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plaintiff executed the “subscribers agreement,” costs which he had incurred in relation to hi and the circumstances which took place, after the sequestration execution of that deed by the plaintiff
, were not A sequestrator is liable to account for an arrear of admissible in evidence, in the present action. rent-charge which became due while he was in [They cited Garwood v. Ede, (1 Ex. Rep. 264); possession. Cobb v. Becke, (6 Q. B. Rep. 930); Hervey v.
Where the possession of the sequestrator ended on Archbold, (3 B. & C.626); (2 Stark on Evid. 64);
the 5th March, 1844, no apportionment of the Howard v. Shaw, (9 Ir. L. Rep. 335); Lessee rent-charge which accrued between the 1st of Blackwood v. Gregg, (Hayes' Rep. 277); Clements November, 1843, and that date, could be made, v. Todd, (1 Ex. Rep. 268); Mookler v. Sharpe. A sequestrator is not liable for the gale which
as to charge the sequestrator. (4 Railw. Ca. 52, s. c. 11 Jur. 573).]
Coates and O'Callaghan, contra :- The deeds became due previous to his appointment. are out of this case, as they were executed by The plaintiff in this case had, in Easter Term, the plaintiff, by means of a fraudulent represen- 1841, obtained a judgment for £500 against the tation. We have in this case more evidence of defendant, who was then vicar of the prebendary fraud, than existed in Mockler v. Sharpe, for we have persons appointed to be directors, who never and Roslee, in the diocese of Tuam. A writ of
of Balla, and rector of the parishes of Minolla executed the deeds, or took any part in the pro- levari issued on that judgment, and on the 3rd of ceedings ; and the son of one director, put in the June, 1841, the benefices of the defendant were place of his father ; further, there were 6,000 shares allotted, and deposits paid only on 3,200. sequestered, and T. Lancaster appointed seques In Garwood v. Ede, there was no fraud found by fendant did not reside in any of his parishes ; and
trator. When this sequestration issued, the de. the jury. The action for money had and received is an equitable one, and the plaintiff is entitled to on the 20th of July, 1841, the Lord Bishop of get back his money, the object for which he sub- served on the defendant, and, being disregarded by
Tuam issued à monition to reside, which was scribed not being carried out. [Moore, 1. when him, a sequestration for non-residence issued on the once a party executes a deed, authorizing certain expenditures, it is under that deed he must look for 5th of March, 1842, and the said T. Lancaster was
On the 5th of March, redress]. There was no expenditure within the appointed sequestrator. power of the deed. The prospectus of the com; from non-residence, and on that day another cler
1844, the benefices of the defendant became void, pany depended upon the full amount of capital being realized, and £62,500 was all that was gyman was inducted into them. On the 15th of subscribed for. The estimates had to be altered, June, 1848, the plaintiff obtained, from this court, and the directors by varying the nature of the un- an order of reference to the Master, to take an aedertaking in this respect, released from their con fendant, from the 3rd of June, 1841, the time when
the the 4th November. The promoters never had a the first sequestration issued, to the 7th of March, hope of realizing the capital, and the plaintiff was how said revenues were applied, and what sum was
1844, when the benefices were avoided—to report induced by misrepresentations, to take a part in the undertaking. [Moore, J. I do not think, fraud due to the plaintiff
, after giving all just credits and at one time is proof of fraud at another]. [They were by charge and discharge; and, on the 3rd of
allowances. The proceedings upon this reference cited Maguire v. Goddard, (2 Jebb & Sym. 455); January, 1849, the Master made his report, in
v. Crosbie, (8 B. & C., 814).] Per CURIAM.-The great difficulty the court
which he certified (among other things) that counsel feels, is, in applying these facts to defeat a deed in for the plaintiff objected to allow the bishop several a court of law; and as we are not able to see upon sums which he claimed credit for in his discharge, what legal grounds the jury could bave acted, we
and submitted that the bishop should be charged think in this case, there must be a
with the receipt of certain moneys, the particulars Venire de novo. of which the Master set out in his report
, and referred back to the court, as involving questions
of law. The case now came before the court MIDDLETON V. MAXWELL.-Jan. 27.
