Page images

The King is the visitor of Trinity College. If there are traces of a seal Bp. of ELY.

on an old deed, it is tantamount to a seal (r). Apply this to the marks on Edward the Sixth's statutes. If these were never authentic, what condition was the College in, from the time of Henry the Eighth to Queen Elizabeth? A repeal shall not be presumed. In the K. against Skinners' Company, a recent case, where there were letters patent of K. Jac. 1, which the corporation had opposed with great vigour, and appealed to the council, who ordered a revocation; yet the Court would not presume a repeal, but ordered it to be tried. Queen Elizabeth in the preamble to her statutes recognizes these; sanctissimis legibus ad pietatem et doctrinam commendavit: can it be doubted, whether the College ever accepted statutes of such a character? In the commemoration, King Edward is said to have confirmed his father's grants. But how? By this book, no otherwise. The commemoration-day is appointed by this very book. The College act under it, and dispute it in the same breath. It may be objected, that the Bishop would not have accepted Queen Elizabeth's special appointment, if King Edward's general one had been valid. But the general power of visitation is only once in three years: Queen Elizabeth there

fore removes a supposed difficulty, by allowing the Bishop to Visitors, though visit the Master as often as he pleases. [Lee, C. J., said, Virestrained to

to sitors (however restrained by statutes) may visit as often as certain times,

visit when- called in(s).] The visitatorial power, when once vested, was ever called in. the right of the see of Ely, and the Crown could not repeal it. [ *57 ] The case of Dr. Bentley, *11 Geo. 2, is not similar to the pre

sent(t). That was to grant a mandamus to one, to oblige another to do an act, which is contrary to the rule laid down in Qu. and Mayor of Derby in Salkeld (v). Suppose there was no seal to Edward's statutes. That will not be necessary in the appointment of visitors. If it be, the Court will presume it.

The statute of frauds requires three witnesses to a will, who must sign in each other's presence; if there be three, the Court will not expect it to appear that they signed it in each other's presence, but will presume it(u). So the Court will presume a seal, if every other requisite be there(w). Elizabeth's statutes suppose the Bishop to continue visitor. On the Master's misbehaviour, it directs the appeal to be, not episcopo Eliensi simply, but visitatori episcopo Eliensi. If visitatorial power be suspended, it does not devolve to the founder or his heirs; but to the Court of K. B. In the case of Manchester College (x),


(r) Where the seal to a deed is proved to have been torn off by accident, it will be evidence to be left to a jury, where the deed is only given in evidence to prove another issue; but where the issue is directly on the deed, on non est factum, a deed without a seal would not prove the issue, however the loss of the seal might be accounted for; Bull. N. P. 268. See Seaton v. Henson, 2 Show. 28, 2 Lev, 220; Lady Argoll's Case, Palm. 403; and also Smith v. Woodward, 14 East, 585.

(s) 2 T. R. 348, acc. post, 85.
(1) R. v. Bp. of Ely, Andr. 176.
(v) 2 Salk. 436.
(u) See, ante, 11, n. (k); post, 455.

(w) So, where an old indenture of apprenticeship was lost, the Court presumed that it had been regularly stamped; R. v. Long Buckby, 7 East, 45: see Stark. Ev. Part iv. 1250.

(x) By the name of R. v. Episc. Chester, 2 Stra. 797.

[ocr errors]

the same person happening to be both warden and visitor, stat. The King 2 Geo. 2, was made to enable the Crown to visit during such suspension, which shews the sense of the Legislature. When a college is founded, the founder may make what laws, or appoint what visitor he pleases; but on a change of statutes, the society must accept them; else not valid. By the charter, power of making statutes was reserved to Hen. 8. He died before any made. The power devolved to Edw. 6. Same evidence that K. Edw. gave statutes, as that there are any statutes at all, because recited in Qu. Elizabeth's. If that recital false, the Crown was deceived, and the whole grant is void. Objection. K. Edward's statutes never acted under. There might be no opportunity to exercise the visitatorial power; therefore no argument can be drawn from non-user. Nor has the Crown ever acted as visitor. 3. As to the circumstances of this case, a probable ground is sufficient to grant a mandamus. K. and Ward, H. 4 Geo. 2(y), mandamus to admit an officer: return that the office was full: held bad, because the mandamus gives no right, but only a possession in order to try the right. So here, Dr. Vernon only desires to put the right in a method of trial. It would therefore be no inconsistency, should a mandamus go first, and a prohibition afterwards; for this is only a mode of trial, and if the Bishop be really visitor, Dr. Vernon has no other way of trying it. Court will not grant a mandamus *to put the sentence of an inferior Court in execution, and [ *58 therefore quashed the mandamus to Dr. Walker, H. 9 Geo. 2(z). And in the K, and Bishop of Ely, T. 11 Geo. 2(a), the Court did not think the statutes of K. Edw. sufficiently established, to put a sentence in execution by virtue of them; but this was a different case from the present, which only demands a trial, not an execution.

