College the candidate, but if it did, where a party hath several remedies, St. John's he may take which he pleases. Distress was originally applicable to rent, yet if it was recovered by action, the rent notwithstanding must be paid; though a penalty be given, yet the specific remedy is not lost. In support of the rule for a prohibition it was argued, the power of a visitor is arbitrary, and yet conclusive in the first instance. All fundatory rights arise from the property of the donor. A founder has the nomination of his visitor; and unless he dispose of this power, it remains to his heirs; and if he die without heirs, it goes to the crown. It is settled, that a founder, or his heirs (if he does it not), may make a visitor; may give him partial or general powers; if partial ones, and he exceeds them, that excess becomes a nullity, and lets in the law; and this court, whether they can give relief or not, will see that these jurisdictions keep within their bounds, and will grant a prohibition where there is such excess of power, as well as where there is no power at all. If Dr. Keton made no visitor, the power remains in his heir; and if no heir, it is in the crown. Where there is a probability of doubt, whether the party to be prohibited is doing right or not, the court always gives him liberty to declare in prohibition, otherwise the party would be without remedy. 2 P. Wms. 325, was cited to show, that a visitatorial power is not by implication to be inferred. It must depend upon a direct appointment. The arguments drawn from the word visitor are not conclusive; for the word is not used with any designation of the power. A man may make an executor to execute one part of his will, and another executor for another part. So a visitor for a particular purpose, cannot (because he is so) be a general visitor. We admit the bishop visitor for some purposes, but not a general visitor. He is limited by the statutes, in the time, the objects, the manner and form of his visitation. It is objected that the words sit visitator, in Dr. Bentley's case, were held sufficient to make the Bishop of Ely general visitor. But that was not the ground of the judgment. Lord Raymond considered in that case what the crown had in view, that they meant to make a general visitor over all persons and all things; there was no reservation in the crown to make new statutes, as there is in this case; and the great doubt was, whether the crown should take the right vested in the bishop out of him; and if Queen Elizabeth's statutes had not been accepted, the crown should not have resumed that power. The power given by the statutes of this college to the vicechancellor in certain cases, and to the masters of Trinity, King's, and Christ's colleges, are inconsistent with a general visitor. Queen Elizabeth reserves to herself the power of giving new, V. Todington. Who is Visi tor, determinable by the Queen's Courts. [ 470 ] St. John's College V. Todington. Who is Visitor, deter minable by the Queen's Courts. and of interpreting these statutes; and interdicts therein the bishop or vice-chancellor. By the statutes the bishop must be called in, and he is limited within fifteen days. A single person cannot call him to visit. Dr. Keton's foundation being antecedent to Queen Elizabeth's statutes, and Bishop Fisher's statutes being those which the college was governed by at that time, Queen Elizabeth could not make his foundation subject. to the Bishop of Ely's visitatorial power. Trinity Hall hath the same statutes as Caius College, and yet they have not the same visitor. The case of Green v. Rutherforth is here not applicable. That was a mere trust, and therefore the bishop could have nothing to do with it. Lord Hardwicke could only determine upon the statutes in the defendant's plea. But all the statutes being now before the court, and there appearing powers and provisions made by them inconsistent with the bishop's power as general visitor, this court will determine otherwise. The nomine pæne is a common law right, and the visitor hath nothing to do with it. A specific remedy is provided, and to be had elsewhere, and not from the Bishop of Ely. By the indenture, the power of distress is given to Dr. Keton, Fitz[471] herbert, and the chapter of Southwell, their heirs and successors. The remedy is not inadequate; for, if followed, it will come to the same thing. The chapter of Southwell are only trustees for Todington; and if he is injured, he may in equity, showing his proprietary right, compel them to distrain; and if he does, the college must ultimately come here; and the right being determined at law for him, the court will grant a mandamus to admit him to the fellowship. And this is the ground why the prohibition should go, because this court will not suffer the power of a visitor to be exercised wrongfully. By Lord Mansfield, Chief Justice,— "I was very desirous to see if any further light could be had in this case from the ancient constitution of the college, and therefore directed that Bishop Fisher's statutes should be looked into and laid before the court. "It was insisted upon in the first argument, that the court should at least give the plaintiff leave to declare in prohibition, that this matter might receive a more solemn determination. But I own I had strong objections to it then, and I will now say a few things upon that head before I come to the merits of this case. "When the court inclines to grant a motion for a prohibition. there the defendant has a sort of right to insist that the plaintiff shall declare in prohibition. But where the opinion of the court is against granting a prohibition, the plaintiff has no such right to insist upon declaring in prohibition. We cannot compel the plaintiff in prohibition to declare, but the statute of 8 & 9 Will., c. 11, makes him liable to costs; nor can we, for the same reason, compel the defendant to defend against his St. John's will. College V. Todington. Who is Visi minable by "Only consider what would be the consequence in such a case as this, if the court was to permit the plaintiff to declare. tor, deterIt would have many bad consequences. A fellowship is a the King's temporary support; and sometimes is limited to a certain num- Courts. ber of years. Is the promoter (or fellow) to take upon himself the expense of such a suit, which may go through all the forms of law, even to a writ of error, only because the plaintiff asks it? Or is the visitor to do it? If neither of them will do it, the consequence will be that every college shall do as they please, and may do this even in a case where the authority of a visitor is well founded. 