CHAPTER III.

OF THE MANNER IN WHICH A BENEFICE, OR THE

PROFITS THEREOF, MAY BE LOST.

SECTION 1.

Of Sequestration.

A WRIT of fieri facias de bonis ecclesiasticis is a writ which What it is. may be sued out to the bishop of the diocese, when to a common writ of fieri facias the sheriff has returned that the defendant is a beneficed clerk, not having any lay fee; for these bona ecclesiastica are not to be touched by lay hands. And the bishop, or, in practice, the registrar of the diocese, thereupon sends out what is called a sequestration of the profits of the clerk's benefice, directed sometimes to the churchwardens, or very commonly, as matter of convenience, to the creditor at whose suit the writ has issued, or it may be to any other person, (for the bishop is not restricted in this respect,) directing them to collect the profits, and to pay them to the plaintiff, till the full sum be raised. The following is the form in which the writ of sequestration runs :

"We, therefore, proceeding by virtue of and in obe- Form of the dience to the said writ, and inasmuch as in us lies duly writ. executing the same, have sequestrated all and singular the tithes, fruits, profits, oblations, obventions, and all other ecclesiastical rights and emoluments of and belonging to the rector (or vicar'), and by these presents do sequester the same, and give and grant unto you the said E. F. full power and authority to sequestrate, collect, levy, gather, and receive all and singular the tithes, fruits, profits, oblations, obventions, and all other ecclesiastical rights and emoluments of and belonging to the rectory (or vicarage') and parish church of aforesaid, and the same to sell and dispose of, and the money arising therefrom to apply to and for the due payment of the debt and costs in the said writ mentioned, subject to the said indorsement on the said writ; also subject, &c." a

Instead of a fieri facias, the plaintiff may sue out a writ of sequestrari facias, directed, tested, and returnable, &c.

a See note to Waite v. Bishop, 1 Cromp. Mees. & Rosc. 507.

Two kinds of

as the fieri facias; commanding the bishop to enter into the rectory, and take and sequester the same, and hold them until of the rents, tithes, and profits thereof, and of the other ecclesiastical goods of the defendant, he have levied the plaintiff's debt. This writ is in the nature of a levari facias, the other is in the nature of a fieri facias.

This is the mode of sequestrating where the sequestration is for satisfaction of a debt; but a sequestration is also very commonly a punishment or sentence pronounced by the bishop in his own court; and in that case it issues originally from the bishop.

Sequestrations may, therefore, be considered of two sequestrations. kinds; first, such as issue at suit of a creditor, being founded on the return made by the sheriff, and where the bishop acts ministerially in aid of the sheriff; and, second, such as issue as an ecclesiastical sentence or punishment, and where the bishop acts originally.

Publication of.

Sequestrator.

His duties.

The sequestration, when made out, should forthwith be duly published, which was formerly done by reading it in church during divine service, and afterwards at the church door, but now, by fixing a copy of it on the church door; and the power of sequestration only ope rates from the time of publication, and not earlier; so that any profits which may have accrued before the publication cannot be taken by virtue of it; and if other sequestrations were taken out, that which was first published would have priority.

The sequestration having been thus published, the duties of the sequestrator begin. The sequestrator may be any person whom the bishop thinks proper to appoint for that purpose; and he is the bishop's officer, or, as Lord Stowell calls him, his bailiff. For the sake of convenience, this is very commonly the creditor; but if the creditor is appointed, he has no greater authority or power in consequence than an indifferent third party would have.

His duties are easily understood. He is in the first place to consider himself in the same position as the incumbent of the benefice would have been, as to all charges and outgoings, which it would be the duty of the incumbent to provide for; since the profits of a benefice can never be correctly said to belong to the incumbent absolutely, being to be appropriated first to certain purposes for the benefit of the parishioners and their church, and

b See Chitty's Pract. 788.

d See 1 Vict. c. 45.

f Bennett v. Apperley, 6 Barn. & C. 626.

Whinfield v. Watkins, 2 Phill, 8,

c6 Barn. & C. 630.

e Waite v. Bishop, ante.

the residue only to be the property and for the benefit of the inucmbent: a sequestrator, therefore, cannot be in a better position.

A demand having been made against a sequestrator for Must repair, dilapidations, the sequestrator answered that he was ready and is liable for dilapidato produce his vouchers for what he had paid, part of tions. which he had expended in repairs. Lord Stowell directed the account to be furnished, but said, upon the general principle, he was inclined to hold that the sequestrator would be liable for dilapidations; for that although the sequestration may not mention any particular purpose but payment of the particular debt, yet it was a thing incident to and inseparable from the subject-matter itself, that there should be certain charges and duties for which the sequestrator would be bound to provide. The instrument, he adds, which is issued under the authority of the bishop, contains an allowance of all necessary charges; and the clergyman is by law equally required to provide such repairs, as well as the performance of divine service, and he cannot exonerate himself from one of those duties more than from the other." And in another case the same learned judge says to the same effect.

A sequestrator is bound to repair edifices belonging to the benefice, and he may be compelled to do so by process from the bishop's court; the repair of the house is as necessary a charge as the supply of the church itself; the sequestrator may therefore be compelled by the bishop or churchwardens to make those repairs, and nothing can exonerate him from them.

