KINCHIN v. KNIGHT. fies it by insisting, that by another custom the swine ought to be rung. To this the defendant demurs, and it was argued, that the replication was bad, because two contrary customs can't be pleaded, but the first custom must be traversed. *But per Cur.-One custom or prescription may be pleaded [ 50 ] against another, where both may stand together. And these two customs may certainly stand together, being consistent with each other; the one being only a regulation of the other (a). (a) This case is recognised in Brook v. Willett, 2 H. Bla. 224, and Parkin v. Radcliffe, Bos. & P. 282. See also Bland v. Moseley, cited 9 Rep. 58 a; Spooner v. Day, Cro. Car. 432; Murgatroid v. Law, Carth. 117; Bac. Abr. Custom (H); Bull. N. P. 59. Whenever any material fact is alleged in any pleading, which will, upon issue joined, decide the cause one way or other, if the adverse Judgment for the plaintiff. party plead a matter inconsistent with, WOODEN v. BOYNTUN. PLAINTIFF had demanded a plea at eight o'clock at night, Irregularity by the rules for pleading being then out. Defendant put in a plea at surprise. seven the next night, but at six the plaintiff had signed judgment; which being within twenty-four hours, the Court set aside the judgment, on the authority of Henley and Brand, Trin. 23 Geo. 2, being the same point (b). (b) This was in K. B. Dyche v. Burgoyne, 1 T. R. 454; Bowles v. Edwards, 4 T. R. 118, acc. Defendant has twentyfour hours after demand, exclusive of Sunday; Solomons v. Freeman, 4 T. R. 557. In C. P. the defendant has in all cases till THE KING V. INGRAM. MOTION for a mandamus, to deliver up books and papers, be- Mandamus to longing to the borough of Droitwich. Mr. Bathurst shewed deliver up corfor cause, that Ingram was executor of Mr. Winnington, who poration books. had laid out several sums for the borough, and never been repaid; and that he kept these as a security for such repayment. But the Court said, that as he confessed having public books in his custody, a mandamus must go; and if he had any just cause for keeping them, he might set it out in the return. The mandamus granted (c). (c) R. v. Wildman, 2 Stra. 879; Borough of Calne, Id. 948; Sheriff of Not tingham, 1 Sid. 31; R. v. Clapham, 1 HILARY TERM,-23 GEO. II. 1749.-K. B. imparlance. BREWSTER v. Capper. S. C. 1 Wils. 261. Misnomer plead- DEFENDANT pleaded a misnomer in abatement after an imed after special parlance (a); but it appeared on the record to be thus entered, " and A. B. who was arrested by the name of A. C. comes,' &c. which the Court held tantamount to a special imparlance, on the authority of Keilw. 93 b (b). (a) It appears from 1 Wils. that the plaintiff demurred: he might have signed judgment; have applied to the Court by motion to set aside the plea; or have replied the imparlance by way of estoppel; Tidd's Prac. 475 (Ed. 1821).—See Lloyd v. Williams, 2 M. & S. 484. (b) This case has been overruled in Doughty v. Lascelles, 4 T. R. 520: per Curiam, such a plea can only be received Judgment for the defendant. after a special imparlance, which should be stated on the record. As to imparlances, see Grant v. Lord Sondes, post, 1094, Mellor v. Walker, 2 Wms. Saund. 1 e, n. (2). In K. B. a special imparlance is only granted by leave of the Court, obtained by a side-bar rule: in C. P. it is granted as a matter of course by the prethonotary within the first four days of the Term subsequent to that of the declaration. [ 52] EASTER TERM,-23 GEO. II. 1750.—K. B. Court will not mus to a visitor, if his authority grant a manda be dubious. THE KING V. The Bishop of ELY. S. C. 1 Wils. 266. MOTION in Michaelmas Term last, for a mandamus to the Bishop as visitor of Trinity College, Cambridge, to proceed on an appeal brought by Dr. Vernon, against Dr. Walker the Vice-Master of the College, for removing him from his fellowship, in the absence of the Master; and also on a complaint brought by the said Dr. Vernon, of divers enormities committed in the said College. It was sworn that the Bishop refused to intermeddle, unless compelled thereto by law. Dr. Vernon was one of the eight senior fellows of Trinity College, the statutes whereof direct all livings to be given, seniori secundum gradus, sive præsens sit sive absens, qui non habet aliud sacerdotium sive ecclesiasticam promotionem; nisi prius deponere voluerit, aut nisi ex aliquá gravissimá causá per magistrum et socios approbandá. Concionatores are allowed to hold any living of 30l. per annum, but not two cujuscunque summa; which by a subsequent explanation (which the statutes, cap. 42, allow the fellows to make) the College has declared, shall be understood of the valuation in the King's books. Dr. Vernon was rector of Bloomsbury, worth 150l. per annum, but not rated in the King's books; and the sinecure of Onwell in the gift of the College becoming vacant, he demanded the THE KING v. Bp. of ELY. presentation, and was presented (as he swears) unconditionally. The other fellows swear, he promised to resign at the end of his year of grace; at which time however the Vice-Master cut out his name, and he appealed to the Bishop as visitor; who declined acting, it being a litigated question ever since Bentley's Case (a), who was really the visitor of the College, the [ *53 ] King or the Bishop. The King, Hen. 8, was the founder; but in a body of statutes (of doubtful authority) by Ed. 6, it is ordered, quod Episcopus Eliensis sit visitator. Ryder, Attorney-General, shewed cause for the King. Sir Richard Lloyd, Mr. Hume Campbell, Mr. Ford, Mr. Pont, and Mr. Eliab Harvey for the College. [But nobody appear- A College may ing for the Bishop, Mr. Henley insisted, that the rule must be interpose, to absolute; which the Court would not hear of, but said the Col- stop a mandamus lege had a right to interpose]. to a visitor. It was argued, 1. That there was no instance of a mandamus finally granted to a visitor. Colleges are private societies; the visitor's jurisdiction a private one. The Court never interposes, but where visitors exceed their jurisdiction, and then it will grant a prohibition. The Court cannot inquire into the legality of a visitor's sentence (b). Even if a visitor exceeds his jurisdiction, and advantage is not taken in time by prohibition; the Court will not grant a mandamus; K. v. Bishop of Chester, T. 21 Geo. 2(c). To reject and to determine an appeal is the same thing. Refusal to interpose is a determination in some sort against the appellant. The Court was formerly not so nice in granting writs of mandamus; but now they will not grant them, unless the person to whom they are directed, is shewn to be the proper officer: otherwise, will supersede them though granted upon argument; K. and Sir Joshua Sharpe, T. 13 Geo. 2 (d); K. and City of Norwich, T. 23 Geo. 2 (e). The ground on which mandamus's are usually granted, is the concern which the public is supposed to have in the question: In visitatorial questions, the public is not concerned. If visitor be unreasonable, Holt said in Philips v. Bury (f), fellows of colleges must take the yoke, as well as the charity. Yet there can be no failure of justice; for the Chancellor may issue out a commission here, as in case of other charities. The stat. 1 Geo. 1, concerning the abjuration oaths, orders visitors to admit others, into the room of nonjuring fellows: On their refusal, the Court may grant a mandamus.-Hence, it seems to have been thought, that the Court had no such power over visitors before. 2. The Bishop is not visitor. His power is given [ *54 ] by a pretended charter of the Crown, 6 Ed. 6, signed indeed by the King and his Commissioners, but no Great Seal appendant thereto. And, except there be strong proof of the existence of the seal, the Court will not presume it, after so long (a) Post, 54, n. (h). (b) R. v. Bishop of Ely, 5 T. R. 475, S. P. (c) Ante, 22. (d) Gilb. Rep. B. R. 255. (e) Quare, if the case alluded to be not R. v. Mayor of Norwich, 1 Stra. 55; and [ THE KING ບ. Bp. of ELY. acquiescence. There is no enrolment, no docket, of these statutes. Another body was granted by Queen Elizabeth, contrary to these in many respects, which takes no notice of them. In the annual commemoration of founders and benefactors, notice is taken of Edw. 6, for confirming his father's grants, but not for giving statutes. Queen Elizabeth is taken notice of as one, "who gave us the statutes by which we are now governed." The fellows and officers swear to observe Queen Elizabeth's statutes. Supposing them however genuine, they are not now in force, being superseded by Queen Elizabeth's: In which there is a particular visitatorial power given to the Bishop of Ely, over the master only, for particular crimes. Statutes given by the Crown may be varied by the Crown ad libitum (g). No proof, that the Bishop of Ely ever accepted the powers given him by King Edward's statutes; but if he did, a nonuser of two hundred years will abrogate them. In Dr. Bentley's Case (h), articles were exhibited against him, before the Bishop of Ely. The House of Lords, on the appeal, were of opinion, that the Bishop had a power over him, by the statutes of Elizabeth. Accordingly, the Bishop deprived him; but the sentence could not be put in execution, but by the Vice-Master, who refused. Motion for a mandamus to the Vice-Master in B. R. and granted; but on the return was quashed (i). Then a motion for a mandamus to Bishop of Ely (4), to deprive the Vice-Master, as general visitor of the College. The Bishop did not think himself such. The present book of King Edward's statutes was then produced and canvassed, and the Court refused the mandamus. For whenever a doubt exists, whether there be a jurisdiction, the Court will not grant a mandamus. The right may be solemnly tried in the more usual forms of law; it has already been decided in this summary way. It seems, there