66 Having said thus much in a case where the court is against the prohibition, I must add, that it is much better and more convenient to all parties to have this matter determined in a [ 472 ] summary way. "I come now to the merits of the question. I must own I am confirmed in the same opinion I was of when this matter was first stated to the court. "There are two general questions: "1. Whether the Bishop of Ely is visitor of this college, as to the election of fellows; for that is the point which is put and insisted upon in the suggestion; and the master and senior fellows only complain. "2. Suppose the bishop is such a visitor, and may visit the fellows upon the old foundation, yet whether he may exercise that power upon Dr. Keton's fellowships, which are ingrafted fellowships. "I will make here some observations and lay down some general rules concerning this power of a visitor. "This power, though a summary one, is certainly very convenient for these learned bodies. It has often been so considered by themselves. It is called forum domesticum. The exercise of it is in no case more convenient than in that of elections. When the qualifications and proprieties of candidates are to be determined, what confusion would be made if these were to be determined at the common law, and the party who had the right were yet kept out of the profits in the mean time. "But be this power convenient or not, we must take it as it is established by law. "When there is a visitor, he is so without appeal; as it was adjudged in the case of Philips v. Bury (y). "Having premised this, I will mention some of the rules. concerning this power. "The law considers these foundations in two lights: first, as (y) [That is to say, visitor of a college; the words of Lord Holt are, "If he be visitor as ordinary, there VOL. I. lieth an appeal from his deprivation; Ꮓ Ꮓ St. John's College V. Todington. Who is Visitor, determinable by the King's Courts. they are corporations; and in this respect they are creatures of the crown's charter, governed by the law of the land. Secondly, as they are eleemosynary, and in this respect they are creatures of the founder's bounty, and subject to the power of visitation. "The founder may delegate his visitatorial power either generally or specially. He may do this either by general words, or he may prescribe a mode for the exercise of any part of this power. But if a mode of visitation is prescribed in any par ticular case, that will not take away the general powers incidental to the office of a visitor; of which powers that of deter mining concerning elections hath been held to be one. Sit visitator has been held a sufficient appointment, and to give [473] all powers incidental to the office. No set form of words is You must look into the whole tenour of the sta tutes to see whether the power be given or intended to be given. "When the statutes in question were made, visitatorial power was not so well understood as it has been since, and is at this day. necessary. "A founder may split this power into a number of statutes for particular cases, and yet the court may consider upon the whole who is general visitor. "In the case of Clare Hall, in Cambridge, Attorney-General v. Talbot, H., 1747, Lord Hardwicke argued, that there was a general visitor. One of the statutes directed, that the chancellor of the university should visit yearly, if any thing wanted to be corrected. A second statute gave him power to interpret the statutes. A third statute reserved to the Countess of Clare a power to give new statutes, but expressly excluded her heir from doing so; and there were no general words appointing the chancellor to be visitor. But as the heir was expressly excluded from giving new statutes, and the chancellor of the university had power to interpret and to visit, although not expressly appointed visitor, yet Lord Hardwicke held he was a general visitor. "I take this to be clear, that a founder may appoint a visitor with general power, and yet except particular powers in par ticular cases. "These being the general rules relating to visitatorial power, I will now consider this case upon the statutes themselves. "The present constitution of the college must be taken as it stands the statutes of Elizabeth. The old statutes or old upon constitution are no otherwise material, than as they may serve to give light to the new ones, which refer to them. As in the construction of an act of parliament, an old statute may give light to the construction of a new one. "The question is, whether upon these statutes the bishop is general visitor of the college, except in special cases provided for in the statutes. "In case where a body of statutes is given by a founder, I doubt whether a visitor can give or make new statutes, unless power is given him for that purpose. St. John's College V. Todington. Who is Visi minable by "Where there are no statutes to prohibit him, there are cases tor, deterwherein injunctions have been given by a visitor. I observe the King's this, because upon these statutes I observe a jealousy in the Courts. founder, that the right of giving statutes might not be taken [ 474 ] from the crown (the heir of the founder). "The bishop was to be visitor, not legislator. He was to give no new statutes. By the statutes the legislative power is preserved to the crown. "It hath been held (in Dr. Bentley's case), that where a body of statutes hath been already given, the crown (though the founder) cannot alter them without the consent of the college. "Here the power of making statutes is expressly reserved to the crown, and is particularly guarded. And if the bishop acts contrary to the statutes, he acts contrary to his authority. "The provision made in chap. 45, De modo procedendi contra magistrum, wherein the vice-chancellor, the masters of Trinity, Christ's and King's Colleges, are to interpose, amounts to an exception of the general visitatorial power in that particular case. So in other particular cases. But the question is, whether all the rest of the visitatorial power is not in the bishop. "This depends upon three statutes: chap. 2. De electione magistri; chap. 50. De ambiguis; and chap. 51. De visitatore. It is observable that chap. 2 refers to the bishop as the known visitor of the college, and by words which make him a visitor-ad collegii visitatorem veniatur: and though this statute doth not describe him by name as visitor, yet the statutes treat him as well known to be the general visitor. "By chap. 50, De ambiguis, express authorities are given to the bishop as visitor, to determine, interpret, and declare upon the statutes. This is as large a power as any visitor can have; he is not to make new statutes, for that is contrary to his power. The words in this statute, visitationem autem hujus collegii episcopo Eliensi commendamus, are most strong words to make him a general visitor. Chap. 51, De visitatore, gives him a power to visit ex officio; cæteraque omnia et singula facere et exercere, according to the said statute. "In Talbot's case, the visitor was to visit de anno in annum ; yet he was held to be a general visitor. "In the case of Exeter College, de quinquennio in quinquennium; yet held to be a general visitor. Such a limitation of time is not material. If he is visitor, he has a right to hear complaints at any time: this is incidental to his visitatorial power. "This being so, I am the more confirmed in my opinion of [475 ] these statutes (if nothing arises upon Bishop Fisher's statutes |