upon motion on behalf of the plaintiff to coufiru Priority between Sequestrations- Costs and Ex- the report.
penses-Liability of Sequestrator for Arrears Sir T. Staples, Q.C.(with him Dr. Wiley) for the Apportionment of Rent-charge-5 Geo. 4, c. 91 ; plaintiff.—The officer has referred six questions to 18 2 Vict. c. 106.
the court. 1st. Whether the bishop, or his seques. A judgment creditor issued a sequestration against trator, is liable to account for an arrear of £63
an incumbent, and thereupon went into the pos- which became due while the sequestrator was in session of his benefices. The bishop of the diocese actual possession. 2ndly. Whether the sequessubsequently issued a sequestration for non
trator is liable for the gale which became dae residence against the same incumbent. Held, on the 1st of May, 1841, amounting to £143, (Crampton, J, dissentiente) that the sequestra- [Bluckburne, C. J.-- You cannot claim that.] tion for non-residence had the effect of suspending 3dly. Whether there should be an apportionment the creditor's sequestration, and that the bishop of the rent-charge which became due between the was entitled to apply the proceeds of the benefices, 1st of November, 1843, and the 5th of March, in the first instance, in defraying the necessary
1844. [Crampton, J.-The sequestrator could expenses of serving the cure, and in paying the not bring any action until after the 1st of May
when the gale became due.] [Moore, J.-It is incumbent, and ended in the avoidance of his beneonly in the name of the sequestrator you can bring fices. It is perfectly plain, that the right of the an action.] The fourth question has reference to sequestration creditor to attach the income arising certain sums that the sequestrator paid, which, we from these benefices, was, in its nature, puisne to submit, he was not authorized to pay ; first, £2 10s. the sequestration of the bishop. The bishop issued paid in October, 1841, to the chapter of the cathe- his sequestration to compel the incumbent to perdral for preaching--[Blackburne, C.J.-It is a form one of the paramount duties connected with necessary outgoing for the special duties of the his benefices, namely, to reside in his parish ; and parish, and the bishop has a power to appropriate it suspended the right of his creditor while that duty a sum out of the proceeds for such purposes. The remained unperformed, the creditor being in no parochial duties are performed by the curate, but better condition than the incunibent. The bishop there are charges for which the prebendary of the was acting in the discharge of a public duty, and cathedral is liable]; and, secondly, £30 98., the having nominated the same sequestrator who had costs of the sequestration which issued in 1842, been appointed the year before, the proceeds of after the creditor's sequestration, for the purpose the benefices, after the taxes were defrayed and of enforcing the residence of the incumbent. the necessary expenses of serving the cure deducted, [Perrin, J.-It is a subsequent demand for a were to be applied in the payment of such reasonparamount title.] A subsequent right of action able expenses as might be incurred in relation to ought not to interfere with the prior title of the the sequestration. These are the expenses which judgment creditor. [Blackburne, C.J.-The ques- the plaintiff now objects to allow the bishop; but, tion is, whether the bishop can interfere with the in my judgment, the bishop's right to those credits prior sequestration, so as to enforce the perform is paramount to any title which the creditor has to ance of the duties of the parish upon which the the income of these benefices. It is plain, that the property is held.] [Moore, J.-Whether this is bishop might have effectually put the creditor's not an exercise of a paramount title by the bishop.] sequestrator out of possession, and thereby bave The fifth question is, whether the bishop was em-treated his sequestration as a perfect nullity. I powered, after one sequestration issued, to increase may further observe, that these costs were incurred the salary of the curate to £75. [Moore, J.- in a proceeding for the benefit of the creditor, the Must not the sequestrator take the rents and profits, object being to enforce the residence of the insubject to the right of the bishop to provide for cumbent, upon which the estate was to depend. the due administration of the duties of the parish ?] CRAMPTON, J.I am not able to take the same The last question is, whether we are entitled to view of the question before the court.
