Green v. remedy on ["As to the fourth, it is admitted for defendant that if the devise had been to a stranger on the same trust (e), the visitor Rutherforth. could have no power over it. The equitable must be like the Visitor canlegal; only the college would be obliged to apply to this court not give a to compel the trustees to execute. It cannot differ the case, this Trust. that the corporation of the college happened to be the trustees. Suppose it had been on trust to present a member of another college, the visitor of this could have no power over it: and the present case differs not in substance from that. On the first branch of this trust and on the last, where it is to present to a stranger, it is admitted, the visitor could have no power: but it is contended for over the intermediate branch, because among the members of the college subject to his jurisdiction; and is compared to the case of a particular estate to the college, remainder over: but that is not like this case; the college there having the absolute ownership during its continuance, here not. Suppose on a vacancy all the fellows in their turn should do an act, which the master and major part of the fellows should conceive to be an absolute refusal, and should thereon seal a presentation to a stranger; and before institution one of the fellows should allege, that in fact he had not refused, that the college mistook, and should present him; and he appealed to the visitor upon their rejecting his claim: the visitor could not judge of this; there intervening the right of a stranger not subject to the visitor's jurisdiction, and whom he could not compel to give up his presentation; and therefore none but one of the king's courts of equity could judge, if it was a binding refusal, or could give relief. Suppose a fellow completely entitled should at the end of the year refuse to resign: the visitor could not compel him, for he could compel only for breach of the statute, which this is not: application for relief must be to some court of general jurisdiction, who may decree a resignation of the fellowship or living, and enforce the decree under the general penalties of contempt: so that this argument for defendant turns the other way. I admit, that in Philips v. Bury, contumacy was held good cause of expulsion, and B. R. would not examine into the fact of that contumacy; which was right: but it appeared to be a contumacy within the bishop's jurisdiction, which must be shown, though the contumacious fact need not be specially shown. But admitting for argument sake (and no otherwise) that that need not appear in expulsion for contumacy, it does not follow, that because a person may take advantage of general pleading to cover a nullity of jurisdiction, he therefore will. I am sure the present bishop would scorn to take such advan (e) [Visitor can only decide a private dispute; if there is a dispute by a third person against a corporation, to perform an agreement, visitor can not decide, as he cannot compel a V. Green tage, if it might be taken. But we are not now on a case of Rutherforth. expulsion: it is sufficient to show that the visitor, though general, could not give an adequate remedy in many cases on this trust and the case of Eton College, Mich. 14 Geo. 2, The King v. Bland, is an authority; where the court held, that the bare averment of a visitor would not preclude the do complete jurisdiction of the court, but the extent of his authority must appear, that the court may be satisfied he can do complete justice; and therefore a mandamus was awarded. It must appear that Visitor can Justice. Relief must be in the King's Courts of general Ju. risdiction. ["As to the fifth, whoever has a right by this trust, must have remedy; and I have shown, the bishop has not power to give it. It is admitted, that after testator's death, a bill might be to establish this charity and carry this trust into execution, and the visitor would have no jurisdiction; the court must then have decreed for a performance according to the will; and supposing a question had then arisen at the bar on the construction of the words of the will senior divine then fellow, the court have determined that, and have laid down rules for execution of the trust by the college in all future times; which would have been binding to the college, the visitor, and all persons: the ground of which is, that there must have been a of Trust mast complete performance, and there is no instance of this court's Complete be decreed. May be at any time. decreeing a trust by peace-meal or parts. Nor is it any answer to say that no such decree has been made; for the legal estate is in the trustees, and this trust is for ever executory, and always subject to be so till determined in equity (f), and therefore such a construction may be made at any time. The reason of the case of the King and this very college (g), is very material. It might be said there, as