ship; Dr. Bury is pronounced Contumacious, sed de Pœna in eum infligend' duxit deliberand': Then the 24th he calls for the Act, actum quendam coram eo decimo sexto die Julij ult' Elaps', die alias statut' pro visitatione hujus Collegij expedit', eundemque actum pro parte process' hujus negotij visitationis haberi decrevit. Then he Adjourns to the 26th, and then he deprives Dr. Bury for Contumacy, with the Consent of Four of the Seven senior Fellows not Suspended; Twelve having been Suspended. And they find further, That the Four Fellows which Subscribed the Sentence of Deprivation were not of the senior Fellows, unless by the Deprivation of Dr. Herne, and the Suspension of George Vernon, Thomas Lethbridge, Benjamin Archer, Samuel Adams and Philip Thorne; all which six, Half the Number of the Suspended, were seniors to the Consenting Scholars.
[42] Then they find that after this Sentence Painter was elected into the Rectorship, Concurrentibus omnibus requisitis; si prædict' Officium Rectoris eo tempore fuit vacans; and that Dr. Bury, 1 June, Anno Jac. 2. & semper postea usque sententiam prædict', si sententia in contra' non valeat, semper postea fuit & adhuc est verus & legitimus Rector Collegij Prædict'.
Conclusion of the Special Verdict.—That William Painter as Rector, and the Scholars of the said College, did make the Demise in the Declaration, and thereon the Plaintiff entred, and Dr. Bury enters upon him, and holds, and yet doth hold him out modo & forma prout in nar', &c. sed utrum super totam materiam prædict' locus Rectoris per privation' prædictam præd' Arthuri legitime vacavit necne the Jury are ignorant, & si per inde locus prædict legitime vacavit, tunc pro querent; & si non, tunc pro Defendent'.
Argument for the Plaintiff in Error. See the Argument of Holt, C.J. in Skinner's Reports.—It was argued on the Behalf of the Plaintiff in the Writ of Error, That this Judgment was illegal; and the general Question was, Whether this Sentence of Deprivation, thus given by the Visitor against Dr Bury, did make the Rectorship void as to him, and so consequently gave a Title to the Lessor of the Plaintiff. But upon this Record the Questions were two: 1. Whether or no by the Constitution of this College the Bishop had a Power in this Case to give a Sentence? 2. Supposing that he had such a Power, Whether the Justice of that Sentence were examinable in Westminster-hall upon that Action?
That the Bishop had Power to give such Sentence. Twofold Power of the Visitor. Appleford's Case.—And 1. 'twas argued, That the Bishop had such a Power to give a Sentence; and it was agreed that he could make his Visitation but once in five Years, unless he be called by the Request of the College; and if he comes uncalled within the five Years, his Visitation would be void: But yet the Visitation of the 24th of July was a good Visitation, and consequently the Sentence upon it is good; that there was no Colour to make Dr. Masters's coming in March to examine Colmer's Appeal upon the Visitor's Commission to be a Visitation; and that because it was a Commission upon a particular Complaint, made by a single expelled Fellow, for a particular Wrong and Injury supposed to be done to him, and not a general Authority to exercise the Visitatorial Power, which is to inquire into all Abuses, &c. Colmer complains that he was expelled without just Cause, and seeks to the Visitor for Redress, they having expelled him for an Offence, of which he thought himself innocent; and the Visitor sends his Commissary to examine this particular Matter. Then 'twas urged, That tho' a Visitor be restrained by the Constitutions of the College from visiting ex officio, but once in five Years; yet as a Visitor he had a constant standing Authority at all Times to hear the Complaints, and redress the Grievances of the particular Members; and that is Part of the proper Office of a Visitor to determine particular Differences between the Members, and thus is Littleton's Text, sect. 136. that Complaint may be made to the Ordinary or Visitor, praying him that he will lay some Correction and Punishment for [43] the same, and that such Default be no more made, &c. And the Ordinary or Visitor of Right ought to do this, &c. and so was it held in Appleford's Case in the Court of King's Bench, who was expelled upon a like Occasion as Colmer was; he appealed to the Bishop of Winton, who was Visitor, and he confirmed the Expulsion, and held to be good upon the Appeal; for the Hearing of Appeals is a standing, fixed, constant Jurisdiction. Visiting is one Act or Exercise of his Power, in which he is limited as to Time; but Redressing of
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