That quesinterest, as against the sequestrator. [Black- tion has reference to the priority between two burne, C.J.-We will not argue this question until sequestrations. In May, 1841, the plaintiff obwe see if there is a fund in the hands of the tained a sequestration against the benefices of sequestrator.]
which the defendant was then the incumbent. Dr. Radcliffe and R. B. M. Causland for the That sequestration issued in the ordinary form, Lord Bishop of Tuam.- The title of the seques- and, under its authority, the rents of the benefices trator ceased in March, 1844, and the arrear of became legally vested in the sequestrator ; it was £63 is part of the rent-charge which became due duly published, possession taken under it, sums on the 1st November, 1843. [Blackburne, C.J.- received, but the creditor was not paid the entire He must be charged with that arrear, for the suc- amount of his judgment, for £200 yet remained ceeding incumbent has no right to receive any part due to him. In March, 1842_nearly a year of the rent-charge which became due before his after--the bishop issues a sequestration for nonappointment.] The 5 Geo. 4, c. 91, s. 25, gives residence. I see no conflict between these two the power to the bishop to sequester the living, sequestrations. The bishop exercises his power, and to pay the charges incidental thereto. [Cramp- as ordinary of the diocese, by penalties, and one ton, J.-The only difficulty is with respect to the of them is to compel a forfeiture of the living ; costs of the second sequestration.] They referred that power has been exercised, the incumbent is to Waite v. Bishop (5 Tyrw. 90; s. C., 1 Cr. put out of the living, but the title of the creditor M. & R. 507); and Egan v. Heenan (3 Ir. E. cannot be divested by the bishop. From the period R. 50).
of the sequestration under the levari, the rents Dr. Wiley, in reply-The court decided, upon remained undivested, and were the property of the the former motion, that the sequestration of the creditor. The second sequestration cannot have bishop was puisne to the sequestration of the cre effect until the first sequestration is completely ditor. I admit that the English statute (the 1st answered; the law prior tempore prior jure and 2nd Vict. c. 106, s. 110) which gives power to the applies, and renders the second sequestration inbishop to sequester for non-residence, gives a operative until the first is discharged. If this priority to his sequestration, except in the case of question were raised in England, it would be a sequestration upon a judgment duly redocketed ; decided in favour of the bishop, the difference but my argument is, that it required express legisla- being created by legislative enactment. The object tion to postpone the creditor's sequestration. of the bishop's sequestration was the enforcement
BLACKBURNE, C.J.—The only matter remaining of a penalty against the incumbeut for nonto be disposed of is, as to the costs of the seques. residence; it was to punish him for personal mis. tration which issued in 1842. That sequestration conduct, and was not to deprive the creditor, in issued in consequence of the non-residence of the the meantime, of his right. The two sequestra
tions cannot be in operation at the same time; the been expressed by the Lord Chief Justice and my sequestration of the bishop is in the way of penalty, brother Perrin. It appears to me that the credito and, ultimately, of avoidance of the living. The cannot place himself in a better situation than the course of proceeding, up to this moment, shews incumbent, and that he took the emoluments, sub. this, for the bishop's sequestration has never been ject to all the remedies which the bishop had, to in operation for sequestering the rents and profits, compel the incumbent to perform his dutiesome whereas the creditor's sequestration has always of those duties being to reside in his parish. The been in full force. The sequestration of the costs were incurred by the bishop while enforcing bishop, though published, has never been laid on; those remedies, and as they would have fallen on if it were, the surplus would have been paid to the the incumbent if he had been in the receipt of his Ecclesiastical Commissioners, and would not have income, I think they ought to be borne by the ere gone to the creditor. The direction to the Master ditor who derives under him. was founded on the principle, that the creditor's The Court confirmed the Master's report; directed sequestration was not superseded, or interfered the sequestrator to pay over to the plaintiff the with, by the sequestration of the bishop. The law balance remaining in his hands, and gave no costs of Ireland on this subject has never been the same to either side.* as the law of England. The sums may be small, but, in my judgment, a principle is involved in the matter. The bishop is an innocent party, so is the COUNTY DOWN SPRING ASSIZES creditor ; and where two parties are innocent, the
CROWN COURT. one who has a prior right, a right in law, ought to
BEFORE PIGOTT, C.B. succeed.
