Philips against Bury
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1788 |
| Date | 01 January 1788 |
| Court | Court of the King's Bench |
English Reports Citation: 100 E.R. 186
IN THE COURT OF KING'S BENCH
See S. C. 1 Ld. Raym. 5; 91 E. R. 900 (with note).
[346] philips against bury. 1788. [See S. C. 1 Ld. Kayrn. 5 ; 91 E. E. 900 (with note).] We have been favoured with the following note of my Lord Holt's argument in delivering his judgment in this case, taken from his own manuscript, and which was mentioned in the argument of The King v. The Bishop of Ely. Holt, Ch.J. I will put the case (a) as short as I can upon the record, and it is thus. Exeter College in Oxford was founded by William Stapleton, to consist of a rector and scholars. By the statutes and constitution of the college, the Bishop of Exeter for the time being is appointed visitor, to visit by himself or commissary ; and the time is set when he shall visit at the request of the college, as often as they think requisite, and, without such request, once in five years ex oth'cio. Then it is directed that in his visitation he may proceed to the deprivation of the rector, or to the expulsion of the scholars. Then there is a qualification of this power by the particular words of the statute ; " Si tamen ad deprivationem rectoris aut expulsionem scholaris (a) Vide 1 Lord Raym. 5. 2T. E. 347. PHILIPS V. BURY 187 alicujua per epiacopum aut ejus commissarium agatur," then his crimes shall be shewn untohim, and if he cannot probably make out his innocence, that he shall be amoved with out further appeal; dum tamen ad ejus expulsionem, there shall be the consent of the rector and three of the seven senior fellows. Then the statute goes on further, that if the rector be removed by the bishop's commissary, etiam consentientibus four of the senior fellows, he may appeal to the bishop. Then there is another statute which shews for what faults and crimes the rector shall be deprived : wasting or alienating the revenues or goods of the college ; adultery ; and some particular things. Then it sheweth the method that shall be taken against him when they do proceed to deprivation, i.e. within fifteen days after the fact committed he shall by the college be admonished to resign. Then they are to apply to the bishop, and if he be convicted, the bishop or his vicar may proceed to deprive him. There was one Colmer, a scholar, expelled the college by the rector and fellows for incontinency ; against this expulsion he appealed to the bishop, as visitor, in March 1690. Upon the appeal the bishop granted a particular commission to Doctor Masters to examine this matter. He went to the college, and his proceedings are found in the verdict, and re-[347]-versed the sentence of expulsion, and restored Colmer to his fellowship. After this the bishop appointed a visitation to be held in the chapel, when the doors were shut. The rector and scholars would not open the doors, but protested in the area against the visitation. The visitor called over the names of the rector and scholars, and swore one to prove the summons, and went away without doing any thing more. After this another visitation was appointed in the Hall, to be held the 24th of July : at which time the bishop repaired thither, and divers protestations against the visitation were made; but he proceeded, called over the names, registered the act of the 16th of June, and upon several warnings to appear, Doctor Bury and clivers of the fellows absented themselves, and refused to submit to the visitation, and were pronounced contumacious. The bishop first expelled Doctor Home, and suspended some of the senior fellows, and afterwards, with the consent of the unsuspended fellows, deprived the rector, Doctor Bury; that sentence of deprivation being thus given, the college proceeded to a new election, and elected Mr. Painter, who joined in the lease to the plaintiff upon which this action is brought. Now the question is, whether this sentence of deprivation, thus given by the bishop against Doctor Bury, doth make the rectorship of Exeter College void as to him ; and so consequently gives a title to the lessor of the plaintiff? My brothers have all given their opinions that this sentence of deprivation is a void sentence; that Doctor Bury continues rector, and the rectory is not void by that sentence; and that judgment ought to be given for the defendant. I must crave leave to differ from them in this case; for I am of opinion upon this verdict, that judgment ought to be given for the plaintiff, and that this deprivation by the visitor is a good depriyation to void the rectory. The questions that I make in this case are but these two : The first is, whether or no by the constitution of this college the Bishop of Exeter had power in this case to give sentence? The second is, supposing he had such a power, whether the justice of this sentence be examinable in this Court upon this action 1 And I am of opinion the bishop had power by the constitution of the college to give a sentence; and having that power, [348] the justice of that sentence is riot to be examined in a Court of Law upon an action. Concerning the bishop's power there have been several things said which I would take notice of; and the first thing is, what time he hath by the constitution of the college to make his visitation in. And I agree that he can make his visitation but once in five years, unless he be called by the request of the college; and if he come uncalled within the five years, his visitation would be void ; and if he gave then any sentence, that would be a mere nullity, as coram nori judice ; but I hold that the visitation of the 24th of July was a good visitation, and consequently the sentence given upon it is good. Two objections have been made against it: First, it is objected, that Doctor Masters's coming in March to examine Colmer's appeal, upon the visitor's commission, was a visitation. I think there is no colour that it should be accounted a visitation : my reason is, because it ia only a commission upon a particular complaint, made by a single expelled fellow, for an injury supposed to be done to him. Colmer complained that he was expelled without just cause, and 188 PHILIPS V. BURY 2T.R. 349. appealed to the visitor for redress; they expelled him for incontinency, whereas he thought himself innocent; and the visitor sent his commissary to examine this particular matter only. Now though the visitor be restrained by the constitutions of the college from visiting ex offieio more than once in five years, yet as visitor he has a standing constant authority at all times to hear the complaints and redress the grievances of the particular members; that is the proper office of a visitor, which appears by Littleton, s. 136. And so it was held...
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