, and Dr. Bury had brought an assize,
and then this deprivation is pleaded; I would know of any whe
ther it were not a good plea to shew that the visitor had pro
certis causis, &c. deprived him; without all question it had been
a good plea, and not examinable. For every thing that is examin-
able must be expressed in certainty. Now it is strange that
pleading a sentence, without shewing the cause, should be good,
and finding a sentence in a special verdict, without finding the
cause, should not be as good and conclusive to the party. I
thought things had been more exactly to be pleaded than set
forth in the finding of a jury upon a special verdict; and if in
pleading it be not traversable, the argument is the strongest that
can be that the cause is not inquirable into. For if it were,
à fairer opportunity must needs be given than upon a special
verdict, which concludes the party as to the fact that is found.
As to the matter of there being no appeal from an arbitrary
sentence, it is true the case is the harder, because the party is
concluded by one judgment; that does make it the more severe
upon the rector, but it doth not lessen the validity of the sen
tence. If the constitution had been, that if the visitor doth
deprive the rector, then he might appeal to the archbishop of
Canterbury, it had been more equitable; but in that case, if
there had been any appeal, and the sentence had not been re-
versed, then the deprivation had been in force, and irremediable
in any Court of law. And I do not know any authority of law
that makes the sentence to be the weaker, because the party de-
prived is barred of an appeal. In the case of Cawdry and The
High Commission Court, a sentence of deprivation was given
against him by that Court, and there was no appeal. In the case
of Allen and Nash, Jo. 393. the sentence was found, but no
cause shewn; yet it was held to be well enough, though no
appeal did lie, the sentence being in the High Commission Court.
How doth my brother Eyre distinguish this case from ours
here? He says that it was by virtue of the ecclesiastical law;
I would fain have any body tell me the difference; for in one

case

PHILIPS against

BURY.

case as well as the other there is a lawful jurisdiction to deprive 1788. without appeal; if then in one case the sentence be conclusive, though there be no appeal, why by the same reason should it not be as conclusive in the other? It was so in the case of Bird and Smith, Moor, 781. Where a man was deprived for not conforming to the canons. A case certainly very hard, for all the canons are not according to law, nor any of them obligatory, further than as received and allowed time out of mind. Now as to the cases of Coveney, Dyer, 209, and Bagg's case, 11 Rep. 99. that the party deprived shall have an assize when no appeal, I take the cases to be all one as to this matter, though in two books; and there being an error in the first, it was not rectified afterwards. Coveney, president of Magdalen Col lege, was deprived by the visitor, not as ordinary, but as visitor. The question was, Whether there would lie an appeal from the visitor's sentence to the King? It was held there could be none to the archbishop, because it was not done as ordinary, but as visitor. What then? Why there is this collection by the reporter, ex hoc sequitur, says he, that Coveney, who was deprived, shall have an assize. And that was the cause of the opinion of my Lord Coke, that is cited in James Bagg's case, and he there quotes the book 8 E. 3. 8 Ass. for such a distinction. But if there be an inspection into the book, there is no such distinction in the book to be found; the party is concluded in that case as well as the other. Therefore there is an end of that opinion, for the foundation fails, and is not warranted by any authority, But besides it is reasonable to suspect that case not to be law, when the instance is impracticable which it is brought to prove, The head of a college cannot maintain an assize for his office of headship. He hath not such estate as will bear it. Therefore to give such an instance as in Coveney's case is to overthrow the authority of the case. The head of such a body cannot maintain an assize for his headship, for he hath no sole seisin ; the whole body of the college have an interest in the estate, he has not a title to a penny of the revenues in his own right, till by consent they be privately divided and distributed; and then too it is not the rector's money, it is Dr. Bury's money after division. It is a notion that cannot be maintained or supported by the rules of law: he is indeed the only visible person of the body, but he has no separate right. Now in Appleford's case, the like argument was used in this Court in my Lord Hale's time, and

A a 2

then