sequently a just Cause of Deprivation; so that upon the whole Matter, 'twas inferred and urged, that the Bishop hath a Visitatorial Power vested in him to deprive the Rector without Consent of the four senior Fellows. And 2. That the Justice of the Sentence is not examinable in Westminster-hall. And 3. That if it were, and the Cause necessary to be shewn, here was a good one, an Affronting the very Power of visiting, and setting up for Independency, contrary to the Will of the Founder; and therefore it was prayed that the Judgment should be reversed.
Argument for the Defendant in Error. Visitroial Power and Trust.—On the other Side, 'twas argued by the Counsel with the Judgment, That this Sentence was void; that 'twas a mere Nullity; that this Proceeding had no Authority to warrant it; and that it being done without Authority, 'tis as if done by a mere Stranger; and whether it be such an Act, or not, is examinable at Law; for that the Power of a Visitor must be considered as a mere Authority or a Trust, and it is one, or rather both, and then either way 'tis examinable; for every Authority or Trust hath, or ought to have, some Foundation to warrant it; and if that Foundation which warrants it hath limited any Rules or Directions, by which it is to be executed, then those Directions ought to be pursued; and if they are not, 'tis no Execution of the Authority given, or Trust reposed; and if not, 'tis a void Act, a mere Nullity, and consequently 'tis that of which every Man may take Notice and Advantage.
Want of Jurisdiction infers a Nullity, and the Party grieved has his Action. Limited Jurisdiction. Sheriff.—Then 'twas said, That it must be agreed that of a void Thing all Persons may take Advantage, and contest it in a collateral Action, and that altho' it have the Form and Semblance of a Judicial Proceeding And for this was cited the Case of the Marshalsea's, 10 Rep. 76. as a full Authority; the Resolution was, That when a Court hath no Jurisdiction of a Cause, there all the Proceeding is coram non judice, and Actions lie against any Person pretending to do an Act by Colour of such Precept or Process, without any regard to its being a Precept or Process; and therefore the Rule, qui jussu judicis aliquid fecerit, non videtur dolo malo fecisse, quia parere necesse est, will not hold, where there is no judex, for 'tis not of Necessity to obey him who is not Judge of the Cause; and therefore the Rule on the other side is true, judicium a non suo judice datum, nullius est momenti; and so was it held in the Case of Bowser and Collins, 22 Edw. 4. 33. per Pigot, and 19 Ed. 4. 8. And therefore if the Court of Common Bench held Plea of an Appeal of Felony, 'tis all void; but it must be owned, that the mere erroneous Procedure of a Court which hath a General Juris-[50]-diction of the Subject Matter is not examinable in a Collateral Action, whether upon true Grounds, or not; and yet if it be a limited Jurisdiction, and those Limits are not observed, even that is coram non judice; and holds with respect to Courts held by Authority of Law, which are much stronger than the Cases of Power created or given by a private Person. A Sheriff is bound by Law to hold his Turn within a Month after Michaelmas, and he holds it after the Month, and takes a Presentment at that Time, if that be removed into the King's Bench, the Party shall not answer it, but be discharged, because the Presentment was void, & coram non judice; for that the Sheriff at that Time had no Authority; and yet in that Case his Authority and Jurisdiction extended to the Person and Thing: The same Law for a Leet, unless Custom warrants the Contrary, and then that Custom must be pursued.
Commissioners of Sewers.—The Commissioners of Sewers have a limited Authority; and if the Number of Persons, or other Requisites mentioned in their Commission, be not pursued, what they do which exceeds it, is void; and yet they have a kind of Legislative Authority; so is it in Sir Henry Mildmay's Case, 2 Cro. 336. and there they had an Authority both of Thing and Person, but did not observe the Rules prescribed in the Gift of that Authority, according to the 23 Hen. 8. cap. 5. and no Reason could or can be given for that Resolution, but that it was a particular limited Authority: And then, to apply this to the present Case, the Sentence in Question can no more aggrieve the Defendant, than an Order pronounced or made by a non Judex, if it be not agreeable to the Power given by the Statutes; and this appears further from Davis's Rep. 46. where the same Distinction is allowed.
34
