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LAW REPORT.

No. XXXIX.-ANNUITIES CHARGED ON A BENEFICE.
COLEBROOK AND OTHERS v. LAYTON.*

A RULE was obtained, calling upon the plaintiffs to show cause why the judgment in this case, which was upon a warrant of attorney, should not be set aside. The rule was grounded upon an affidavit of the defendant, stating that he was the vicar of the vicarage and parish Church of Chigwell in Essex, and curate of the perpetual curacy of Theydon Bois in that county; that the plaintiffs were" the trustees of the estate and property of the United Empire and Continental Life Association;" that at the time of the agreement for the purchase of the annuity thereinafter mentioned, it was expressly agreed, that the same should be charged and chargeable upon the above mentioned ecclesiastical benefices, which were to be demised to a trustee for a certain term of years; and that payment of the annuity should be further secured by a bond and warrant of attorney of the defendant, with a judgment to be entered up thereon," for the purpose of charging

deponent's respective benefices with the payment thereof in manner thereinafter mentioned." The affidavit then set out an indenture, dated the 3d of September, 1824, to which there were several parties, and whereby, in consideration of the sum of 2000/ paid by the plaintiffs to the defendant, the latter granted to the plaintiffs an annuity of 2371. 28., to be yearly issuing and payable by, and from, and out of, and charged and chargeable upon the said several benefices, and the glebe lands, messuages, tithes, tenements, oblations, obventions, profits, and emoluments thereof; such annuity to be paid quarterly. The deed contained the usual covenant for payment of the annuity; a power of distress if the same were in arrear twenty-one days; or if in arrear thirty days, a power to enter upon and take and receive the rents and profits of the respective livings, and satisfy the annuity; and it contained a demise by the defendant of the same benefices to

A Clergyman purchasing an annuity, agreed that it should be charged on his benefice, and the payment secured by a bond and warrant of attorney, with a judgment to be entered up thereon, for the purpose of charging the benefice. By the deed of grant the annuity was made payable on certain days and chargeable on the benefice, with a power of distress, &c.: it also contained a demise of the benefice to a trustee, with a power in default of payment to receive the tithes, rents and profits, &c. It was thereby also declared, that the bond and warrant of attorney (referred to in the deed as having been already prepared, and meant to bear even date with, and to be executed and given at the same time as the deed,) and the judgment to be entered up thereon, should be further securities for the annuity; and that immediately after such judgment the creditors might sue out execution, and do such other acts as might be necessary for obtaining a sequestration: and that as often as the annuity should be in arrear, they might put in force such writ of sequestration. The condition of the bond, (after reciting the agreement for purchase of the annuity, and for securing the same by such bond, warrant of attorney, and judgment, reciting also the deed of grant,) was declared to be for the due payment of the annuity on certain days. The warrant of attorney gave authority to receive a declaration at the suit of the plaintiffs, in an action of debt on a bond, describing it as a bond of even date with the warrant of attorney, executed by the grantor of the annuity, and given to the grantees, and to suffer judgment. The defeazance recited, that it was given to secure the payment of an annuity of the amount mentioned in the bond, payable on the same days as in the condition of the bond was expressed.

On a motion to set aside the judgment on this warrant of attorney, on the ground that it was a charge on the benefice: held, that this did not sufficiently appear, the reference in the warrant of attorney to the bond amounting to no more than a description of the bond, its date, the parties to it, and the time at which the annuity was to be paid, and not incorporating the terms of the deed of grant (recited in the bond) with the warrant of attorney, so as to make the latter operate as a charge on the benefice; and this being an application to set aside a judgment for irregularity, the rule was discharged with costs.

