Page:The English Reports v1 1900.pdf/918
question of law arising upon the pleadings; for the Court of King's Bench founded their opinion upon a repugnancy, or inconsistency between the citation issued by the Bishop against Dr. Bentley, and the plea put in by the Bishop to justify his proceedings; and it was apprehended to be very plain, that the Bishop's plea was inconsistent with, and a departure from his citation. For the Bishop, in his citation, summoned Dr. Bentley before him as a particular visitor, specially authorised and appointed by the 40th chapter of the statutes of Queen Elizabeth, to examine the Master of the college for certain crimes or enormities mentioned or expressed in the second member of that chapter; and yet in his pica he insisted, that the statutes of King Edward VI. were in force, and that by the 46th of those statutes, the Bishop of Ely, for the time being, was appointed general visitor of this college; but if he really was so, he could not be visitor specially authorised by Queen Elizabeth to examine the Master, because the whole visitatorial power would have been in him under King Edward's statutes; and it was both repugnant and inconsistent, that Queen Elizabeth could grant to him a part of that power, the whole of which he was possessed of before; unless it be true, that the whole doth not contain, or is not equal to all the parts. Whether he really was general visitor or not, was not properly now in question; but it must necessarily be so taken upon this record as against the Bishop himself, he having pleaded that he was general visitor by King Edward's statutes; which, if he had not pleaded and set forth on record, the only question would have been, whether the articles which he had admitted, were within his enquiry as special visitor, by the 40th chapter of Queen Elizabeth's statutes, since he had cited Dr. Bentley as such; but by his plea, he insisted on a different power from that upon which he instituted or issued the citation, and a power totally inconsistent with it. That in cases of prohibition, both parties are in the nature of [237] plaintiffs, or actors; and therefore, if the plea does not support the same kind of jurisdiction which is relied upon by the Bishop in his citation, that citation and all proceedings upon it will he illegal, and a consultation ought to go; for the defendant cannot have a consultation to enable him to proceed on that citation, without entitling himself to it by his plea, which the Bishop had not done in this case, but had insisted on another jurisdiction, different from that upon which his citation was founded. That this citation was the leading process, and sole basis of all the subsequent proceedings below; and if it was not shewn by the Bishop's plea to have been warranted by a legal authority in its first issuing, whatever was done pursuant to it, was without jurisdiction; and whatever visitatorial power the Bishop of Ely might be entitled to, which was a distinct question, yet if, by his own plea, he had destroyed that jurisdiction under which the citation was grounded, the Court of King's Bench could no more suffer him to act under such a power, than if he had none at all. That the citation was likewise ill-founded, because the Bishop of Ely was not appointed visitor by the 40th chapter of Queen Elizabeth's statutes, there being no words of creation or constitution in that chapter; for the first branch of it refers to the power to be exercised by the Vice-master and Seniors, of admonishing the Master upon any neglect in the execution of his duty; and the next branch of it provides, that in case such admonition proves ineffectual, they should then lay the matter before the visitor, the Bishop of Ely for the time being; but these words could not possibly confer any original or new power, and if the Bishop had not a visitatorial power given him by this statute, whatever power of visitation he might otherwise have, the citation being wholly founded on this statute was illegally issued; and therefore the judgment of the Court of King's Bench was clearly right, and ought to be affirmed with costs.
After hearing counsel upon this writ of error on fifteen several days, and discussing the matters of the charge, article by article; and after hearing the Judges upon the two following questions, I.
Supposing an action upon a prohibition brought in the Court of Common Pleas, and the plaintiff obtains a judgment for the prohibition to stand, and costs taxed for him, and a writ of error be brought in the Court of King's Bench, which Court reverses the judgment in part, and affirms it as to the rest whether the plaintiff in that case is entitled to costs?
and, II.
Whether, in the case in the question before stated, wherein the judgment is reversed in part, and affirmed in part, the costs are to be reduced, or the whole to stand?
And after great debate upon almost every part of the case, the entire order and judgment of the house was expressed in the following words:
902