benefice, is entitled to priority over a judgment poor clergy, to be applied for the purposes of such creditor of the incumbent, although the latter be augmentation as such bishop shall in his discretion, prior in point of time, but not having obtained under all circumstances, think fit and expedient. sequestration until after the date of the charge. And it shall also be lawful for any such bishop, Hence annuitants rank from the date of the deeds within six months after such order for sequestration, creating them, ousting judgment creditors, who or within six months after any money shall have may have obtained their judgments years before. been actually levied for such sequestration, to remit This is far from being a satisfactory state of the to any such spiritual person any part or proportion law, as it leaves it in the power of the incumbent of such sequestered profit, or cause the same, or to give an undue preference to a subsequent, over any part thereof, that shall have been paid, or a prior creditor. The judgment and annuity, how- directed to be paid to the said trustees and commisever, were prior to the 3 & 4 Vic. c. 105. sioners, to be repaid to such spiritual person, which repayment the said trustees and commissioners are hereby authorized and required, upon an order under the hand of any such bishop, to make out of any money then in their hands, or, if no money shall be in their hands, then out of the next money that shall come to their hands, in any case, where by reason of the subsequent obedience of any such spiritual person to any such monition or order, or the stating and proving such sufficient reasons as aforesaid, such bishop shall think the same proper." But though thus the estates of incumbents, or their benefices, are rendered liable to the payment of their debts, yet the security they offer is far from being satisfactory. Not only is it liable to fail from the uncertainty of life, but it may be destroyed by the sequestration of the bishop, under 5th Geo. 4, c. 91, for non-residence, or other ecclesiastical misdemeanours-this sequestration affecting the very right of the incumbent to the benefice, and consequently the right of any creditors deriving under him. The decision to which we have adverted will illustrate this position. The facts of the case were:—a judgment creditor issued sequestration against the benefice of the Rev. H. Maxwell, and while his sequestrator was in possession of the rents, issues, and profits of this living-the amount of the judgment being yet not fully paidthe Bishop of Tuam issued his sequestration for non-residence. It was contended for the judgment creditor, that being in possession he could not be disturbed by a subsequent sequestration till his demand was paid-if the right of the incumbent to the benefice so long lasted-however, it was held by the court, that the bishop, from the moment of the publication of his sequestration, became entitled to the rents, issues, and profits of the benefice, the sequestration of the judgment creditor being from that moment entirely displaced by the superior character of the proceedings by the bishop. The enactment conferring this authority on bishops, and on which this decision is grounded, is as follows:-(5 Geo. 4, c. 91, s. 25.) In the corresponding English enactment, 1 & 2 Vic. c. 106, there is, in addition to the provisions of the Irish act, one directing that in case a sequestrator was displaced by the issuing of a sequestration under the statute, that after providing for the service of the cure, &c., the profits of the benefice should be applied to the payment of the debt, on account of which the prior sequestration was issued, and then comes the permission to the bishop to remit any part or proportion of the sequestered profits to the incumbent, in case of his subsequent obedience, or rendering of sufficient reasons, taking care, in fact, that although the sequestration of the creditor was displaced, yet that he should suffer no injury which could be avoided, consistently with the proper service of the church. The omission of this provision is a great defect in the Irish act, and places it very much in the power of bishops, if disposed to collude with incumbents, to defeat the rights of bonâ fide creditors. The bishop is the sole judge of insufficiency of residence, and so can at once displace the sequestra"That in every case where it shall appear to any tion of any creditor. He is also the sole judge of such bishop that any spiritual person does not suffi- the sufficiency of the subsequent obedience of the ciently reside, it shall be lawful for such bishop to incumbent, or of his reasons for not obeying. And sequester the profits of such benefice of such spi- though-before he can remit any part or the whole ritual person as aforesaid, until such order shall of such sequestered profits to the incumbent he be complied with, or such sufficient reasons for non- must, if a bishop, transmit to the archbishop, and, residence stated and proved as aforesaid, and to if an archbishop, transmit to the Lord Lieutenant, direct, by any order to be made for that purpose a statement of the nature and special circumstances under his hand, and filed as aforesaid, the appli- of each case, and the reason for the remission of cation of such profits, after deducting the necessary any such penalty, yet this can, under no circumexpenses of serving the cure, either in the whole, stances, be of any benefit to the creditor, nor is or in such proportion as he shall think fit, in the there any reason why, if the bishop or