one Christopher Godmond (a trustee on behalf of the plaintiffs) to hold to him for ninety-nine years (if the defendant should so long live), upon trust, until default of payment of the annuity, to permit and suffer the defendant to take the tithes, oblations, and obventions, rents and profits thereof; and after default, then upon trust to take and receive the same to himself, the said Christopher Godmond; and thereout, or by demising, selling, leasing, or mortgaging the same, to raise sufficient to satisfy the said annuity and such parts thereof as should from time to time become due; and there was a power to redeem the annuity at a sum agreed upon. The deed further contained an agreement or declaration between the plaintiffs and defendant, that the bond and warrant of attorney (referred to in the said deed as having been already prepared, and intended to bear an even date with and to be executed and given at the same time as the deed and the judgment to be entered up on the warrant of attorney) should be further securities for the payment of the annuity; and that immediately after judgment should be so entered up, the plaintiffs might sue out and prosecute such execution or executions by virtue of the said judgment, and do all such other acts, as might be necessary for obtaining a sequestration or sequestrations of the said vicarage and curacy; and that as often as the annuity should be in arrear, they might proceed under such sequestration and sue out execution upon or by virtue of the said judgment by fieri facias de bonis ecclesiasticis, or de bonis propriis, or any other writ whatsoever, or take such other proceeding thereon as they should think fit.

The affidavit further stated that the bond was in fact executed and the warrant of attorney given at the same time, and bore even date, with the aforesaid grant; and that the warrant of attorney was given for the express purpose of charging the said vicarage and curacy with the payment of the annuity, and for the purpose of enabling the plaintiffs to sue out the before-mentioned executions. The bond was in the usual form. The

VOL. XVIII. NO. 111.

condition thereof (after reciting the contract for the purchase of the annuity, and that it had been agreed that the same was to be secured by such bond and warrant of attorney and the judgment to be entered up thereon, and reciting the deed of grant) was declared to be for the due payment of the annuity during its continuance by even quarterly payments on certain specified days, and for paying in a certain event 2000l. for the repurchase thereof. The warrant of attorney authorized the parties named to appear for the defendant, and to receive a declaration at the suit of the plaintiffs in an action of debt on a bond (describing it as a bond of even date with the warrant of attorney, under the band and seal of the defendant, and given to the plaintiffs) and to suffer judgment in such action in the usual manner. The defeazance to this warrant of attorney recited that it was given to secure the payment of one annuity of 2371. 2s., during the life of the defendant, by even quarterly payments, on the Sd of March, the 3d of June, the 3d of September, and the 3d of December, the first payment to be made on the 3d day of December next, as in and by the condition to. the bond or obligation referred to by the said warrant of attorney is more particularly expressed in that behalf;" and it authorized the plaintiffs when and as often as the annuity or any part thereof should be in arrear for the space of twenty-one days after the days appointed for payment thereof, to sue out such execution or executions upon or by virtue of the said judgment by one or more writ or writs of fieri facias de bonis ecclesiasticis, or de bonis propriis, or both, or any writ or writs, or to take and adopt such other proceedings, as they should think fit, for the recovery of the annuity and all

costs.

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Sir James Scarlett and F. Pollock showed cause in the present term. There is no ground for setting aside this judgment. The validity of it depends solely on the warrant of attorney; and as there is nothing on the face of that instrument to show it was given with intent to charge, and that it does charge, the benefices, contrary to the

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13th Eliz. c. 20, it is quite unobjectionable, although the consequence of any execution which may issue upon the judgment founded on it may be to affect the profits of the living. The want of any objection apparent upon the face of the warrant of attorney clearly distinguishes this case from Flight v. Salter, and brings it within the principle recognised in the cases of Gibbons v. Hooper, and Wynne v. Robinson, and further sanctioned by the judgment of this court in Moore v. Ramsden.

Follett, contra. It is not intended to question the correctness of the decision in Gibbons v. Hooper, and the class of cases which have followed it. This is clearly distinguishable. The fair result of all the authorities is this: where the court is satisfied that the warrant of attorney was given with an intent that it should operate as a charge upon the benefice, there the judgment founded upon it cannot be supported: but where nothing appears necessarily leading to the conclusion that it was given with such intent, the judgment is free from objection, though the consequence may happen to be, that the profit of the living will probably be taken in execution. If this is the correct rule, and is to be applied to the present case, the judgment must be set aside. In the first place, it is sworn by the defendant (and is not denied) that the warrant of attorney was given for the express purpose of charging the defendant's vicarage and curacy, and of enabling the plaintiffs to sue out the executions mentioned in the grant, obviously meaning the obtaining sequestration immediately upon the execution of the deed. [Littledale, J. Can we take this from the affidavit? We must look to the language of the warrant of attorney to ascertain whether it is or is not a charge upon the living.] The affidavits unanswered are sufficient evidence of the intent of the parties. At all events, the court is not to look to the warrant of attorney alone. Here the deed of grant, the bond, and the warrant of attorney, all bear even date, were executed and given at one and the same time, and all in pursuance of a previous agreement to that effect. They constitute

