Wrong Process. Pypowder Court.—Nay, in some Cases, the Award of a wrong Process is void; as if by a Steward of a Manor Court, that a Capias should issue, where the same doth not lie, but only an Attachment. Turville and Tipper's Case, Latch 223. A Court of Pypowders hath Jurisdiction of an Action of the Case, yet if it holds Plea of Case for Slander, 'tis all void, tho' the Words were spoken within the Boundaries of the Fair, because the Jurisdiction is limited; so that if the Thing, the Time, the Person, or the Process, be not regarded according to the Authority given, 'tis all void, and an Advantage may be taken of it by any Body, where the Plaintiff Claims or makes his Demand by Colour of such Act.
Notice of Conditions where to be taken.—'Twas further argued, That the Reason given in that Case of Latch, is, because the Custom which gave him his Authority, gave him Notice that such Process did not lie; and if any Man hath by our Law any Estate, Right, or Privilege, by any particular Means, he is bound to take Notice of all the Conditions and Qualifications annexed thereto: And the Reason is just, because the same Means, by which he had Notice of the Benefit, gives him Notice of the restrictive Limitation and Penalty; and so was it held in the Case of Fry and Porter.
Where Jurisdiction to appear in Pleading.—By our Law no Benefit can accrue to a Man by a Judgment [51] given on a Thing arising extra potestatem Curiæ, in case of a particular and limited Jurisdiction; as in the Case of Kingston upon Hull, March 8. which held Plea of Debt upon a Bond made extra Jur', &c. and a Jud', and Capias executed, and an Escape, and no Action lay for the Escape, because all was void, and coram non Judice: In the same Book, March 117, 118, Dye and Olive's Case in False Imprisonment, Plea that he was Serjeant at Mace belonging to a Court of Record, and that a Warrant was directed to him to Arrest the Plaintiff pro quodam Contemptu; and held not good, because not shewn, in what Action, and how within the Jurisdiction; and if not within it, 'twas coram non judice, and void; argued by Rolls and Maynard.
Visitor a Creature of the Founder.—Then 'twas argued, That this was a limited qualified Power; that the Visitor was a Creature of the Founder's; and if it had been the Heir of the Founder, he had been as much bound and restrained by the Statutes, as a Stranger; and tho' the Law should be agreed to be, as is pretended, that it appoints a Visitor, yet still (whether he be the Heir or Nominee of the Founder) he is an Officer only within the Limits and Rules of the Foundation and the Statutes made thereupon: As he hath a Visitatorial Power only over this College, so he hath it only after the Manner in which 'tis given to him.
His Power modified.—If the Founder had made no particular Visitor, but yet had appointed that the same should be visitable at such a Time, and in such a Form, he himself had been bound by these Rules; and if he would have been so confined, with much more, or at least with the same Reason, ought his Nominee; for cujus est dare, ejus est disponere; and every Argument which hath been urged for the Rector's being subject to the Rules of the Foundation, may likewise be applied to that of the Visitor: He that made the Visitor may restrain, shape, and modify the Power which he gives him: He might have made him Visitor only once in his Life, or only upon Request, and have left all other Jurisdiction to the Rector and Fellows.
And controlled by the Statutes. Limited Executor.—But further, here he is found to be Visitor only secundum formam statut' & vigore statut', and to execute those Statutes; and that which makes him a Visitor, makes him such thus and thus qualified, and no otherwise; whatsoever Power or Authority the Name or Office of a Visitor may import ex vi termini, no Man can say but this Visitor is controled by the Statutes, which make him so: Now had there been no Statutes, he had never been Visitor; then these Statutes making him a Visitor upon particular Terms and Conditions, Times and Occasions, extra these Terms and Conditions he is no Visitor at all; this seems plain and natural: So that if he exceeds the Bounds prescribed to him as Visitor, he doth not act as Visitor; for all Powers, Authorities, and Jurisdictions, especially such as are created by private Persons, must be executed according to the express Institution or plain Meaning of the Party that created them, and according to the Circumstances, with which he hath circumscrib'd them: So is the Rule [52] in Berwick's Case, 5 Rep. 94. and 1
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