has been here, this is a power superadded and annexed to the visitor's: the court said there, it arose on the public laws of the land. The only difference between the two cases is, that arose on a public act of parliament relating to government; this on the general rules of equity, which is part of the general law of the kingdom. It is said, new donations may be subject to the visitor's jurisdiction, as it has been held, new engrafted fellows may; but that is not ad idem; for this is founded on a new donation and special trust the case urged for this is that of Clare Hall, (long after that in 5 Mod. 421,) where I allowed the plea. I am not an enemy in general to visitatorial power, but incline to support it as far as necessary; and went there farther than Holt did in 5 Mod., but the reasons, on which I founded myself there, hold not here. There was a plain implication to subject to the be subject to general visitatorial power to avoid confusion, which would New in grafted Fel lows may Visitor, to avoid con fusion. arise, if every one coming in as a fellow should not be subject to college discipline; and in 2 Jo. 175, it is determined, that power of expulsion includes power of admission. I there indeed laid weight on the inconveniences which might arise (f) [2 Brown, 51.] (g) [4 Mod. 433; Skin. 359, 368, 393, 546; Comb. 279.] Green V. far to be from a different decision; which were obvious, but different from the present, for it is not so necessary in this case, that Rutherforth. every special trust, consisting of various parts, should be subject to the jurisdiction of that visitor: nor will the like con- Visitatorial fusion ensue. The visitatorial power, as allowed and esta- Power, how blished by the law of England, and on the grounds on which supported. it is established, is most useful in colleges and learned societies; and I am for supporting it as far as it is established by the constitution of this kingdom, particularly by the judgment in Exeter College case (h), but am not for extending it farther; much less for giving way to and extending it on principles and rules derived from foreign laws, which the law of England rejects and concur on the whole that the plea should be overruled." [The doctrine laid down in this case as to the power of the general visitor over endowments engrafted on the original charity, without any declaration of a special trust or a special visitor, is confirmed by Attorney General v. Talbot (i); by Lord Mansfield in St. John's College v. Todington(k); and by Lord Brougham in the case of Ex parte Inge (l). [The internal management of a charity has been held to be the exclusive subject of visitatorial jurisdiction, but under a trust as to the revenue. Abuse by misapplication will be controlled by a court of Equity (m); and it has been held that vesting the legal estate of a charity in the governors does not exclude them from being visitors, unless where they are also to receive the revenues (n). [In a recent case it was contended that the jurisdiction of the Court of Equity was excluded, because the persons who were to enjoy beneficial interests were members of the corporate body, but the present Master of the Rolls (Lord Langdale), assumed as a matter of course that he had jurisdiction (o). In another case the late Lord Chancellor (Lord Brougham), drew the following distinction: "The next question is, was this a beneficial interest, or was it a trust? and upon all the circumstances of the case, and upon the whole of the evidence, my opinion is, that it was a trust only (p)."-ED.] (h) [2 Vesey, 328.] (i) [3 Atk. 675.] (k) [Vide infra.] (1) [2 R. & M. 596.] (m) [Ex parte Berkhampstead Free School, 2 V. & B. 134.] (n) [Att. Gen. v. Middleton, 2 Ves. 329.1 (0) Att. Gen. v. Smithies, 1 Keen, 299. In this case some of the corporate funds were received in trust, for payment of them to certain poor persons who were themselves members of the corporation.-ED.] (p) [Att. Gen. v. Archbishop of Canterbury, 2 R. & M, 467. In cases where, as in Green v. Rutherford, the The doctrine laid down in this case Visitor must pursue his wise he will be prohi bited. 8. T., 6 Geo. 2, Bentley v. The Bishop of Ely (q). In proPower, other hibition, Dr. Bentley, the plaintiff, declared, that King Henry the Eighth, on the nineteenth of December, in the thirteenth year of his reign, founded Trinity College in Cambridge; and that Queen Elizabeth made a body of statutes, the fortieth whereof is entitled De magistri si res exigat amotione, and speaking of the Bishop of Ely, there are the words corrigat, puniat, expellat; that he was cited to appear before the bishop as special visitor appointed by the said fortieth statute of Elizabeth, to answer to sixty-four articles, which are insisted upon as violations of the statutes, some of which are long before the last act of grace, and others of them are for setting the college seal in conjunction with the fellows. The