H. T. 1846. BRENNAN v. MULLINS. Fitzgerald refusing to consent to a stet processus, and to pay the costs of the motion, the motion was refused with costs. Per Curiam.* ORDERED-That the cause shown against said conditional order be allowed with costs, to be paid by the defendant to the lessors of the plaintiff, and said conditional order be discharged without further motion. On motion for DUNDAS, moved for liberty to issue a scire facias to revive a judgment. liberty to issue The affidavit, which was in the common form, had been sworn before a sci. fa. to revive a judg- the President of the Civil Tribunal, and the signature of plaintiff ment, the plaintiff's affi- was attested by the Mayor and Sous-Prefect of Verdun, in France, with their respective seals attached thereto. davit had been sworn before the President of the Civil Tribunal, and signature of the plaintiff attested by the Mayor and Sous-Prefect The French Consul, resident in Dublin, had by affidavit stated that there was no resident British Consul or Notary Public at Verdun, that the Civil Tribunal was a recognised Court of Justice; and also verified the seals attached to the affidavit, as well as the of Verdun, in handwriting of plaintiff. France; and the French Consul, resi dent here, by LEFROY, B.*-Take the order. affidavit stated that there was no resident British Consul or Notary Public at Verdun, that the Civil Tribunal was a recognised Court of Justice; he also verified the seals attached to the affidavit; the usual order was granted. • Solus. T. T. 1845. Queen's Bench. THE QUEEN at the Prosecution of D. C. HERON, v. THE VISITORS OF TRINITY COLLEGE, DUBLIN. (Queen's Bench.) MANDAMUS. This case came before the Court on a concilium* to determine the sufficiency of a return to a mandamus.-[The mandamus and return are so fully stated in the judgment, it is unnecessary here to insert them.] May 23. This Court will grant a mandamus to compel the Visitors of Trinity College, Dublin, to proceed to O'Hagan, with whom were Holmes and Hancock, for the prose- hear and de cution. termine the appeal of a complains of an undue elec tion of a College. Scholar in said There are several formal objections to this return. It is incon- party who sistent, as relying on two distinct grounds; first, on total want of an jurisdiction; and secondly, in stating that in the exercise of a discretion vested in the Visitors, they had rejected the appeal; this repugnancy alone would entitle the prosecutor to a peremptory mandamus: Rex V. The Mayor of Cambridge (a); Wright v. Fawcett (b); Regina v. The Mayor of Norwich (c).—[PERRIN, J. Must it not be read, that feeling in the exercise of their discretion that they had not jurisdiction, they therefore rejected the appeal?] Supposing the causes not inconsistent, the return is uncertain: Bentley's case (d); Rex v. Hutchinson (e); Rex v. Mayor of Lyme Regis (f); it says nothing as to the particular matter, and contains no averment that the Visitors have not authority to interfere with the board. Whether or not they had jurisdiction should have been positively averred; it is not sufficient to say they are advised and submit that they had no jurisdiction, and whether that be matter of law or of fact it should have been specially averred : Anonymous (g) ; Rex v. Mayor of Coventry (h); The Queen v. Mayor of Hereford (i). The power vested in the Visitors by common law to hear such appeal is unre strained by the College charters or statutes. ⚫ It has since been enacted by the 9 & 10 Vic., c. 113, s. 6, that when a prose cutor intends to object to the validity of a return to a mandamus, he must do so by demurrer. F T. T. 1845. V. TRINITY COLLEGE. As to the jurisdiction. If the Provost and Fellows have power to admit or reject Scholars without any appeal to the Visitors, then THE QUEEN there is no appeal at all. The charter of Charles the First in the 4th section gives the power of election; the 5th section is in reference to the qualification of the Scholars; and the 21st section has regard to the oaths to be taken. So far as those sections are concerned no arbitrary discretion is given, but according to certain specified rules and conditions. Now, what is the visitatorial power? In all colleges there are two jurisdictions, one as regards internal government, the other as regards Visitors without reference to government: 1 Burn's Ecc. Law, by Phillimore, 438; 7 Com. Dig. tit. Visitor; Philips v. Bury (a). Visitors may be general or special, and if they be general they have a specific power as to the matter of the election: King v. Bishop of Ely (b); King v. Bishop of Lincoln (c); Widdrington's case (d); Fellows of Cambridge v. Todington (e). These cases establish that the power of a general Visitor is a power of redressing grievances and regulating elections in a college: Queen's College, Cambridge (f); 1 Burn's Ecc. Law 457. If the Visitors be general there is a power of appeal, and if so, we are entitled to a peremptory mandamus: Green v. Rutherforth (g); The Attorney-General v. The Master and Fellows of Clare Hall (h); Rex v. Bishop of Worcester (i); Com. Dig. Visitor A. 15. In the writ of mandamus the Visitors of Trinity College are called Visitors generally, and this is not controverted on the return, and the powers given by the statutes are very general: Mac Donnell's Ed. of College Statutes, pp. 26, 53, 102; Ex parte Ravensworth Hospital (k). As to the question of discretion, if the jurisdiction be well established, then the argument as to discretion is at an end, for if the Visitors have jurisdiction the Court will compel them to hear the appeal. They have set out on the face of the return a charter of William the Fourth, showing that they intend