not essential, tho' prudent, to have the Charge upon Oath before Commitment; Matters may be otherwise apparent. And as to the Objection, That the Warrant of the Council for the Commitment was not shewn; they said that it lay not in their Power, because 'twas delivered to the Provost Marshal, as is Authority for the Capture and Detention of him, and therefore did belong to him to keep: And that the Council, tho' they were not a Court, yet they had Jurisdiction to hear the Complaint, and send him to another Court that could try the Crime; and tho' it did not appear that the King gave any Authority to the Governor and Council to commit, yet 'tis Incident to their Authority, as being a Council of State; the Council here in England commit no otherwise; and where the Commitment is not authorized by Law, the King's Patent gives no Power for it: But the Government must be very weak, where the Council of State cannot commit a Delinquent, so as to be forth-[35]-coming to another Court that can punish his Delinquency: And therefore prayed that the Judgment should be reversed, and the same was accordingly reversed.
Philips v. Bury [1694].
[15 Lds. Jo. 441, 482 (b); 1 Burn, E.L. 442; Mew's Dig. xi. 1375, xiv. 1071; 2 T.R. 346; 4 Mod. 106, 107; Skin. 447, &c.; Carth. 180.]
Extent of Visitorial Power. Colleges &c.—Writ of Error to reverse a Judgment given for the Defendant in the Court of King's Bench, where the Case upon the Record was thus; Ejectione firmæ on the Demise of Painter as Rector, and the Scholars of Exeter College in Oxon, for the Rector's House. The Defendant pleads specially, That the House in Question is the Freehold of the Rector and Scholars of the College; but he says, That he, the said Dr. Bury, was then Rector of that College, and that in Right of the Rector and Scholars he did enter into the Messuage in Question, and did Eject the Plaintiff, and so holds him out; absque hoc, That Painter, the Lessor of the Plaintiff, was at the Time of making the Lease in the Declaration Rector of that College; & hoc paratus est verificare, &c.
The Plaintiff replies, That the Messuage belongs to the Rector and Scholars, but that Painter the Lessor was Rector at the Time of the Lease; & hoc petit quod inquiratur per Patriam, &c. and thereon Issue is joined, and a Special Verdict.
Special Verdict.—The Jury find that Exeter College is and was one Body Politick and Corporate, by the Name of Rector and Scholars Collegij Exon' infra Universitat Oxon', that by the Foundation of the College there were Laws and Statutes by which they were to be governed; and that the Bishop of Exeter for the Time being, and no other, at the Time of founding the College, was constituted by Virtue of the Statute concerning that Matter hereafter mentioned, ordinary Visitor of the same College, secundum tenorem & effectum statut' eam rem concernent', That the Bishop of Exeter, who now is, is Visitor according to that Statute. Then they find the Statute for the Election of a Rector, prout, &c.
Then they find the Oath required of the Rector, That so long as he should remain in that Office, he should be true and faithful to the College and its Lands, Tenements, Possessions Ecclesiastical and Secular, Rights, Liberties and Privileges, and all its Goods, moveable and immoveable would keep and defend, and all the Statutes, Ordinances and Customs of the College he would observe, and endeavour that they should be observed by all Scholars, Graduates and Under-graduates, &c. That he would occasion no Trouble or Grievance to any of the Scholars contra justitiam, charitatem & fraternitatem, but according to the best of his Judgment and Conscience he would cause due Discipline to be used acording to the Form of the Statutes of the [36] College: That he would maintain and defend all Suits for the College, but never begin one wherein any Disadvantage or great Prejudice may happen to the College, without the deliberate Consent of the major Part of the
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