bishop for a consultation sets out a former statute of Edward the Sixth, in these words, visitator episcopus Eliensis sit; and avers that he is visitor general, and as such had a right to proceed upon the articles. And on demurrer, after several arguments, these points were ruled: First, that though several of the facts charged appear to be before the act of grace, yet they are not pardoned by the statute, but are still inquirable by the visitor. There are two sorts of corporations, one for public government, the other for private charities. The former of these are governed by the common law, but the latter is the creature of the founder, and [462] governed by his private laws. Not that the particular persons are exempted from the common law, but the body in general is; and as these are private laws, they are in the nature of trusts, and the breach of them is no crime cognizable by the common law. The king's power of pardoning ariseth from his having the executive power in him, and though in this case the king is founder, yet the breach of his private statutes are not crimes against the crown. The crimes pardoned are such as are against the public laws and statutes of the realm, whereas these are in the nature of domestic rules for the better ordering of a private family. Secondly, that though several of the crimes imputed to him, for violations of the statutes of the college, appear to have been done by him in conjunction with others, yet that is no reason to exclude the inquiry of the visitor. If a whole body join together in doing an unlawful act, they are severally punishable in their natural capacity. Thirdly, that by the statute of Edward the Sixth, the Bishop of Ely and his successors are appointed general visitors; it being Episcopus Eliensis without any Christian name, which shall extend to the bishop and his successors without the words for the time being. Fourthly, that though the three former determinations are in favour of the suit below, yet the prohibition ought to stand; because the bishop hath not cited the doctor upon the foot of (2) Str. 912. his general visitatorial power, but as a special visitor appointed by the fortieth statute of Elizabeth, which the court said he was not. For being before appointed general visitor, there remained no further power in the crown with regard to enlarging the visitatorial power. They said it was a question they would not determine, whether when the crown has given statutes and appointed a visitor, the successor can any way alter or annul the former statutes; the practice indeed has been otherwise, but it hath never been determined to be good. For this last reason, they were all of opinion that the prohibition ought to stand. Note, upon a writ of error in parliament this judgment was reversed, and the lords went into the consideration of the several articles, and as to some granted a prohibition, and as to others a consultation. be visited happens to be also Visitor. [463] E., 1 Geo. 2, The King v. The Bishop of Chester (r). Case where Mandamus directed to the bishop as warden of Manchester a Person to College, to admit a chaplain. The bishop returns, that by the royal foundation he is appointed visitor. And upon argument it was objected, that though a mandamus will not lie where there is a visitor free from any objection, yet here the two offices being in the same person, he cannot visit himself; and no case can be shown where the founder hath once granted the whole out of him, and on such a temporary suspension it hath resulted back. And by the court: It is plain he cannot visit now, because his power is suspended, and these are powers that may cease and revive without inconvenience, since there is this court to resort to. In a lay corporation, the founder and his heirs are visitors; in a spiritual corporation, the jurisdiction is here unless there be an express visitor appointed: the ground of our interposing in this case is, that at present there is no other visitatorial power in being. And a peremptory mandamus was granted. Per Buller, J.-A visitor cannot be a judge in his own cause, unless that power be expressly given him. A founder, indeed, may make him so, but such an authority is not to be implied; he cannot visit himself (s). This doctrine is also recognized in the preamble to the 2 Geo. 2, c. 29. [But the possession of a bare legal interest in a charitable estate is not a disqualification for the office (t), it must be a beneficial interest.-ED.] Afterwards an act of parliament was made, 2 Geo. 2, c. 29, empowering the king to visit the collegiate church of Manchester (u), during such time as the wardenship of the said church is or shall be held in commendam with the bishopric of (r) Str. 797. (s) 2 T. Rep. 338. (t) [Att. Gen. v. Middleton, 2 Ves. sen. 328. (u) See the case of Eden v. Foster, 2 P. Wms. 325, argued before Lord Chancellor Macclesfield, afterwards before Lord Chief Justice King, Lord |