holder is dispossessed, and which draws after it temporal and certain rights, provided the party has no other specific remedy, and will be granted to restore a curate to his chapel (w); or a schoolmaster of a grammar school, founded by the crown (x). A mandamus was directed to the master and fellows of Caius College, Cambridge, to restore an usher of a free school, of which they were visitors. But Glyn, C. J., doubted whether the writ would lie, and said, that by the same rule that a schoolmaster should be restored, every scholar might claim to be restored; and conceived that the visitors might remove the master of the school if he did not observe the rules for its government (y). And Twisden, J., said, that it did not lie for an usher of a school in Cambridge (z). A mandamus has been granted to restore a master of arts and doctor of divinity, who had been improperly suspended, to his degrees (a). A mandamus lies to admit a dissenting minister to the use of his chapel. Where a meeting-house was vested in trustees, in trust (amongst other things), "to suffer the meetinghouse to be for the public worship of God by such congregation of protestant dissenters, called Presbyterians, as should sit under and attend the ministry of John Enty or such other Presbyterian minister or ministers as should, in his and their room successively in all times then coming, be by the members in fellowship of the said or such like congregation or congregations, regularly and fairly chosen and appointed to be the minister, preacher, or pastor to preach in the said meeting." On the application of a party who had been duly elected for a mandamus requiring the trustees to admit him to the use of the pulpit of the chapel as minister; grounded upon an affidavit of the endowment of the pastorship, and the election of the claimant by a majority in whom the right to elect was vested, and who was removed from the possession by the trustees, and a demand and refusal of the use of the meetinghouse. Lord Mansfield held, that since the act of toleration (b), the remedy by mandamus ought to be extended to protect an endowed pastor of protestant dissenters by analogy, to the case of a lecturer, preacher, schoolmaster, curate, or chaplain. The deed is the foundation or endowment of the pastorship. The form of the instrument is necessarily by way of trust; for the meeting-house and the land upon which it stands could not be limited to the former chaplain and his successors. Many lectureships and other offices are endowed by trust deeds; the right to the function is the substance, and draws after it every thing appurtenant thereto. The power of the trustees is merely in the nature of an authority to admit. The use of the meeting-house and pulpit in this case follows, by necessary consequence, the right of the function of minister, preacher, or pastor, as much as the insignia do the office of mayor, or the custody of books that of the town clerk. The writ was granted on the ground, that if denied protestant dissenters and their religion would be put out of the protection of the law where no other remedy than mandamus could be applied, which is to be used where the law has established no specific remedy, and where, in justice and good government, there ought to be one (c). So a mandamus lies to justices of the peace to admit a dissenting minister to take the oath of allegiance and subscribe the declaration required by the toleration act, in order to qualify him to preach (d). (b) See ante, pp. 101, 102. (c) Rex v. Barker, 3 Burr. 1265; S. C. 1 W. Bl. 352. See Davis v. Jenkins, 3 Ves. & B. 155; Attorney Upon an application for a mandamus to be restored to any office, the party applying must make out a primâ facie title, and show at least that he has complied with all the forms necessary to constitute his right. The court refused to grant a mandamus to the trustees of an endowed dissenting meeting-house, to restore a minister of it, because it did not appear that he had complied with the requisites necessary to give him a primâ facie title, adding that a mandamus to admit was granted merely to enable the party to try his right; but the court had always looked more strictly to the right of the party applying for a mandamus to be restored: for if he had been before regularly admitted, he may try his right by action for money had and received for the profits. Therefore, in order to entitle himself to this extraordinary remedy, he must lay such facts before the court as will warrant them in presuming that the right is in him, whereas here no facts have been stated to show the ground of his title (b). So where the trustees of a chapel of dissenters who, for want of a pastor, had been without a congregation, engaged with a new pastor for a year at a salary, who gave notice in the papers of opening the chapel; and, on the first day of opening, gave notice to the congregation there that they should proceed to an election of a pastor after divine service that day, and accordingly took votes. Upon being