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committed sometimes to the curate only, sometimes to the curate and churchwardens jointly. Johns. 121. [See for this Uacation.]
3. Sometimes the fruits and profits of a living which is in con- During troversy, either by the consent of parties, or the judge's authority, are sequestered and placed for safety, in a third hand. And thus where two different titles are set on foot, the rights are carefully preserved, and given to him for whom the cause is adjudged. God. Append. 14.
And the judge is also wont to appoint some minister to r 340 7 serve the cure, for the time that the controversy shall depend; and to command those to whom the sequestration is committed, to allow such salary as he shall assign out of the profits of the church to the parson that he orders to attend the cure. Watson, c. 30.
4. Sometimes for neglect of serving the cure, the profits of Neglect of the living are to be sequestered. Id. 15.
duty. 5. Sometimes upon the king's writ to the bishop, to satisfy the Debt. debts of the incumbent. Id.
And this is, where a judgment hath been obtained against a clergyman, and upon a fieri facias directed to the sheriff to levy the debt and damages, he returns, that the defendant is a clerk beneficed having no lay fee. Whereupon a fieri or levari facias is directed to the bishop to levy the same of his ecclesiastical goods, and by virtue thereof the tithes shall be sequestered. (4) Or a sequestrari facias may be issued for the same purpose. (k) The writ
(4) Gilb. Exec, 26. Bac. Ab. tit. Execution, 360. See 3 B. & P.326.
K) “ All such writs of levari facias, which I have discovered, either in the Register, or in Fitzherbert, are in a form agreeable to what is here mentioned, without any order for or mention of a sequestration : and yet, in 1 Mod. 260. North C. J. takes notice that thereupon the bishop used to sequester the ecclesiastical possessions of the defendant; but that is not properly a sequestration : for the ordinary must not return sequestrari feci. He must return fieri feci, or nulla bona, in like manner as a sheriff of a county must do. This I have known in experience that a bishop has been ordered in such a case to amend his return. And in Freem. Rep. vol. i. p. 231. lord North is reported to have said, that the ordinary in such case is but the ecclesiastical sheriff: and therefore in the case of Bishop Wren the court compelled him to make the same return as the sheriff should have done in the like case; and refused to accept of his return, that he had granted a sequestration, but would have either a fieri feci or a nulla bona. And in the report of the same case in 2 Mod, 257, 258. North is stated to have said that the ordinary may seize ecclesiastical things, and sell them, as the sheriff may temporal things upon a fieri facias. But it is to be observed, that he must return fieri feci, and not sequestrari, upon this writ. Blackstone (3 Com. 418.) copies after Burn as to the execution of the writ by sequestration, and refers to
of fieri or levari facias de bonis ecclesiasticis is similar to a common fieri facias, and the bishop, who is in the nature of a temporal officer or ecclesiastical sheriff (5) may seize and sell the profits of the benefice, but he must return fieri or levari feci, and not sequestrari feci, on this writ. (5) He may also, like the sheriff, be called on by rule to return the writ, (6) and if he makes a false return, will be liable to an action. (7) Upon this writ the bishop or his officer, makes out a sequestration directed to the churchwardens, or, on proper security given, to persons of the plaintiff's own appointment, requiring them to sequester the tithes and other profits of the benefice; which sequestration should be forthwith duly published by reading it in church during divine service, and afterwards at the church door, and fixing a copy thereon; for where a sequestration was made out and not published while the writ was in force, but was stayed in the register's hands by desire of plaintiff's attorney, the court held that it had no priority as against other sequestrations afterwards duly made out, and duly published, but that if it had been published, the execution would have taken effect and must have been first satisfied notwithstand
Burn, but cites no authority for the execution; though he does for the form of the writ of levari or fieri facias to the bishop. N. B. There seems to be an inconsistency in the opinion of lord North, that a bishop is to sequester, and yet cannot return that he has done so, but must return either a fieri feci or a nulla bona : for, if he was to return a fieri feci, it seems that he might be ruled to bring the money into court; and, if he was to return nulla bona when the defendant had an ecclesiastical living, the plaintiff might have an action on the case for a false return. 1 Sid. 276. It therefore seems, the ordinary might return a sequestration, where the writ is to levy the debt de bonis ecclesiasticis, as well as when, instead of such a writ, a writ of sequestration is granted to sequester.” — Serjt. Hill's MSS. [Semb. Therefore a fortiori such a return may be made to a sequestrari facias which directs the bishop to take and sequester the living, till he has levied the debt, &c. of the ecclesiastical profits there. See Tidd's App. c. xxxix. 9 72.]