archbishop first place, to the payment of such reasonable ex- did not report the circumstances of the prior penses as shall have been incurred in relation to such sequestration, that the creditor should do so, as in monition and sequestration, and, in the next place, no instance could he get any part of the proceeds, towards the augmentation or improvement of any their application being specially provided for in the such benefice, or house of residence thereof, or any act; so that the non-satisfaction of the prior seof the buildings or appurtenances thereof, or questration would be no reason for not remitting to towards the improvement of any of the glebe or the incumbent the sequestered profits, if the bishop demesne lands thereof, or to order and direct the or archbishop thought proper so to do. same, or any portion thereof, to be paid to the The 30th section of the Irish statute enactsTrustees and Commissioners of First Fruits in Ire-"That if the benefice of any spiritual person shall land, for the augmentation and maintenance of the continue for the space of two years under any Carroll v Hackett Carroll v Darcy Clayton v Falkiner sequestration, and under the provisions of this act, And there is a similar section in the English act, so that even in England the extension of protection to the creditor by providing that the profits should go to the satisfaction of his sequestration, is but short-lived. However, short-lived as it is, it closes the door against collusion, such as we have pointed out as possible; and, as it renders the incumbent only ineligible to be presented to the same benefice again, it is no bar to his being presented to another, in which the same course might be pursued, and with the same success. Cremen v Johnston Daniel v Costello Cochrane v Taaffe Connolly v Grattan Cotton v Lane Second Fifty. Donegal v Cunningham Farrell v Lambert It was pressed in argument, in the case to which Fitzgerald v St. Leger we have adverted, that until the forfeiture was incurred, or the two years had elapsed, the sequestration of the bishop should not deprive the creditor of those profits which his debtor might be entitled to, and that the title paramount of the bishop did not accrue until a forfeiture, and of this opinion was Mr. Justice Crampton, but the majority of the Court decided otherwise. Court Papers. Chancery. Hayes v Hendley Jacob v Taylor Fitzpatrick v Knaresboro' Fleming v Goold Fleming v O'Brien Flynn v Flynn Harris v Harris Hatchell v Sutton Hayden v Hearne Third Fifty. Lawlor v Lawlor Lewen v Lewen Lindsay v Spottswood Locke v Goldsmid Lowe v Lowe Lynch v Tennison Lynch v Lynch Lloyd v Johnson M'Alpine v Baldwin M'Cauce v Robinson M'Dermott v O'Connell M'Dermott v O'Neil Madden v Madden Madzette v Dillon Mahony v Glengall Fourth Fifty. Murphy v Levinge act. with this act, shall apply to proceedings under this Court to apportion costs as it may think fit. All persons becoming parties to be subject to the jurisdiction of the court, &c. 12. Persons feeling aggrieved by report of the master not compelled to take exceptions to the same. 13. In case of death, &c. parties interested may apply to the court to carry on proceedings. 14. When, upon a petition, &c. a reference shall have been made to the master, he shall cause the same to be published by advertisements. 15. 16. Error in advertisement not to vitiate proceedings. Master, before proceeding, &c. shall cause notice to be given to all persons who shall appear to have interest in the subject of inquiry. 17. Persons claiming an interest in any land, &c. may enter a caveat in the registrar's office, and shall be thereby entitled to notice. 18. All persons claiming under reference to appear before the master, who shall in his report state by whom he has been attended, &c. Omission of the master to give notice not to vitiate proceedings. 19. Persons who have been disallowed from attending before the master, or complaining of any certificate, &c., may apply to the court against such disallowance, &c. 20. 21. Walcott v Smyth Walcott v Condon Walker v Walker 22. Wall v Byrne Wall v Despard Walmsley v Walmsley Watson v Pym 23. 24. Watson v Giles Watters v Lidwell Watters v Poole Watts v Busteed Wildridge v Wildridge Directions of this act as to proceedings to have the force of orders of the court. When incumbrance shall be subject to limitations, Report of the master and all other reports, &c. to 25. Court may order the whole of an estate to be sold, although master shall have approved of the sale of a part only 26. Previously to making order for sale, court may confirm the report nisi, and direct service of the same, &c. 27. Assurance of land sold to be made in such form as the master shall direct, &c., and to vest the estate absolutely in the purchaser. 28. Saving of rights of lessees, &c. "Owner." 66 Master." Number. 31. 3. Lands not deemed subject to incumbrance unless same affect a term of not less than 50 years unexpired, &c. 4. Where leases in perpetuity and long terms subject to incumbrance, owner may, subject to approbation of the court, sell same. 5. Leases in perpetuity, &c. to be subject to incumbrances only in certain cases. 6. Owner, &c. having contracted for sale may apply to the Lord Chancellor of Ireland to confirm the sale or contract for sale. 7. Petition to set forth incumbrances, &c., and to be verified. 8. Lord Chancellor, &c. of Ireland may make rules, &c. for carrying this act into effect. Rules, &c. to be laid before parliament. 