Inst. 113. and 258. An Executor is an Officer or Person intrusted, which is taken Notice of by the Law, yet in his Creation he may be limited quoad the Estate in one Country, or quoad one Particular, and he can't intermeddle any further; but Administration shall be granted as to the rest.
Visitor not a Court.—Then 'tis observable, That this Statute Visitor is not a Court of Record, nor any Court at all, but rather like an Arbitrator under certain Directions; he can neither meddle at another Time, or with other Matters, or in other Manner, than what is prescribed. But admitting it a Sort of Judicature, here's no Appeal or Writ of Error, or Prohibition or Mandamus lies; nay, the Visitor himself cannot relieve against his own Sentence, or restore the Party deprived the next Day; but the Place being vacant, a Right of Election accrues to the Fellows; 'tis therefore unreasonable to suppose him not restrained, or that his Acts, if exceeding the Limits and Rules set him, shall be conclusive and binding.
Lay-Hospitals.—This is like a Lay-Hospital, 'tis not a Religious Body, tho' some call it mixt; and in case of Temporal Lay-Offices, there must be some Remedy at Law, as is 13 Rep. 70. so is Dyer 209. and 3 Inst. 340. Where no Appeal is allowed, another Examination must be admitted; and thus seems the 8 Assis. pl. 29. tho' it hath been quoted on the other side: If the Warden of an Hospital be irregularly deprived, he shall have his Remedy at Law; and 13 Assis. 2. to the same Effect: Bagges's Case, 11 Rep. repeats the same Case, which shews Coke's Opinion to concur with it; and tho' an Assize doth not properly lie, yet the Meaning is, he shall have Relief, i.e. such Suit at Law as is proper to his Case: The same Distinction is allowed in Dr. Sutton's Case, Latch 229. And that a Remedy is given by the Law in this Case of a Temporal Property, seems to be plainly affirmed in the Statute of 24 H. 8. cap. 12. And further, Tho' strictly and properly it were not of Common Law Conusance, yet it falling incidently to be a Question upon Trial of a Title, the Court before whom that Suit depends must examine that Incident; as in case of an Issue, lawfully joined in Marriage or not, the Trial shall be by Certificate of the Ordinary; but if it be a Question upon the Trial of a Title to Land, the Matter shall be tried and judged without Certificate.
Law favours Appeals, &c.—The Wisdom of our Law hath been such, as very rarely to trust any of the Courts of Justice with the final Determination of Matters of Law in the first Instance; and 'twould be strange that this Case of a Visitor should stand single by it self. Besides, to prevent a Failure of Justice, the Law doth of Necessity admit of several other Provisions and Methods of Examination or Trial, than what the subject Matter or Person would properly in their own Nature require, especially in Point of Remedy and Relief, as appears in Dormer's Case, 5 Rep. 40. and 1 Inst. 54. 2 Roll's Abridg. 587. now here is no other Remedy, nor other way of Trial, [53] for Deprivation is not triable by Certificate, but only in Case of an Ecclesiastical Person.
Appleford's Case.—As to the Objection from Appleford's Case, Sid. 71. there that Writ was fully answered, and they could not Examine into the Truth and Falsity of that Answer, but must leave the Party to his Action; and it doth not thence follow, That in an Action there's no Remedy: But the strongest Objection is, that in pleading a Deprivation, you need not shew the Cause, and it must be taken for just and good, as Moore 781. Jones 393. Moore 228. 2 Roll's Abridg. 219. 9 Edw. 4. 25. that you need only shew by whom: All these stand upon the same Foundation, they were by Authority Ecclesiastical, and must stand till Repeale; and even those Cases of the High Commission Court, they were by the Course of the Ecclesiastical Law, which was saved to them by the Proviso in 1 Eliz. and therefore shall be intended so, till the contrary appear: And even there 'twas debito modo privatus, which implies all due Requisites; but here the whole is disclosed, upon a special Verdict; 'tis not found here, that he was duly deprived; but that he was deprived after such a Manner, which, if it appears to have been without Authority, must be null: As to Ley's Opinion in Davis 47. that a Sentence of Deprivation, in case of a Donative by an Ordinary, was effectual in Law, till Reversed; that's not Law, for 'twas all coram non judice. Bro. Præmunire, 21. Nat. Br. 42. the Ordinary cannot visit a Benefice Donative.
Then they Object, That this is an Eleemosynary Interest, and the Rector took it under those Terms of Subjection to such a Visitor: But that is the Question,
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