(5) Walwyn v. Auberry, 1 Mod. 260. 2 Mod. 257, 258. 1 Freem. 230. S. C. Hubbard v. Beckford, 1 Hagg. Rep. 307.
(6) The King v. Bp. of London, 1 D. & R. Rep. 486. Languit v. Jones, Stra. 87. S. P. In The King v. Bishop of London (1822), where four writs of sequestration, at suit of different annuity creditors, had been issued by the same attorney, the plaintiff's annuity being prior to the others in date, but entered second by the bishop's registrar in the book kept in the office; the court of K. B. granted a rule to the bishop to return what he had levied, and to give precedence to the plaintiff's suit, on the terms of giving the bishop the costs of his appearing. In this respect, the bishop only acts as sheriff, and the court has the same power over him as they have over that officer.
(7) 1 Sid. 276. Gilb. Ex. 26. Moseley v. Warburton, 1 Salk. 320. Raym. 265. S.C.
ing it was then returnable (8), for the power of a sequestration dates from its publication : Thus where after expiration of notice to quit the glebe a sequestration was published, a demise by the rector laid on the day after the expiration of the notice and preceding the publication is good, though the bishop had indorsed the writ “ Let sequestration issue." (9)
The writ of fieri or levari facias de bonis ecclesiasticis is a continuing execution; and if the sequestration issue and is published before the writ is returnable, it is sufficient, and plaintiff is entitled to the growing profits from time to time, though long after it is returnable, until he is satisfied the sum indorsed on the writ. (8) Yet if it be actually returned, the authority of the bishop is at an end. Therefore where such a writ remained in the hands of the bishop long after it was returnable, who sequestered the profits accruing as well before as after the return day, and being ruled to return the writ, returned only the amount of the sum levied up to the return day, the court of C. P. would not order the writ and return to be taken off the file, but would only permit the return to be amended by inserting the sum levied up to the time when the writ was actually returned (1); the proper way would have been to have ruled the bishop from time to time to know what he had levied. (2) A judgment creditor, who has obtained sequestration of a living, is entitled to an account of the surplus in the hands of a prior sequestrator, after satisfaction of the arrears and growing payments due to the party obtaining the first sequestration; and the court will not take notice of the existence of incumbrances which the party has not followed up with execution and made available.(3)]
And in this case the bishop may name the sequestrators himself, or may grant the sequestration to such persons as shall be named by the party who obtained the writ.
If the sequestration be laid and executed before the day of the return of the writ, the mean profits may be taken by virtue of the sequestration after the writ is made returnable; otherwise not. 3 Bl. Com. 418.
6. Sometimes when the houses and chancels that the incum- Dilapida. bent is bound to repair are ruined and ready to fall, if after due tions. See admonition they shall delay to begin to amend the same within ti
pidations.' two months; then the bishop of the diocese, that time being
(8) Legassicke v. Bp. of Exeter, 1 Crompt. 359. Marsh v. Fawcett, 2 H. Bla. 582. But see Wood's Inst. 608, 609. 1 Crompt. 345. semb. contra.
(9) Doe d. Morgan, clerk, v. Bluck, 3 Campb. 447.
elapsed, shall sequester the fruits and tithes till those defects are amended : and though the admonition proceed from the archdeacon, yet the bishop only hath the power of sequestration.
God. Appen. 14. Appeal. 7. Stratford. If an appeal be made against a sentence of
sequestration, and lawfully prosecuted; the party sequestered
shall enjoy the profits, pending the appeal. Lind. 104. Sequestra- 8. It is usual for the ecclesiastical judge, to take bond of the tor's duty.
sequestrators, well and truly to gather and receive the tithes, fruits, and other profits, and to render a just account. Wats. c. 30.
