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nire et reformare; that he had power once in three years to The Kino visit the chapter, to examine the dean and canons (on oath, if '•
necessary) as to any enormities by them committed, and to cor- . T' nEBTE"-. rect such enormities; and that he had also a power to expel scandalous members, after they were thrice in vain admonished by the dean. In the present case it was suggested, that the bishop had expelled Prescot without any previous admonition by the dean; and upon that ground a mandamus was moved for; the bishop having, as was said, exceeded his jurisdiction.
* When it was first moved, it was argued by Mr. Ford and [ * 23 ] Mr. Evans: 1. That the bishop had no jurisdiction, the visitatorial poWerQr) not commencing in him, till the dean had thrice exerted his admonishing or coercive power; and the words punire et reformare must not be construed to imply expulsion, for that power can only be given by express words. 2. That if the bishop had a jurisdiction, yet he has not pursued the form of it; and that in these inferior jurisdictions, it is necessary, that they should keep strictly to the form chalked out to them. The form prescribed in the triennial visitations ought to have been observed in this visitation; i. e. to call the dean and canons before him, and to interrogate them upon oath. This has not been done. Besides, this being a particular jurisdiction (if any) it should have been stated on the face of the sentence. 3. If either there is no jurisdiction, or the form of it is not pursued; this Court will interpose, as the general guardian of the rights of all men, and as the only remedy which the nature of the case admits of. This was allowed in the famous case of Philips and Bury(h).
Per Cur\—This would have been a proper subject for a prohibition, if the bishop assumed a jurisdiction which he had not. However, let the bishop shew cause.
Postea, M. 21 G. 2, cause was shewn by Sir Richard Lloyd, Mr. Gundry, and Mr. Henley; who argued,—That the Court cannot issue a mandamus, except they are legal judges of the duty required to be done; and that they are not legal judges of the visitor's duty.—That private and domestic institutions are subject only to private and domestic jurisdiction; and this Court only inspects such jurisdictions as are of a public nature. Y. Bk. 8 Ed. 3. Lib. Ass. pi. 29; Philips and Bury, 1 Sid. 71; Rastal, 1; Comb. 143, Parkinsons Case; 2 Show. 170, Applefords Case If); Stillingfl. Disc. 269.—*That the three previous [ * 24 ] admonitions of the dean are requisite when the Society call in the visitor; but not, if he visits them voluntarily, as every visitor has a right to do.—That this Court cannot judge of the limitations and bounds, which are said to be set to the bishop's jurisdiction. The statutes direct, that if a question arises, whether the bishop rightly interprets the statutes, it shall be determined by the Archbishop of York; and Prescot should have applied to him.—That no case can be cited, where a man
(g) See Lord MantfieUTs judgment, post, (A) 1 Lord Raym. 5, 2 T. R. 346, Skin.
81, 90, n. (h). 475, Show. P. C. 35.
(0 Mod. 82, 2 Keb. 799, 861; S. C, cited in 2 T. R. 355. VOL. I. C
damns has been granted to a visitor (k).—That if there could, yet it would be too late to apply for a mandamus after sentence given. A prohibition should have been moved for, pending the suit: That this Court cannot compel a visitor to shew cause for a deprivation; and, if he does shew any cause, that cause is not traversable: 7 Rep. 41, Kenris Case; K. and Walker, Hil. 9 Geo. 2. (I).—That in Sherlock's Case (;«), a mandamus had indeed been granted; but then the prebend which he demanded was annexed to his headship by act of Parliament. Not that an act of Parliament, merely to confirm private statutes, will warrant a mandamus. K. and Bugg, M. 9 Geo. 2.—That if the mandamus should now be granted; the Court will assert a power of interpreting all statutes of all corporations, which it has never hitherto done. 3 Mod. 265.
