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![handle is hein.slavery/ssactsengr0932 and id is 1 raw text is: MICH. 15 CAR. II. B. R.
[610] 84. THE KING against PATRICK. Ante.
Mandamus.
The retorn of mandamus was of the particular foundation, and the Statutes de
Pacificandis Discordijs, and that because the defendant bad not appeald to the local
visitors appointed, Queens Colledge cannot restore him: to which masters excepted,
that its not said that the Bishop of Ely, was loci illius Ordinarius, but only that the
vill of*Cambridge is within the diocess of the Bishop of Ely ; and there are many
exempt places, as arch-deacon, and other peculiars, which are Ordinaries. 2. As to
the matter, its ill ; the words of the letters patents 11 Co. 65 are affirmative, and so
exclude not the Kings jurisdiction, as five ports is previledged, but not from man-
damus, which is breve regium; this grant is but as grant of cognizance of pleas,
12 Ed. 4, 17 b. which exclude not this Court: also a foundation of a colledge is but
as every private conveyance the manner of the making being in the authors own
power, but the exposition thereof is in this Court; also the proper work of visitors is
to reform personal excess only, not to decide matters of freehold ; and ad visitandum
& commodum, must only refer to such excesses, being particular words, within general,
as Althams case, also as Lit. sect. 137, although the King hath given many things
spiritual to the Ordinary, 1 Inst. 96, yet hath he reserved many as spiritual to himself,
Yelverton 60, Gair and Fairchild F. N. B. 48 A. 2 Inst. 492, and this Court are
Judges of such things as are in their jurisdiction, 3 Inst. 42, as of deposition of abbot,
Prohibition F. 21 & F. N. B. 41, 139, 51, 80. Also this colledge is no spiritual
corporation, Dy. 255. 1 Co. Porters case Finch. Ley Engl. 92. Also this act of
pronouncing him president is not spiritual, no more then induction of person ; so
Conyers case Dy. but we cannot have assize, being not sworn 14 Ass. 9, the founda-
tion ad orand. & studend. 1 Inst. 142, doth not make it spiritual, in that all are bound
to the first, and the second is uncertain, that an appropriation cannot be made to a
lay-corporation, but may be to a colledge, is no argument that its spiritual, in that
appropriation may be to a nunnery. And the case of Alden against Tollet, 6 Car. was not
adjudged. Mandamus's have been granted to restore ushers, schoolmasters, church-
wardens, and parish clerks. Bramston pro Rege, and Brian senior fellow, The foundation
is ad studend. & orand. juxta ordinationes to be made by the evesque and chancellor, and
that e-[611]-very fellow should within two years regency enter into orders; 1. Its a
spiritual corporation, although the persons be lay, as knights templers, Fleta 111, and
singing-men in churches, who are capable of tythes: and abbots at first were lay,
durenus de beneficijs, cap. 20, and so the end be spiritual its sufficient; and although
it be not said ad studend. theologiam, yet the intent is apparent they should do so,
being to enter into orders sub poena expulsionis : also ad orand. is sufficient to make
them spiritual, as of nuns, 1 Inst. 342, which can do nothing else. Linwood, 111,
verbo personis ecelesiasticis, the Carthusians, 105, verbo notabilis diversitas, the
strictest order among Papists, are only founded in this manner, ad studend. & orand.
Also 3. Diocesis signifieth the jurisdiction of the bishop, and the vice-chancellor is
intended visitor in the chancellors absence without any special deputation : also the
right of visitation is to depose, Linwood 115, 8 Ed. 3, 327. 10 Co. 31, Suttons Hospital,
8 Ass. 31, by Scroope, Covenyes case, its intended that assize lieth on ouster made by a
stranger, without visitation, Allen against Ash, 13 Car. 1, the same with Huntlyes case,
the Court will not examine the cause of deprivation; also the writ need not be
answered, in that the retorn is to the jurisdiction. Twisden, What corporation soever
it be will not be material, but it will be hard to maintain they are spiritual corporations,
any more then lawyers, who come ad studend. & orand. also, if there were no visitors,
yet the law will create them : and in neither case, by Hide, can any man come hither
per saltum: and it will shake the whole government of colledges, should we give any
remedy here. Windham held, as in Dr. Witheringlons case had been adjudged, that
where there are visitors, none can come hither per saltum: and in 8 Ass. 29, 31, not-
withstanding a deprivation pleaded, the plaintiff may pray the assize at large super
titulum ; but if then the assize find he was deprived, he must first recover his name
before he can sue. Keeling contrh; that it can be no inconvenience for all to retorn
hither; for had they any cause, it would be sufficient to set forth their particular
1141
1 KEBLE, 610.](ViewImageLocal?handle=hein.slavery/ssactsengr0932&div=1&collection=&method=preview&ext=.png&size=3)