together one assurance. If the recitals and powers contained in the deed were expressly contained in the warrant of attorney, it could not be disputed that the latter would be bad; but those statements are virtually and sufficiently incorporated with the warrant of attorney. It expressly refers to the bond, which it minutely describes, and the defeazance refers to it, for it is there stated that the warrant of attorney is given as a security for payment of the annuity in the manner more expressly pointed out by the condition of the bond. The bond too as distinctly refers not only to the deed of grant, but to the agreement previously made, and the stipulation relative to the several securities. The warrant of attorney so expressly refers to the bond, and the bond to the deed, as to make it clear that the warrant of attorney was given with intent to charge the benefices; and, if so, it is void. The ground on which the court, in Flight v. Salter, set aside the judgment, was, that the party giving the warrant of attorney had attempted to do indirectly what the law would not permit him to do directly; and that is equally applicable here, unless it is to be held indispensable that the intention of the parties to charge the living by the warrant of attorney should be expressed in so many words therein. Gibbons v. Hooper cannot be said to govern the present case. There the warrant of attorney did not refer to the deeds, and there was nothing necessarily connecting the deeds with the transaction in respect of which the warrant of attorney was given.

LITTLEDALE, J. I am of opinion that the rule must be discharged. In Flight v. Salter, it was expressly recited in the warrant of attorney, that it was given to secure the annuity which was to be charged on the living. Here the warrant of attorney does not refer to the deed of grant. It is in the common form which would be adopted for providing payment of an annuity secured by bond, but not charged, or intended to be charged, upon any living. It is true there is some incidental mention of the bond in the warrant of attorney. The warrant itself, instead of simply stating a

declaration in an action of debt on bond, describes that bond by mentioning the date, and showing it to have been given by the defendant to the plaintiffs; and the defeazance notices it by stating that the warrant of attorney is given to secure the payment of a certain annuity on given days, and that the first payment is to be made on the 3d of December then next ensuing, "as in and by the condition to the bond or obligation referred to by the warrant of attorney is more particularly expressed in that behalf." But this reference to the bond in the warrant of attorney amounts to no more than a mention of that instrument by way of identifying it as the bond on which the action is to be brought; and the mention of it in the defeazance to no more than a precise and distinct reference to the times for, and the commencement of, the quarterly payments. This does not bring the case within the authority of Flight v. Salter. The stipulation in the defeazance, that a fieri facias de bonis ecclesiasticis may be taken out for the arrears of the annuity, is wholly immaterial. If any execution in consequence of arrears could have issued, that writ might have been resorted to as well as any other, without any express stipulation; and the permission given to make use of it was quite unnecessary.

TAUNTON, J. I am of the same opinion. It is sufficient to say that I think this case governed by Gibbons v. Hooper, and the decisions which have followed it; but even without those authorities, I should have thought this warrant of attorney was not void under the 13 Eliz. c. 20, the primary object of which was to avoid leases made by persons not residing upon and serving their cures: Another of the reasons for passing it is given by Lord Kenyon in Mouys v. Leake. But without adverting to what are generally understood to have been the objects of the act, and looking at the language of the clause on which this application is founded, and which declares that all chargings of such benefices shall be void, I think that to bring the case within the statute there must be an actual charging; and that the intention of the parties to charge, where no