In support of the rule, Sir Thomas Bootle, Mr. Hume Campbell, Mr. Ford, and Mr. Evans, argued,—That if the Court would not inspect the tyrannical exercise of visitatorial power, it would be of very bad consequence.—That by such a doctrine, collegiate bodies would be put out of the King's protection, and the benefit of the law, which they ought not to be: [ * 25 ] Lee's Case, Skynn. 290 (n).—*That in this case the bishop is to fill up, if he removes; and is therefore judge in his own cause; which is contrary to reason, equity, and law; and none of the cases cited on the other side are of this kind.—That according to the canon law, admonition was always a necessary antecedent to expulsion: Lyndw. 10,93. That for want of three previous admonitions, the bishop had no jurisdiction. This was a judgment obtained per saltum, which ought to have been per gradus; and such judgments are void.—That the Court have sometimes looked into the justice of a sentence in a regular jurisdiction: Hob. 63, Martin and Marshall; Hob. 246, Smith and Pannel.—That if the Court will not enter into the justice of a regular visitor's sentence, yet if he has no jurisdiction they will interpose. And, if there be originally no jurisdiction, a sentence given will not assist it.—That mandamus's have been granted to restore some sort of spiritual or ecclesiastical officers; as schoolmasters, registers, &c. 1 Sid. 40; 2 Sid. 112; Comb. 144; Carth. 170.—That the appeal to the Archbishop of York lies only in disputes between the dean and canons concerning the meaning of the bishop's injunctions; which is not the present case.
Lee, C. J.—The difficulty with me is the manner of application ; for a mandamus after sentence: had a prohibition been moved for in time, it might have been granted. The cases cited for the bishop are not quite apposite; I think the matter deserves to be tried, but how to do it is the question. To be called coram nonjudice is a gravamen that will warrant an application to this Court, though there have been no farther proceedings. Certainly, if a visitor is in his jurisdiction, his acts
If a visitor acts within his jurisdiction, his acts are uncontrollable; if out of it, his acts are void.
Visitor may visit whenever he pleases.
No mandamus to a visitor to reverse his own sentence.
are not to be inquired into; if out of it, his acts are void. I shall look into Brideoak's Case, Hil. 12 Ann. and then deliver my opinion.
•wright, J.—In Brideoak's Case a mandamus was refused; [ * 26 ] but by consent the right was tried by prohibition. Adjournatur.
Postea, Hil. 21 Geo. 2, The Court gave their opinion, and per Lee, C. J.—It would be very extraordinary if the bishop should be excluded from his right of visitation, by the negligence of the dean. There is no precedent, where a mandamus has gone to a visitor, to reverse his own sentence. It was refused in Brideoak's Case.
Wright, J., of the same opinion. Visitors have an absolute power; the only absolute one I know of in England.
Denison, J.—The bishop has an original jurisdiction whenever he thinks proper to visit; but he cannot be called in till after admonition. This is like the cases of Philips and Bury, and K. and Appleford. This Court cannot control visitors.
Foster, J., concurred(o).
Rule discharged, per tot Cur'.
(o) The Court will not grant a mandanw, where there is a specific remedy at law, but the party applying must make out a legal right; if he only make out an equitable right, the Court cannot interfere; R. T. Bishop of Chesttr, 1 T. R. 396; R. v. Marquis of Stafford, 3 T. R. 646. So wifJh regard to the admission to a perpetual curacy, Lord Mansfield said: "If a qaare impedit docs lie, a mandamus does not: no case is proper for a mandamus, but where there is no other specific remedy;" Pmcel v. Milbank, 1 T. R. 401, in net. It is necessary for a party applying for a mandamus to be restored to any office
to make out a primi facie title to such of-
Dr. Young V. Dr. Lynch.
S. C. Say. R. 84, but not S. P.
A.CTION brought by a prebendary of Canterbury against the Prebendary Dean, for part of the profits of his prebend. Motion for the mav inspect plaintiff to have a rule (a) for access to the charters, statutes, fce^wter in* injunctions, and acts of Chapter. a suit concem
It was argued for the defendant, that as to the charters and ine his prebend, statutes (which were given by King Hen. 8, and Car. 1,) there ttt scasonable
is a public repository, where they may be seen. So as to the injunctions of archbishops, there is also a repository. As to the acta of Chapter, it is not proper to look at them at all times;
(a) As to the time of granting the rule, sec Hodges v. Atkis,posl, 877.
especially at audit time, which would be very inconvenient to the public business of the Chapter.
The rule was granted, but understood to be at all times seasonable (b).
Prohibition for trying the right of naming a churchwarden in Court Christian.