dispossessed by the trustees after the year, the pastor applied for a mandamus to be restored, alleging that he was elected by the congregation for life. The court refused to grant it, on the ground that supposing there was a competent body to elect there was not sufficient notice given of the election, and therefore they left the party to try his right in an action. As a foundation for such an application, there must be a probable colour of an election laid before the court (c). A mandamus was granted to compel the warden of a college to affix the common seal of the college to an answer of (b) Rex v. Jotham, 3 Term Rep. 575. (c) Rex v. Dagger Lane Chapel, 2 Smith, 20. CC the fellows and scholars of the college to a bill in chancery, contrary to his own separate answer. Thus on an application by the majority of the fellows of Wadham College to the Court of King's Bench for a mandamus to be directed to the warden of the college, to compel him to affix the common seal of the college, to an answer of the sub-warden, bursars, dean, and principal officers of the college, to a bill filed in chancery against the warden, fellows and scholars: the object of the bill was to compel the execution of a lease, according to an agreement alleged to have been made by the college, but which the fellows insisted was not made by a majority of them, as it ought to have been. The warden disapproved of the answer of the fellows, and therefore had refused to put the seal of the college to it. The Court of Chancery had staid process of contempt in mercy to the acquiescing parties, and the court granted the mandamus (d). The head of a college, by affixing the common seal to an answer of the other members, does not thereby contradict his private separate answer (e). Where, by the statutes of a college, the fellows are to nominate two persons to the visitor, by an instrument under seal, to which the visitor is directed to give implicit confidence, of which two persons the visitor is to choose one to be the head of the college: this does not concern him in his capacity of visitor; and if he reject the nominees of the fellows and name a third person on the ground of their not having followed the statutes, a mandamus will issue, if it appear that they have acted conformably to the statutes. Upon an application for a mandamus to the Bishop of Ely to appoint one of two persons whom the fellows had nominated and elected to the office of master of Peterhouse, in Cambridge, it appeared by the affidavits, that a vacancy happened by the death of the late master, and that the fellows proceeded to an election; that at that time there was only one fellow of the college (Mr. Borlase) who was duly (d) Rex v. Windham, Cowp. 377. See Rex v. University of Cambridge, 1 W. Bl. 547. (e) Rex v. Windham, Cowp. 378. qualified by the statutes, whom they returned to the bishop together with another person (Mr. Barnes), who was a member of another college: it also appeared that Mr. Longmire, who had formerly been a fellow of Peterhouse, but had for some time before ceased to be such, still kept his name on the college boards. This nomination, so made by the fellows, was rejected by the bishop, who appointed Mr. Longmire, either under an idea of his general visitatorial power, or of a lapse in consequence of the fellows not having made a proper nomination; and the question was, whether Mr. Longmire ought to have been preferred to a person who was member of another college? Two objections were made on the part of the bishop to the application for a mandamus for him to appoint either Mr. Borlase or Mr. Barnes to be master of the said college;-first, because the court had no jurisdiction upon the subject, the bishop having acted as visitor, whose decisions are final; and, secondly, that admitting his determination not to be conclusive, he had put the right construction upon the statutes: if so, whether he had acted under his visitatorial authority or not, the court ought not to grant a mandamus. The court decided that the case was not within the bishop's visitatorial power; since the statutes of the college had restrained him from making use of that power in the present instance, admitting that in every case within a visitor's power, and where he sits in the exercise of that power, his acts are not to be questioned in courts of law. The founder had thought fit, by the statutes, to invest the Bishop of Ely with general visitatorial power; but he had a right to restrain him in certain cases, if he thought proper; and as to those objects, the bishop was not visitor. On the construction of the statute for the election of a master, the power of the bishop was held to be limited and restrained; and that he could not interfere as visitor; the only power which he could exercise being to judge of the fitness of the two persons nominated by the fellows. It was also held by the court, on the construction of the statute of the college, that it was the intention of the persons making it that the fellows should judge of the |