And those to whom the sequestration is committed, are to cause the same to be published in the respective churches, in the time of divine service. Wats. C. 30.
It is best and most legal for the sequestrators, to receive the
tithes and dues in kind. [ 341 ] . But the 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. Johns. 122.
Thus in the case of Berwick and Swanton, T. 1692. It was resolved in the court of exchequer, that a sequestrator cannot bring a bill alone for tithes; because he is but as a bailiff, and accountable to the bishop, and hath no interest. Bunb. 192.
After the sequestrators have performed the duty required, the sequestration is to be taken off, and application of the profits, to be made according to the direction of the ordinary. And he shall allow to them a reasonable sum, out of the profits, according to the trouble they shall have had in gathering the tithes. And he is also to allow for the supply of the cure, what shall be convenient, relation being had to the charge, and to the profits ; and likewise for the maintenance of the incumbent and of his family (in case where there is an incumbent), if he hath not otherwise sufficient to maintain them.
If the sequestrators refuse to deliver up their charge, they shall be compelled thereunto by the ecclesiastical judge; and if they shall, being called thereunto, delay to give an account, it is usual for the judge to deliver unto 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. Wats. c. 30.
Therefore, if the incumbent is not satisfied with what the sequestrators have done in the execution of their charge, his proper remedy is by application to the spiritual judge; and if he shall think himself aggrieved by the determination of such judge, he may appeal to a superior jurisdiction. Sometimes a bill in equity hath been brought; which yet, as it seemeth, ought not to be brought against the sequestrators solely, for that they are only bailiffs or receivers, and have no interest : As in the case of
Jones and Barret, H. 1724. On a bill by the vicar of West Dean in the county of Sussex against the defendant, who was sequestrator, for an account of the profits received during the vacation; it was objected for the defendant, that the bishop ought to have been made a party, since the sequestrator is accountable to him for what he receives; and the court seemed to think the bishop should have been a party; but by consent the cause was [ 342 ] referred to the bishop of the diocese. Bunb. 192.
[As to sequestration for non-residence, &c. under 57 Geo. 3. c. 99. see Residence.] .
Sermons. See Public worship.
receives since the same, that the boil during the
holy things belonging to the divine worship,) seemeth to be the same with the ostiarius in the Romish church; and is appointed by the minister or others, and receiveth his salary according to the custom of each parish.
It hath been adjudged, that a mandamus lies to restore a sexton; though as to this the court at first doubted, because he was rather a servant to the parish than an officer, or one that had a freehold in his place : But upon a certificate shewn from the minister, and divers of the parish, that the custom was to choose a sexton, and that he held it for his life, and that he had 2d. a year of every house within the parish; they granted a mandamus directed to the churchwardens to restore him. (4) 3 Bac.
(4) Ile's case, 1 Ventr. Rep. 153, 143. The King v. Kingscleere, (Inhabs.) 2 Lev. 18. S. P. Sextons are regarded by common law as having freeholds in their offices : and therefore though they may be punished, they cannot be deprived by ecclesiastical censures. 2 Roll. Abr. 234. A return to a mandamus, that L.C. was not duly elected sexton according to the ancient custom, and that there is a custom for the inhabitants, &c. to remove at pleasure, and that L. C. was removed pursuant to such custom, is good. The King v. Churchwarden of Taunlon, 1 Cowp. Rep. 413.
Where two parishes had been a long time united, and had had a joint sexton who was paid by both, but afterwards one of them claimed a right of electing a separate sexton, of which they had given notice to the other, that other parish cannot maintain assumpsit for money paid, laid out, and expended to the use of the first parish, for their quota of the sexton's salary; for this was paid against their express consent. Nor can the right of the sexton be tried in such case, without his being a party thereto; nor can he bring his action against both parishes on a joint obligation, or against one of them only, for the whole sum. Stokes v. Lewis, 1 T. R. 20.