to rely on this discretion, but why should they have an absolute discretion? That charter does not interfere with the visitatorial power, it merely leaves it optional with the Visitors as to the times they are to hold visitations: Burn's Ecc. Law, p. 442; a peremptory mandamus should therefore go, because this return is (a) 2 Term Rep. 352; S. C.4 Mod. 106. (e) 1 Burr. 158. (g) 1 Ves. 465. (i) 4 M. & Sel. 420. (b) 5 Term Rep. 475. (d) Sir T. Ray. 31. (f) 5 Russ. 65. (h) 3 Atk. 663. (k) 15 Ves. 314. uncertain and argumentative, and because it avers a want of juris- T. T. 1845. diction which the Visitors clearly have. S. B. Millar, with whom was Napier, in support of the return. There is no inconsistency in this return, but whatever may be the question upon its sufficiency, the writ of mandamus is in itself insufficient, and where a writ of mandamus is set out on a concilium, the proper course is to object to the writ: Queen v. Powell (a). The Chapters De Scholaribus et Discipulis, and De Electione in the College statutes, are those which show the defective nature of this writ. The charter of Charles the First, constituting the Provost and Senior Fellows the body to elect Scholars, expressly directs that they should be elected according to the statutes (juxta statuta nostra), and that those so elected should have similar privileges with former Scholars, according to the tenor of such statutes; and the statutes are declared to which the reference in the charter was to apply. The writ of mandamus, after stating the existence of such statutes, sets out that on such election "regard should be had to "poverty, talent, learning and virtue, and the more any of the can"didates exceeded in these things, the more, as was just, he should "be preferred." It sets out no further portion of that chapter De Scholaribus, or of the statute relating to the qualifications in the candidates for scholarship (c. 5, p. 32, College stat.,) nor is there any averment in the writ that Heron had any of the qualifications so set forth in that chapter, or that any of the other candidates who had been elected had not any such qualifications. It alleges two reasons for Heron's rejection, viz., that he would not receive the sacrament, and that he was a Roman Catholic, and it adds, that "they rejected him for no other cause," not that they so stated. This is insufficient: Rex v. Margate Pier Company (b); Regina v. Hopkins (c). These two allegations of the reasons assigned could only be entertained by this Court, on the assumption that the Provost and Senior Fellows had violated their duty as prescribed by the statute, and yet they are no parties to this prosecution. The 25th chapter of College statutes, p. 84, prescribes the mode and time of election; the votes are simply to be written down, and no statement of reasons is to be offered, and yet the Court is called on to grant a mandamus on grounds which could only be known by a disclosure of the Provost and Fellows, contrary to the statute. Queen's Bench. T. T. 1845. บ. TRINITY COLLEGE. The authority of the Provost and Fellows in the election of Scholars is quite absolute; for where qualifications of so varied a nature THE QUEEN were required, as are specified in the charter of Charles, the absolute authority or discretion in the selection of Scholars must ultimately be vested in some body or person; and in none could it be more fitly placed than in those who have an opportunity, from local situation, of acquiring the best information on these subjects. The only controlling power is their own consciences; and as they are by the charter to sit in secret and give their votes "simul et semel" without assigning any reason, there are no materials on which a visitatorial inquiry could be held. In the 4th chapter or statute, p. 35, tit. De auctoritate præpositi et septem sociorum seniorum, are these words :— "Volumus igitur ut præpositus et horum seniorum pars major "(nempe quatuor) collegii regimen, electiones omnes sociorum offici"ariorum et discipulorum et ministrorum collegii graduumque "collationes definiant et concludant." These words, "definiant et concludant," taken in connection with the chapter, "de formâ electionis," show clearly that the Provost and Senior Fellows were to have the absolute selection of Scholars. In chapter 4, in describing the authority of the Provost and Senior Fellows, the words "ut definiant electiones discipulorum” are used with the word “concludant;" and in the statute of Charles (p. 27), prescribing the authority of the Visitors, whose authority in matters within their jurisdiction cannot be questioned, the same word "definiant" is used. So that the authority of the Visitors is derived from the same charter and statutes whence the Provost and Senior Fellows have derived theirs ; and these are the charters and statutes now in force: Senior Fellows of St. John's College v. Toddington; The King v. St. John's College, Cambridge (a). 66 The Visitor is made by the founder: Philips v. Bury (b); and his powers are limited within the rules of the foundation; and the return here accordingly states the portion of the statutes giving the visitatorial power "ut omnes lites actiones et controversias quas præpositus et major pars seniorum sociorum pro tempore "existentium non possint componere dirimant et definiant." The present matter is not a dispute between members of the College, but a complaint by a dissatisfied student against the governing body, who have adjudicated upon it, and in which the Visitors cannot interfere. The Primate and the Archbishop of Dublin are not general Visitors; they have only a limited visitatorial authority in the particular cases specified in the charter of Charles and |