Williams V. Vaughan.
.M.OTION for a prohibition. Vaughan claims to appoint a churchwarden by custom, and institutes a suit in Court Christian against Williams, who was chosen by the parish. Williams moves for a prohibition. Mr. Pratt shewed for cause, that the nature of the office is entirely spiritual; Raym. 246; K. v. Jtees, Carthew, 393. But per Lee, C. J., churchwardens are considered as temporal officers in several acts of Parliament (a). Rule for a prohibition made absolute.
Lloyd ». Wooddall.
S. C. 1 Wils. 216.
W OODFALL was a Serjeant in the Guards, and arrested at the suit of Lloyd, for a less debt than is allowed by the annual Mutiny Act to warrant the arrest of a soldier (a). Being removed hither by habeas corpus; it was insisted by Ryder, At- Llotd torney-General, Sir John Strange, and Murray, Solicitor- *•
Serjeant is privileged from arrests as well as private men.
Co) By the Mutiny Act, 53 G. 3, c 17, s. 114, (same clause continued in the annual Mutiny Acts), it is enacted, that "No person listing or entering himself as a volunteer in his Majesty's service as a soldier shall be liable to process, except for tome criminal matter or for an original
debt of 201. at least, over and above all costs." It seems, that if the original debt be under 202., but with the costs it amount to more than that sum, and then debt be brought on the judgment, a soldier is entitled to the benefit of the act: see Flanders v. Nicholls, Barnes, 433 (8vo. ed.).
General, that he was equally privileged as a common soldier, « „
and therefore they moved for his discharge.
The Secretary at War sent a certificate to the Court, of the Certificate of nature of a Serjeant's station; which, though opposed, was al- we Secre'ary at lowed to be read as evidence (4). evidence.
It was argued for the motion, that Serjeants are enlisted as common soldiers, quartered as such, under the same discipline, and equally entitled to Chelsea hospital. They may be degraded to private men by the commanding officer, which a commission officer cannot; he therefore remains a common soldier, though in a more exalted degree. If a common soldier is made an officer, he is discharged thereby from his tie of enlisting; and if broke afterwards, he cannot be retained as a private man. Drummers are considered as common soldiers; and in the case of Johnson and Lowth(c), 3 Geo. 1, a gunner was discharged by this Court as a common soldier, though he has a warrant, and one shilling per diem. The end of granting this privilege was to encourage enlisting, and to prevent the service from suffer*ing by having men taken out of it for small debts. [ «0 J This end more frustrated by the arrest of Serjeants, than of private soldiers.
Mr. Ford, contra, argued that this Act was in derogation of • common right, and must therefore be taken strictly. Defendant is an officer, though a non-commissioned one. Whenever the Act intends a distinction, it distinguishes the commissioned from the non-commissioned officers. Though Serjeants are in some respects put on the same footing as common soldiers, yet this does not prove them so in all other respects. If a common soldier resists a serjeant, he is punishable for mutiny; and mutiny is defined to be rebellion against an officer. Serjeants are officers in respect to billetting of quarters. Serjeants have a command, which drummers and gunners have not. The question is, not whether he may be reduced to a common soldier, but whether he is one at present; and the power of reducing him hereafter shews he is not one now. This precedent will extend to all agents, quarter-masters, &c. who are all on the same footing as serjeants, being all of them equally warrant officers.
Lee, C. J.—This clause of the Act is intended for the encouragement of volunteer soldiers. The single question is, whether a serjeant is to be considered as a listed volunteer soldier. It is said they are properly officers: but they are considered in most respects as listed soldiers. I think they still remain listed soldiers; though they have a particular duty
(4) A copy of the Articles of War, (e) 1 Stra. 7, 10 Mod. 346, S. C. See
purporting to be printed by the King's also Bayley v. Jenners, 1 Str. 2; Methutn
printer, is sufficient evidence of them; but v. Martin, Say. 107; ltickmtm v. Studwkk,
the Court will not take judicial notice of 8 East, 105. But an out-pensioner at
tbem without; Withtri Case, 1 East, P. Chelsea is not within the Act; Bowler v.
C. 233; cited in R. v. Holt, 5 T. R. 446. Owen, Barnes, 432.