Per Cur'. LEE, C. J.-It is an improper question for the Court to enter into, upon affidavits, whether these statutes are in force. It was much controverted in 1736, and then not settled. Nor will we now determine the power of granting mandamus's to visitors. Dr. Usher's Case is ill reported in 5 Mod. 452. It was a motion for a mandamus to the visitors of University College. Two questions were argued. 1. Whether the persons to whom the mandamus was prayed, were real visitors. 2. Whether a mandamus would go. The Court considered only the first; and it went off for the consideration of the Court. At present, it does not appear clearly to the Court, that the Bishop is the visitor. And it would be unjust to force a man to exercise a doubtful jurisdiction, by mandamus. If he obeys, he is liable to prohibitions; if he returns himself not visitor, to actions. The Court never grants a mandamus, except it indisputably sees, that there is a power lodged in the person, to whom the mandamus is prayed. This was the foundation of the determination in the îl Geo. 2, Pasch. 1738, The K. and

[ocr errors]

the Illayed. "Then lodged

(y) 2 Stra. 893.

(2) Cas. temp. Hardw. 212; 1 Burn's E. L. 455.

(a) Andr. 176.

The King Bishop of Ely, on the very same evidence as the present.

When this right is settled, it is time enough to enter on the Bp. of ELY.

other question.

Wright, J.-In Brideoak's Case, H. 12 Anne, the Bishop of Winchester had expelled Brideoak from a fellowship of Winchester College. He applied for a mandamus to restore him. It did not appear clearly that the Bishop was visitor, therefore the Court refused it; but by consent the right was tried by prohibition.

DENISON, J.-In case of private jurisdictions, the Court has inclined not to intermeddle. There is no express determination,

and no precedent of a mandamus granted to a visitor in any [ *59 ] case, therefore it is certainly a doubtful question. As * to

the present application, if we grant it, we may make a false suggestion. And it would be nugatory to grant a mandamus first, and a prohibition afterwards.

FOSTER, J.-It would be of ill consequence, to authenticate a body of laws, that have lain dormant for two hundred years. The case of the Mayor and Corporation of Newcastle is a strong one to shew, that the Court will not grant a mandamus, where it will introduce confusion and disorder.

Rule discharged per toť Cur.'(6).

inclinenisoxohibition refuses Learlycol, for a from am the Biel

the Bindamusowshiphop

(6) See more as to visitors, post, 90 (h).

TRINITY TERM,-24 Geo. II. 1750.-K. B.

The King v. NOTTINGHAM. Rule to inspect, THERE had been a mandamus to fill up the Corporation, to when grantable, which the Corporation made a return; and then a rule was and how long in force.

made to inspect the books of the Corporation. Afterwards the prosecutors deserted that mandamus, and moved for a new one. And now Mr. White moved for an attachment against the mayor &c. for not obeying the rule to inspect the books. But the Court held, that the course was, in informations in nature of quo warranto, to grant such rule for inspection, pending the rule to shew cause; but in mandamus's, not till after the re

turn(a); that on the return being allowed, the cause was at an [*60 ] end, and the rule of course expired; but if they * thought

proper to bring an action for a false return, a new rule to inspect would be granted. So denied the present motion (6).

(a) R. v. Hollister, Cas. temp. Hardw. 245; R. v. Justices of Surry, Say. R. 145, acc. But Ashurst, J., thought the rule should not be granted, till the rule for the

quo warranto was made absolute; in R. v. Babb, 3 T. R. 581.

(6) As to inspecting books, &c. in civil actions, see Hodges V. Alkis, post, 877.

Jones v. NEWMAN. MOTION for new trial in ejectment, wherein the lessor of the Parol objections plaintiff was heir at law; and the defendant's title arose upon a to a will may be

encountered by will, which devised the premises to John Cluer, of Calcot, under

parol evidence. whom the defendant claimed. But the plaintiff gave evidence, that at the time of making the will, there were two John Cluers, father and son; and that therefore the devise was to the father, who died before the testatrix, and so the devise was lapsed. Upon which the defendant offered to prove, by parol evidence, that the testatrix intended to leave it to John Cluer, the son; but the Judge would not suffer it, and a verdict was found for the plaintiff. But per totam Curiam, the Judge was mistaken. The objection arose from parol evidence, and ought to have been encountered by the same.

So granted a new trial (c).