are holes in the cover of the book, through which they suppose the strings or labels of the great seal went: Perhaps only a chain to hold it. One possibility to the con*55 ] trary destroys that whole hypothesis. *The right of the Bishop is unnatural, and contrary to the general purview of the common law, which vests the right of visitation in the founder (1); the parent being most likely to take care of the (g) See post, 84. (h) Articles having been exhibited before the Bishop of Ely against Dr. Bentley, Master of Trinity College, for misdemeanors in office, and dilapidation of the college revenues, he obtained a prohibition to the Bishop, and declared therein: the Bishop for a consultation avers, that he is general visitor: the Doctor replies, and the Bishop demurs to the replication, and judgment thereon, that the prohibition shall stand; Bentley v. Episc' Eliens', 2 Stra. 912, Fitzg. 305, Fort. 298, 1 Barnard. B. R. 192, 388, 451, 2 Id. 9. A writ of error was brought thereon in D. P., when the judgment of B. R. was reversed, and the Lords granted a consultation as to some of the articles, and a prohibition as to others; 2 Bro. P. C. 220 (2nd ed.), where all the proceedings are inserted at length. The Bishop proceeded in the appeal upon the articles allowed, and adjudged that the Doctor had incurred the penalty of deprivation of his office of master. For the subsequent history of this business see the Biographia Britannica, vol. ii. 238 (2nd ed). Consultation is a writ, whereby a cause formerly removed by prohibition out of the Ecclesiastical Court or Court Christian, to the King's Court, is returned thither again; Burn's Ecc. Law. (i) Dr. Walker's Ca., Ca. temp. Hardw. 212, 1 Burn's Ecc. Law, 455 (ed. 1809). (k) Andr. 176. (1) See post, 82 et seq. child. It is not law, to say that statutes once given to colleges cannot be altered. Even Henry the Eighth's statutes (if any) might have been revoked. But Edward the Sixth is on a footing very different. Any heir, either the next or the tenth, have the same powers; therefore one may rescind another's acts; Elizabeth might revoke Edward's statutes. One visitor may repeal another's injunctions. By consent of the College and visitor, these statutes might therefore be rescinded (m), and this consent must be presumed from so long acquiescence (n). It may be presumed, that even Edward himself cancelled them. On the former motion, Probyn, J., declared, if it were necessary to presume an act of Parliament, for annulling these statutes, he would presume it. All the Queen's counsel in Queen Anne's time (Sir Joseph Jekyll excepted) were of opinion, on her reference to them, that these statutes were invalid. THE KING ข. Bp. of ELY. In support of the rule, Mr. Henley, Mr. Evans, and Mr. Joddrel argued,-1. That mandamus will go to a visitor. Visitors have a jurisdiction, are judges over a large body, and the public is therein concerned. Fellows of colleges are not devested of the rights of justice; but the Court will control visitors, if they exceed their power, a fortiori if they will not exercise it (o). If a Court of Delegates refuses an appeal, the Court would grant a mandamus; or in any other case of a dernier resort of justice. In Usher's Case, 5 Mod. 452, it is not determined that a mandamus will not lie; but the rule was discharged on other reasons. Reason why no instance of a mandamus granted; because the clergy are not fond of refusing any jurisdiction. The Bishop of Ely received the appeal, does not now appear by his counsel, and has therefore no objection to the jurisdiction. To allow the Crown and the College to interpose, is obliquely giving them a prohibition before they are aggrieved; which is contrary to the general rule. Whenever the superior Courts * are ousted of their general jurisdiction by [ 56 ] any special one, it is their duty to see that special jurisdiction exercised. This rule will not determine Dr. Vernon's right, but only compel the visitor to determine it. Mandamus to restore to a fellowship was granted so early as the reign of Edw. 2; 1 Lev. 23(p). This Court must protect freeholds; a degree is a freehold, Bentley's Case (q); a fortiori a fellowship. Though this right is subject to ecclesiastical jurisdiction, yet the Court will compel an exercise of that jurisdiction. F. N. B. 248. There are many new cases wherein the Court grants mandamus's: therefore, though no precedent can be shewn, the Court may properly do it, if reasonable. 2. That the Bishop of Ely (m) Quære tamen; see post, 84. (n) As to presumption arising from acquiescence, see Daniel v. North, 11 East, 372; Barker v. Richardson, 4 B. & A. 579 and as to presumptions generally, see Stark. Ev. Part iv. 1234. (0) R. v. Bp. Lincoln, 2 T. R. 338, n. (a); R. v. Bp. Ely, 5 T. R. 475, S. P. (p) Cited in Dr. Widdrington's Case, in which, however, a mandamus was refused: S. C. 1 Sid. 71, 1 Keb. 234. (q) 2 Ld. Raym. 1338, arguendo. Quare tamen. |