
    *The Rev. John Bracken v. William and Mary College.
    [Thursday, November, 9th, 1797.]
    William and Mary College — Visitors of — Abolishing Professorships. — it having heen decided, that the "Visitors of William and Mary College have power to change the Schools and put down Professorships; the Stat. of December, 1779, discontinuing the Grammar School, abolished the Professorship, and the salary attached thereto.
    Same — Public Establishment. — Quaere. If this College is not on public establishment?
    The plaintiff brought an action on the case against the College, in order to recover 5531. sterling, for arrears of salary due him as Professor of the Grammar School. Plea, non assumpsit, and issue. The jury found a special verdict, stating the College charter; the original statutes for arranging the Schools, of which the Grammar School was one, and several subsequent statutes. That the plaintiff was regularly appointed Professor of that School, performed his duty, and received the salary to December 25th, 1779. The verdict, also, refers to the proceedings of the Visitors in 1782 and 1784, wherein is recited a statute of the Visitors, as of the 4th of December, 1779, whereby the Grammar School was discontinued.
    In October, 1787, the plaintiff applied to the General Court, fora writ of mandamus, to restore him to his Professorship; which was adjourned to this Court for difficulty, and refused. Whereupon, he brought this action for the arrears of salary, from the 25th day of December, 1779. The District Court gave judgment in favor of the College ; and, from that judgment, the plaintiff appealed to this Court.
    Wickham, for the appellant.
    The question is, if Bracken was legally amoved? If so, it was by the statute of 1779; but, the jury do not find the statute; they only find evidence of it. They merely state the proceedings, which is insufficient; for, the recital of the statute, was not finding the statute itself; and, therefore, the verdict only finds evidence of facts, and not facts themselves. Consequently, a venire facias de novo at least ought to be awarded.
    The statute was made, when the meeting was not publicly and regularly noti162 fied, as it should *have been; and, for want of which, the statute is void. But, if the statute was of no effect for want of notice, then the verdict is in favor of the plaintiff. So, that any way the judgment of the District Court was erroneous.
    Randolph, contra.
    The want of notice did not render the statute void. No part of the charter requires it. The Visitors are not bound by the rules of corporations in general. They are not like the Professors. But, they are a corporation of a particular construction; and, their functions are visitorial.
    As to the objection that the statute is not found, it may be answered, that our finding is at least equal to that on the part of the plaintiff, which says that Bracken was appointed; and, therefore, if it be sufficient as to us, it is as to him also. But, it is sufficient as to both ; for, finding the recital is equal to finding the statute in haec verba. It is found, that he continued to exercise his functions till prevented by the proceedings aforesaid; which, necessarily refers to the statute. And, the validity of that was settled by the decision in the motion for the mandamus, which it appears was determined on the merits.
    Wickham. The former decision was only, that the College might make such a statute ; but, the question is, if they did so? And, we contend that it is not properly found that they did. It is said, that the Visitors are not bound by the rules of corporations in general;' but, there is no ground for the distinction. At least, they are bound by the rules of common sense, which require that a majority should exercise the powers, and there was not a majority here. It is said, that if their finding is bad, so is ours; but, that just brings it to the venire de novo again. The finding, however, is different; for the very statute, which appointed the plaintiff, is found.
    Randolph. A majority of the whole were present at the meeting.
    *Wickham. But, that was only a majority of a majority; and not a majority of the whole.
   PENDEETON, President.

This is an action on the case, brought by the plain- ■ tiff, to recover 5531. sterling, for arrears of salary due to him as Professor of the Grammar School, in the College of William and Mary, on three counts of indebitatus assumpsit. The jury find a special verdict, stating the College charter; the original statute for arranging the Schools, of which the Grammar School was one, and several subsequent statutes.

They find, that the plaintiff was regularly appointed Professor of that School, performed his duty and received the salary to December 25th, 1779.

The demand is for the amount of the salary from that time; and the defence is, that -by the statute of December the 4th, 1779, the Grammar School was discontinued; which put an end to the duty and salary of the professor. It is found in the proceedings referred to, that such a statute was really passed on that day, but was lost from the negligence of the Clerk to record it; and the proceedings found in 1782 and 1784, were to restore its form. It is supposed its force commenced from the time of passing it. It is not found that the professor did any duty afterwards, but, that he was ready to have done it; from whence notice is presumable, as well as from his being a member of the corporate body, and bound to take notice of the statutes.

In October, 1787, Mr. Bracken applied to the General Court for a mandamus, to restore him to the office, which was adjourned into this Court for difficulty. In June, 1790, it was heard here, and continued over a term for consideration and to be re-heard.

November, 1790. On a re-hearing, the mandamus was denied on the merits, which, I believe, was inserted for two purposes. 1st. To shew the case had been fully entered into, as if the papers had 164 been before *us on the return of the mandamus. 2d. To meet an objection warmly insisted on, that the General Court had no power to intermeddle with the affairs of the College, upon the English precedents, applying to private donations for Colleges; but which some of the Judges at least, of whom I was one, thought did not apply to our College, which had a public and not a private foundation: and to avoid a supposition, that the denial was on that ground, was one reason for placing it on the merits.

It is remembered, that the discussion was lengthy, both in Court and conference. The detail is forgot, but it is well recollected, that the question turned upon the power of the Visitors to change the arrangements of Schools, made bjr the original statutes, and to discontinue the Grammar School. The charter and statutes were all before us, and • among others, that of December, 1779, which must have been allowed its full force, since, there being no particular order for his amotion, the denial must have proceeded from the statute discontinuing the School and his office with it. But, if he had no right to the office, he could have none to the salary, the purpose of this writ: and, therefore, judgment was rightly given for the defendant.

Unanimously affirmed.  