Besides paying all these charges to which the incumbent Must pay for would have been liable, the sequestrator must, out of the the performaccruing profits, provide for the proper service of the vice of serchurch; and this is regulated by the bishop, both as to the person who is to perform such service, and the amount of salary he is to receive, the sequestrator having only to pay such sum as may be directed.*

After payment of all these necessary charges, the seques- Ultimate trust trator is to collect the growing profits, to be paid over to of profits. him in whose favour the writ is issued, until the amount of

the sum for which the benefice has been sequestrated has been satisfied.'

Where upon the death of an incumbent whose living had been under sequestration, and who had been discharged under the Insolvent Debtors' Act, a balance remained in the registry of 817., this was claimed by a Whinfield v. Watkins, ante. 12 H. Black. 582.

Hubbard v. Beckford, 1 Cons. R. 307. k1 Cons. R. ante.

Remedies by.

Remedies against.

builder who had done repairs, by the succeeding rector for dilapidations, and by the assignee under the Insolvent Act.

A reasonable allowance out of the profits is usually made to the sequestrator according to the trouble he may be put to in the collection of the profits of the benefice. Dr. Burn also says that a reasonable allowance out of the profits is to be made for the maintenance of the incumbent and his family (in case there is an incumbent), if he has not otherwise sufficient to maintain them.

Sequestrators cannot maintain an action for tithes in their own name at the common law, nor in any of the king's temporal courts, but only in the spiritual court, or before the justices of the peace, where they have power by law to take cognizance.m

When the debt has been satisfied, the sequestrator is to deliver up his charge, and give an account of the due application of the sums which he may have received, which if they refuse to do, or if the accounts rendered by them are not satisfactory, the remedy of the incumbent is in the Ecclesiastical Court. But if the sequestrator, being called to account in that court, can show that the sequestration is finished and determined, and that the accounts have been made up, Lord Stowell says he may not be liable there, but may be liable elsewhere, as it did not seem to him that that court could interfere after the sequestration was closed, and the connection of the sequestrator with the living has ceased."

If the sequestrators, being called to account in the Ecclesiastical Court, delay to give an account, it is said by Watson, the judge useth to deliver to the party grieved the bond given with a warrant of attorney to sue for the penalty thereof, to his own use, at the common law.* The bond is given to the bishop, and there appears to be no positive objection to his delivering over the bond to the incumbent in this manner and for this purpose.

It is said that in one case a bill in equity was filed for an account of profits received by sequestrators, that it was objected that the bishop ought to have been made a party, since the sequestrator is accountable to him for what he receives; but there the case was withdrawn.P But if the sequestration were still in force, and the question was simply one of account as against the sequestrator, a bill in equity would not appear to be proper, as the sequestrator is the bailiff of the bishop, to whom he is bound to

m Johns. 122; 3 Burn's E. L. 340.

• Wats. ch. 30.

n Whinfield v. Watkins, ante. P See 3 Burn's E. L. 340.

there have been

account; and the question in such a case, relating solely to ecclesiastical revenues, should be determined in the Ecclesiastical Court. But where, although the subject is ecclesiastical revenue, yet the question in dispute arises Disputes as to between different parties laying claim to the profits, there priority of a bill in equity may be, and frequently has been, resorted claims, where to for the purpose of determining the priority of such sequestration claims. And it has been there decided, that a creditor and other inwho has obtained a sequestration cannot thereby defeat cumbrances. the claims of any prior incumbrancer on the profits. For that where a creditor of a clergyman seeks to obtain payment of his debt by judgment and sequestration, he is, in the contemplation of that court, in the same state as any other creditor who has taken out execution; and a creditor, having taken out execution, cannot hold property against an estate created prior to his debt.

Where a clergyman had, by indenture, assigned his stipend for a term of ninety-nine years for securing payment of an annuity; the annuity became in arrear, and the assignee of the stipend then gave notice of the assignment to the parties by whom the stipend was collected. Before that time, but subsequent to the assignment, the rector had incurred a debt to another party, by whom the stipend had been sequestered. Upon bill filed by the assignee of the stipend, it was decreed that he was entitled to receive satisfaction for the arrears and growing payments of his annuity prior to the claims of the subsequent creditors, who had taken out sequestration." And so in a similar case, where the plaintiff had an assignment by indenture of the profits of the living for a term of years to secure an annuity granted to him by the rector, but a sequestration had been obtained by subsequent creditors, a receiver was appointed on the plaintiff's application, and an injunction was granted to restrain the bishop from commencing or prosecuting any proceeding in respect of the matters, and to restrain the other defendants from putting in force the sequestration obtained by them."

The principle of these cases has been followed in other cases subsequently, and the principle appears very clear and satisfactory, namely, that sequestration being only a means of enforcing a claim, cannot entitle the person obtaining it to have his claim preferred to that of other parties who have an actual legal claim and prior incumbrance on the property; so that a sequestration can never oust a

q White v. Bishop of Peterborough, 3 Swanst. 116.

Errington v. Howard, 1 Ambl. 485.

• Silver v. Bishop of Norwich, 3 Swanst. 112.