(c) See Lord Walpole v. Earl of Chol- . don, 2 P. Wms. 135; Careless v. Careless, Rondeley, 7 T. R. 138, and Stephenson v. 1 Meriv. 384. And if no direct proof can Heathcote, 1 Eden, 38, notes.

be made of the testator's intent, the devise An ambiguity, ambiguitas latens, which will be void for uncertainty. As to parol is raised by extrinsic evidence, may be ex evidence being admitted to explain written plained in the same manner; Lord Chey contracts, see Preston v. Merceau, post, ney's Case, 5 Rep. 68 b; Altham's Case, 1249. 8 Rep. 155; Hob. 32; Harris v. Bp. Lon

THE KING 0. Lord MONTACUTE and Others.

S. C. 1 Wils. 283. MOTION for a mandamus to Lord Montacute, lord of the Mandamus will manor of Midhurst, to hold a court baron; and to certain of go to a lord to the suitors, to compose a homage, and present some conveyances

sem sume come anyos baron, and to of burgage tenures within said manor; upon a suggestion by the homage to affidavit, that several conveyances were duly executed, and that present conveyat the general court in August last, they were offered to the ances of burgage

August last, they were onereu vuc tenures, whether homage, who refused to present them.

those conveySir R. Lloyd, Mr. Hume Campbell, Mr. Green and Mr. ances appear to Etans shewed for cause; that this was a dangerous precedent. be!

odont be legal or not. Mandamus is never granted without some complaint of refusal. There is no refusal in the lord. He held his court regularly last August, therefore this mandamus would not lie at common law. Nor upon the stat. 11 Geo. 1, c. 4; for that gives no mandamus, except where the lord neglects to hold a court, or where something wrong is done at that court, when held(a). As for * the tenants; the homage is to present deaths and *61 ] alienations upon oath; and the Court will never grant a mandamus to present a fact upon oath, except the fact be quite evident; if therefore the Court grants this, they will determine

(a)Vid. Rast. Entr. 342 b (Fals Judg. ment) where, in a writ of false judgment, the lord would not hold his court, and thereupon a distringas issued to compel him: and afterwards his suitors would not return

the proceedings, and thereupon a distringas issued to compel them. S. P. Fitz. Abr. Faux Judgment, pl. 7; Smith v. Dean of St. Paul's, Show. Par. Ca. 67." MS. Serj. HILL.


The King upon motion the right of these burgage tenures. Many things LORD MONTA

are necessary to be done in order to present; they must enquire
whether the alienation is according to the custom, whether a
fair or fictitious transaction, &c. A homage is in the circum-
stances of any other jury. There is no instance, where a ho-
mage or jury have been commanded to find a particular fact.
For the Court will not order persons to do a thing sinful, and if
they present contrary to their persuasions, it is a sin. The
Court last Term refused a mandamus, to swear in the Mayor of
Camelford, without an affidavit that he was not sworn in already;
otherwise mandamus's would be endless. The intendment of
law is that every man will do his duty, till the contrary appears.
No mandamus can therefore be issued against the lord. As to
the tenants, the Court will not grant a mandamus to complete
private rights, which these are; for the consequential privilege
of sending burgesses to Parliament is immaterial: else a man
might come here and pray a mandamus, to complete his title to
a freehold of 40s per annum in a county. In the K. and
Clithero, Comb. 239, a mandamus prayed to the jury of Clithero,
to present two freemen to the bailiff, and for him to admit them.
Holt said, We will grant a mandamus to the bailiff to admit;
but not to a jury to present upon oath. This is also a manda-
mus moved for by five persons, and one writ of mandamus shall
not include five several cases; Salk. 433, Case of Andover. If
a lord refuses to hold a court or to admit, the only remedy is
by subpæna in Chancery; 4 Rep. 28; 2 Cro. 368; Moor 842.
If a copyholder refuses to present what is given in evidence, it
is a forfeiture of his copyhold; 3 Leon. 109; Dyer 211 b. The
same in a court leet; Stat. 4 Edw. 1. There is no instance of
a mandamus to hold a court on any particular day, except in
boroughs for the admission of officers, in furtherance of public
justice. And wherever a mandamus has gone to admit free-
men, it is where they have an inchoate right by birth or servi-

tude; but here, there is no inchoate right. Nor will the end | proposed be * certainly attained by this unusual method.

Though a presentment should be made, yet the lord is not always bound to admit on presentment; as if an alienation is made to a corporation, a Court of Equity will not compel the lord to admit them on presentment, because he may lose his services.


24 Geo. 2.

MR. Bathurst, Mr. Henley, Mr. Ford and Mr. Joddrel, in support of the rule argued, that this was not merely a private right; the public are deeply concerned in it. All burgage tenures are of the same nature. The presentment required is only relative to the franchise of voting; the estate and freehold are vested sufficiently without it. If no presentment be made, the franchise only is lost, and not the estate. A mandamus is the proper method to enforce the King's charter, Wheler and Trotter, P. 8 Geo. 2. We have shewn a refuser in the jury, and it is not necessary to shew, that every person concerned has refused. Mandamus is certainly necessary to the homage;

« PreviousContinue »