REGINA U. SIMPSON. Perrin, J.--I concur in the view taken by my Lord Chief Justice, and think the creditor has a A prisoner having been brought before a magistrate, right to receive all the profits of these benefices, and being about to make a confession of guilt
, so long as the incumbent has, but no longer ; he was cautioned by the magistrate in the
following is the creditor of the incumbent, and when the
words :-“ Take care what you say; for that title of the incumbent ceases, his must also cease. ever you say will be written down and used for er An Act of Parliament enables the bishop to enforce against you." Held, that such a caution was the residence of the incumbent, and it never was insufficient, and that the examination of the pri intended that the incumbent should have the ability soner was not admissible in evidence. to set that law at defiance, because his benefice The prisoner was indicted for arson, under the happened to be under sequestration to a creditor. 1st Vic. c. 89, s. 3. On the trial, the Clerk of the When the incumbent refuses to comply with the Petty Sessions in Belfast was called to prove that requirements of the monition, the bishop is com- the prisoner had made a confession before the manded to sequester the profits of the benefice Mayor of Belfast. from thenceforward. The Act of Parliament On being cross-examined by Mr.Gernon, (for the makes provision for the performance of the spiritual prisoner,) as to the caution given to the prisoner by duties of the parish, provides for the costs attend the Mayor, before taking down his confession, be ing the monition and sequestration, and gives the swore that he used the following words :-“Take surplus to the Ecclesiastical Commissioners, clearly care what you say ; for whatever you say will be treating the case of an incumbent who defies his written down and used for or against you." bishop, as of a person who is in contempt, and
Mr. Gernon submitted, that those words constisequesters the profits of his living, from the tuted an insufficient caution. The word " for," beginning, unless he purges himself. The creditor having been used, held out an inducement to the has no reason to complain, for he was only entitled prisoner to confess his guilt, which the absence of to the income as long as it belonged to his debtor. that word would not have done, Queen v. Drew This is the law in Ireland—it is different in Eng. (8 C. & P. 140). In that case, the same words land; for there a provision is made in favour of had been used, by way of caution, and the examinaa judgment creditor which he does not possess in tion of the prisoner was rejected. this country The Irish act, however, does not Mr. Staples, for the Crown, admitted that the leave the case unprovided for, but directs how the present case came within the rule of the Queen v. profits are to be applied. It is like the case where Dreu, and added, that without the examination of a person under an elegit gets into possession of a the prisoner, there was not sufficient evidence to tenant's interest, and the head landlord brings an convict him. ejectment, the elegit will drop when the title of
Pigott, C.B.- The case of the Queen v. Drew the tenant is evicted. We are not interfering with entirely governs the present, and I think the prin the rule which regulates the priorities of creditors.ciple upon which that case was decided is a sound It is said by my brother Crampton, that the seques- one, and should be upheld. tration of the bishop has never been laid on ; but Mr. Gernon called on the court to direct an the answer to that is, that the same person was acquittal for the prisoner. appointed sequestrator in both cases, and, from the
Verdict of acquittal accordingly. time the bishop's sequestration was published, it was the duty of the sequestrator to apply the pro
The question, whether the plaintiff was entitled to inceeds under the Act of Parliament.
terest, as against the sequestrator, was not argued. MOORE, J.-I concur in the opinions which have | Reported by W. Gernon, Esq., Barrister-at-Law,
and that same might be paid in a due course of
administration. DONEGAL v. GREGG.Feb. 24.