9. Lord Chancellor, &c. may alter rules from time to time. 10. Upon presentation of petition for sale, the court may refer the same to a master in Chancery, who shall inquire into the particulars, and report. 11. Rules, &c in force with respect to certain proceedings for payment of incumbrances, &c. not inconsistent 33. Notices to owners how to be given. 35. 45. Sales without order commenced by owner or incumbrancer dying, &c. may be proceeded with by the person becoming entitled. 46. Purchase money on sale without order of the court to be applied according to the rights in the land. 47. Receipt of accountant general to be a sufficient discharge. 48. Where it shall appear that there is more than one incumbrance, court may direct proceedings to be instituted to ascertain priority of the same. 49. Application of surplus of purchase money. 50. Money paid into court may be invested in the funds. 51. Usher's poundage. 52. Appointment of new trustees. 53. Where any annual charge, not being an incumbrance under this act, shall affect any land to be sold, the person entitled to such charge may release the same, &c. 54. Parties to whom the surplus of purchase money is paid out of court liable to repay the money to parties proving a better title to the estate sold. Court may require security for such repayment. 55. Sale without order of the court not made bonâ fide for discharge of incumbrances to be treated as a breach of trust. 56. No payment towards discharge of incumbrance, not being payment in full, shall affect right of incumbrancer for balance. 57. Where incumbrancer shall be satisfied by payment out of any sale, &c., and other persons or lands are liable, court may order proceeding to be instituted on such terms as it may think fit, &c. 58. No payment in respect of any incumbrance to impair any right of any persons out of whose estate the same shall be made. 59. Where an estate shall be ordered to be sold court may empower the master to include in his report other interests in the same estate. 60. Ifland sold shall be subject to a lease, &c., compris ing other land, master may apportion the rent, &c. 61. No person entitled to incumbrance shall be bound to accept payment without six months notice, &c. 62. Where incumbrance included in the order for sale shall not be payable or not ascertained, court may order a sum to be carried to the credit of same, &c. 63. Pending proceedings court may appoint a receiver, who shall be subject to jurisdiction of the court. 64. Court may appoint guardians of infants to act for them for the purposes of this act. 65. Court may appoint persons to act on behalf of luna- 66. As to payment of costs. brancer is in possession, or during pending suits. 68. Proofs of debts, &c. in a discontinued suit may be used in a reference upon a petition. 69. Consent where necessary may by leave of the court be given subsequently. 70. Power to second or subsequent incumbrancer to 71. No petition for sale by assigneess of bankrupts or 75. Act to extend to Ireland only, &c. Whereas it is expedient to grant facilities for the sale of estates in Ireland charged with incumbrances,' be it enacted that in this act the word "Land" shall extend to manors, advowsons, rectories, messuages, lands, tenements, rents, and hereditaments, whether subject to any fee farm or other perpetual rent, with or without condition of re-entry, or otherwise, and whether corporeal or incorporeal, and the word "Estate" shall extend to an estate in equity as well as at law, and to any covenant or contract for or right of re newal; and the word "Lease" shall include an agreement for a lease, and the estate or interest created or to be created by such lease or agreement, and the expression "Lease in perpetuity" shall mean any lease or grant for one or more life or lives, with or without a term of years, or for years determinable on one or more life or lives, or for years absolute, with a covenant or agreement in any of such cases, whether in the same or in any other instrument, for the per. petual renewal of such lease or grant, whether such lease shall be derived out of the inheritance or by way of under. lease out of any lease or other estate; and the word "Incumbrance" shall mean any legal or equitable mortgage in fee, or for any less estate, and also any money secured by a trust, or by judgment, decree, or order of any superior court of law or equity duly registered, and also any legacy, portion, lien, or other charge whereby a gross sum of money is secured to be paid on an event or at a time certain, and also any annual charge which by the instrument creating the same, or by any other instrument, is made re-purchaseable on payment of a gross sum of money; and the word "Incumbrancer" shall mean any person entitled to such incumbrance, or entitled to require payment thereof; and the word "Possession" shall include the receipt of the rents and profits; and the word "Owner," as applied to land, shall include any person entitled in possession in fee simple or in tail, or quasi in tail, and any person entitled in possession for a life or lives, or for a term of years determinable on the dropping of any life or lives, or for a term of years of which not less than ninety-nine years are unexpired, not being a lessee at a rent, and also any person entitled in possession as tenant by the curtesy, and any person entitled in possession to the equity of redemption or the property subject to the incumbrance, or to a trust for payment of the incumbrance, whether in fee or for any lessor estate, and any feoffees or trustees for charitable or other purposes, entitled in possession; and the word "Owner," as applied