charge is actually made, is not sufficient. In Flight v. Salter the warrant of attorney did operate as a charge on the benefice. There the warrant of attorney recited the deed and made it part of the warrant of attorney. The provisions of the deed in substance were, that Flight was to be at liberty forthwith to obtain a sequestration, though no default might have taken place in the payment of the annuity; and this sequestration was to be a continuing sequestration during the continuance of the annuity even though it should be regularly paid. After reciting this, the defeazance to the warrant of attorney expressly alleged, that that warrant was given, and judgment was to be entered up thereon, to the intent that a sequestration might be obtained and continued, pursuant to the agreement before mentioned. The present case is widely different. There is no reference at all in the warrant of attorney to the deed of grant, and the reference to the bond is no more than a description of the bond, its date, and the parties to it, and of the times at which the annuity is to be paid. Such a reference does not, because the bond itself also refers to the deed, so incorporate the deed with the warrant of attorney as to give rise to the objection which the court relied upon in Flight v. Salter. There, when the terms of the warrant of attorney were acted upon, the plaintiff did charge the living, for he made the sequestration a continuing security for the growing payments of the annuity. In this case the warrant of attorney would authorize no such proceeding. The power to sue out a writ of fieri facias de bonis ecclesiasticis, does not alter the case; no execution is to be sued out but when the annuity is in arrear. In such an event that writ, equally with any other, might have been sued out without any express authority provided by the defeazance.

PATTESON, J. I am also of opinion that this rule must be discharged. Without going the length of saying that the object and intent of the parties to the warrant of attorney must necessarily appear upon the defeazance to it, I am of opinion that it must

appear that their intention of charging the benefice has in fact been accomplished; in other words, that the benefice is by the warrant of attorney so far actually charged, that the party to whom the warrant of attorney is given, following the authority which it confers, would, but for the provisions of the statute of Elizabeth, obtain an actual charge on the living. Now, whatever may have been the intention of the parties here, it is quite clear to my mind that they have not, by this warrant of attorney, charged the living, If it were their object, they have failed to do so. The defeazance only gives a power to issue a writ of fieri facias de bonis ecclesiasticis in case the annuity is not paid, and then only for the arrears. If, by means of the writ, those arrears should be obtained, it would have no further operation, and any sequestration founded upon it would be at an end. For though it is said in the books that a sequestration is a continuing writ, by that is meant that it is a continuing execution for the purpose of levying a given sum,

viz. that for which the writ of fieri facias de bonis ecclesiasticis issues, and no further. That sum, in the present case, could only be the amount of arrears due. Even, therefore, if by referring to the deed, and gathering from that the intention of the parties, I should be of opinion that they meant the warrant of attorney so to operate as to create a perpetual charge on the benefice, it is sufficient to say they have not, by the warrant of attorney, carried that object into effect. The rule for setting aside the judgment must therefore be discharged.

Sir J. Scarlett applied that it might be discharged with costs.

LITTLEDALE, J. This is an application to set aside a judgment for irregularity, the alleged irregularity being that the warrant of attorney is void, and that, consequently, there is nothing to support the judgment. Rules to set aside proceedings for irregularity, if discharged, are usually discharged with costs; and we think this case must follow the general rule.

Rule discharged with costs.

MONTHLY REGISTER.

BATH PETITION FOR THE RESTORATION OF CONVOCATION.

A SYNOD of the Deanery of Bath was holden at Weymouth House, Bath, on Monday, the 15th ult., by the Archdeacon of Bath, agreeable to requisition of the Clergy of that deanery, to petition his Majesty to revive the dormant functions of Convocation. The Synod was opened with a selection of prayers from the Liturgy. The Venerable Archdeacon Moysey then opened the business of the day by expressing his long conviction of the absolute necessity of Convocation.

The Rev. W. D. Willis, rural dean of Bath, then moved the adoption of the petition, in a speech of great argument and eloquence, for which we regret that we have no room. was followed by the Rev. MM. Jelly, Gunning, and Marriot, and the petition was adopted unanimously.

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On the 18th ult., a Synod of the

Deanery of Bedminster was convened by the Archdeacon of Bath, agreeably to requisition, for the purpose of adopting the same petition. The meeting was opened by a selection of prayers from the Liturgy.

The adoption of the petition, which we give at length below, was moved by the Rev. Israel Lewis, of Long Ashton, and seconded by the Rev. Henry Thompson, of Wrington.

The meeting was addressed by those gentlemen, and also by the Revds. James Phillott, Z. H. Biddulph, Kitson, and another gentleman, whose name we did not learn, but who eloquently demonstrated, from the posi

tion

of the American Episcopal Church, with which he was well acquainted, the practical advantage of Convocations. The petition agreed to by the Deanery of Bath was then

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