to a lease in perpetuity or other lease, shall include any person entitled in possession to the land comprised in such lease for the whole estate created or agreed to be created by such lease, or for any derivative estate (created by settlement, or testamentary or other disposition thereof), quasi in tail, or for life or lives, or for years determinable on the dropping of a life or lives, or for years of which not less than fifty years are unexpired, not being an underlease at a rent derived out of such lease, and any person entitled in possession to the equity of redemption or the property subject to the incumbrance, or to a trust for payment of the incumbrance, in any such lease in perpetuity or other lease absolutely, or for any such derivative estate; and the word "Person," and the word "Owner" shall extend to a body politic or corporate as well as to an individual; and the word "Month" shall mean calendar month; and the word "Court" shall mean the High Court of Chancery in Ireland; and the word "Master" shall mean the master for the time being having the conduct of the reference; and every word importing the singular number only, shall extend to several persons or things, and every word importing the plural number shall apply to one person or thing; and every word import ing the masculine gender only, shall extend to a female; and words importing sale shall include the carrying into execution any contract for a sale under this act; and where any act is directed to be done by or with respect to any person, or any consent to be given by any person, such act or consent may be done or given by the guardian of such person being an infant, or by the committee of the estate of such person being an idiot or lunatic, or by the husband of such person being a married woman (except that a married woman entitled to any land, estate, or incumbrance for her separate use for life, or for any greater estate, with or without power of anticipation, shall for the purposes of this act be considered as a feme sole); and this act shall operate as well with respect to any estate or incumbrance created before the passing of this act as with respect to any estate or incumbrance to be hereafter created. 2. That where land in Ireland shall be subject to any incumbrance the owner of such land may contract (subject H to the approbation of the court) for the sale thereof, freed from all incumbrances, and such sale, if approved by the court, shall be carried in effect under this act; and such owner or person being the first incumbrancer on such land, or any person being an incumbrancer on such land in possession of the title deeds relating thereto, without having so contracted, may apply to the court for the sale of such land under this act. 3. That for the purposes of this act the land shall not be deemed subject to an incumbrance unless the same shall affect a term of fifty years unexpired, or a greater estate in such land, nor unless such incumbrance shall have been created by the owner of an estate of inheritance, but an incumbrance charged under a power created by the owner of an estate of inheritance shall be deemed to have been created by such owner. 4. That where any lease in perpetuity, or any lease of land for a term whereof not less than sixty years shall be unexpired at the time of such application as herein-after mentioned, shall be incumbered, the owner of such lease in perpetuity or other lease as aforesaid, may contract, subject to the approbation of the court, for the sale thereof, freed from all incumbrances, and such sale, if approved by the court, shall be carried into effect under this act; and any such owner of a lease in perpetuity or other lease, and also any person being the first incumbrancer on any such lease in perpetuity or other lease, or any person being an incumbrancer on such lease in perpetuity or other lease as aforesaid, and being in possession of the title deeds relating thereto, without having so contracted, may apply to the court for the sale of such lease in perpetuity or other lease under this act. 5. That such lease in perpetuity or other lease, shall not be deemed subject to an incumbrance where the same shall affect a derivative estate or interest only, or less than the whole estate created or agreed to be created by such lease in perpetuity or other lease, unless such incumbrance shall have been created by the owner of or person entitled to the whole estate created or agreed to be created by such lease in perpetuity or other lease as aforesaid, but any incumbrance charged under a power created by the owner of, or person entitled to such whole estate as aforesaid, shall be deemed to have been created by such owner or person so entitled. 6. That every owner having contracted for sale, and every owner, or first or other incumbraneer being desirous to sell, may apply by petition to the Lord Chancellor, for carrying into effect such contract for sale, or for the sale of such land or lease; and every such petition, and every subsequent petition, and other proceeding arising out of the same, shall be entitled "In the matter of the act to facilitate the sale of incumbered estates in Ireland," ex parte the person presenting such petition. 7. That every petition for the carrying into effect such contract for sale, or for the sale of such land or lease in perpetuity or other lease, shall set forth the estate or interest of the petitioner in such land or lease in perpetuity or other lease, and the uses or limitations, and the trusts to which the land or lease stands limited or settled, and the incumbrances and other charges affecting the same, including the crown rents and quit rents, subject to which such land or lease is contracted to be sold, and such petition shall be verified as the court shall direct. 8. That the Lord Chancellor, with the advice of the Master of the Rolls, from time to time may make any rules or orders for the better carrying this act into effect, and for the conduct of the proceedings under this act, and that the same may be done with the least cost, and as may be consistent with a due observance of the provisions hereof, and also for fixing the fees to be paid upon any proceedings, and the cost thereof, so that such fees and costs shall never exceed such as are lawfully received on similar matters: provided, that such rules and orders shall be laid before both houses of parliament within one month from the making thereof, if parliament be then sitting, or, if parliament be not then sitting, within one month from the commencement of the then next session of parliament; and any rule and order so made, shall, from the making thereof, for all purposes be deemed and taken to be a general rule and order of the court. 9. Provided, and be it enacted, that the Lord Chancellor, with the advice aforesaid, in like manner as aforesaid, may make rules or orders rescinding or altering former rules or orders. 10. That upon the presentation of such petition, the court, either by an ex parte order, or on notice to such parties as ought to have notice, may refer it to one of the masters to inquire as to the estate or interest of the petitioner in such land or lease, and as to the uses or limitations and trusts to which such land or lease stands limited or settled, and as to the incumbrances affecting the same (including such as are claimed by the parties who come in under the said order as all others, as shall appear from the title deed or on search or otherwise, and including also debts and incumbrances due to Her Majesty, her heirs and successors), and as to the persons entitled under such uses or limitations and trusts, and the persons in whom such incumbrances shall be vested, and as to the order and priority of such incumbrances, and the amount due thereon respectively, distinguishing principal monies from interest, and in case of a mortgagee or other creditor in possession taking all just accounts, and with or without rests, as shall be just, and as to the value of the land or lease which shall have been contracted to be sold, and also, whether any such incumbrances shall affect any land or estate other than the land or lease contracted to be sold, and whether such other land or estate shall be liable in priority, or in equal degree, or in posteriority, and as to the title to the land or lease contracted to be sold, and to the incumbrances, and as to the expediency of sale, and if a part only, of any incumbered land or lease shall have been contracted to be sold, whether such part be proper to be sold, and to make such inquiries relating to or affecting such land or lease, and the incumbrances and charges thereon, as the court shall think requisite, and to report upon the same; and the master shall have authority to direct searches to be made for judgments, and searches of the registry, and in all other places, and inquiries as to the identity of any person or property; and in such report the master may state any circumstances specially as the court shall direct, or as he shall see fit; and the master shall be at liberty to make a separate report as to any of the matters referred to him; and for any of the purposes of this act the said court shall have power to compel the production before the master, of all deeds and other writings relating to any property in question: provided that no incumbrancer, or other person being in possession of any title deeds of, or relating to any property (and shewing right to hold the same as a security for a debt or charge), or lien shall be compelled to produce the same, unless it shall have been ascertained by the report of the master that the money to be produced by the sale of the property, and applicable to the payment of such debt, will be sufficient to pay the same; but such incumbrancer or other person shall, on the order of the court, furnish copies or abstracts of such deeds; and in every case in which such incumbrancer, having such right, shall be required to produce such deeds or writings, or to furnish such copies or abstracts, the costs and charges of such production, or such copies or abstracts, shall be paid by the party requiring the same, or otherwise, as the court shall direct; and all orders for the production and for the furnishing of copies and abstracts of any such deeds, may be made on persons residing out of the jurisdiction of the court; and all notices to be given under this act, may be given and served out of the jurisdiction of the court; and the powers, provisions, and directions of an act passed in the 41 G. 3 c. 90, shall extend to all orders to be made under this act. 11. That all the laws, rules orders powers, and practice in force, with respect to proceedings in the court in a suit for foreclosure or redemption of a mortgage, or for sale of estates for payment of incumbrances or debts, shall apply to the proceedings under this act; and all such proceedings by way or in the nature of further directions and otherwise, in case of a sale under this act, may be had and taken as in case of a decree for sale; and in every proceeding under this act, the court shall (except in the case herein-before |