On the 23rd of January, 1849, a decree was Practice--Notice.
pronounced in the cause of Hamilton v. Synge, Hughes, Q. C., on behalf of the plaintiffs, moved whereby an account was directed of the personal that the several documents in the notice mentioned, estate of John Synge, of his debts, legacies, &c., now in the Master's office, might be read at the and of his real and freehold estate, and also an hearing of this cause, and that the defendant, account of the personal estate of Francis Synge T. Gregg, may deposit the several books and docu- (the elder) and of his debts, &c., and of his real ments, in said notice mentioned, with the Regis- and freehold estate, and of all charges, &c., affecttrar, to be read in evidence at said hearing.
ing same. MASTER OF THE ROLLs.—This notice is quite
The bill in the second cause was filed by the irregular. I will refuse this motion, with costs, Rev. John Simpson, on foot of two bonds—one for without prejudice to the service of a proper notice, £500, bearing date, the year 1799, the other for specifying the documents in a schedule thereto.
£1,700, and dated in the year 1817--which were executed by Francis Synge; and, after stating,
amongst other matters, that both said bonds were HAMILTON 0. SYNGE.—SIMPSON V. SYNGE. included in the schedules annexed to the deeds of March 3.
1818 and 1824, and that John Synge paid interest Practice-Motion to Stay Proceedings.
thereon up to the time of his death, prayed an
account of the real and personal estates of Francis Where two suits are instituted to raise charges upon Synge and John Synge deceased, and of all
an estate, and a decree pronounced in one, if im- charges, &c., affecting said lands and premises so portant questions are raised by the defendant in charged by the indenture of 1818, with payment of the second suit, the court will not stay proceed. said bond debts, and that the trusts of the will of ings in it, and deprive the plaintiff of the benefit John Synge might be carried into execution, and of obtaining the Lord Chancellor's opinion at the that it might be declared that said bonds formed heuring.
part of those directed by said will to be paid, and By indenture of the 17th of April, 1818, Francis that Francis Synge (the younger) might be directed Synge assigned to trustees certain lands and pre- to pay the sum due, or, in default, that said lands mises therein mentioned, upon trust, out of the
might be sold. rents and profits to pay the interest of the debts
The defendant, Francis Synge, by his answer, and incumbrances then affecting the estates, and submitted, that by the indenture of 1818, the such other debts due by the said Francis Synge
lands and premises therein mentioned were not as were specified in a schedule thereto annexed, charged with said bond debts, and that plaintiff then upon trust for Francis Synge, for life, with the rents and profits
, or by a sale thereof.
was not entitled to have the amount raised out of remainder to John Synge, in fee; and it was thereby provided, that the said estates should be
Martley, Q.C. on behalf of Francis Synge, the liable io the payment of all the scheduled debts of principal defendant, moved, that all further pro. Francis Synge, in exoneration of certain other ceedings in the second cause should be stayed, and estates therein mentioned.
that the plaintiff in the second cause be directed to By indenture of the 7th July, 1824, the life prove his demand under the decree in the first >state of Francis Synge in said lands and pre- lips (6 1. E. R. 509), Wright v. Hamilton (9 1. E. R.
cause, and relied on the cases of Phillips v. Phil. nises was conveyed to John Synge, his eldest son, 119), Brown v. Cavendish (1 Jones & L. 606, S.C., vubject to the scheduled debts.
In the year 1831 Francis Synge died, having, 71. E. R. 369), Jackson v. Welsh (LI. & G. Temp. wy his will, bequeathed all his property to his
P. 346.) idest son, John, and appointed him executor that the question raised by the auswer of F. Synge
Hughes, Q.C. and Mr. Mecredy, contra, contended hereof. In the year 1845 John Synge died, having, by second cause was entitled to have the decision of
was most important—that the plaintiff in the is will, demised certain parts of his estates to
the Lord Chancellor as to whether his demand was rustees, upon trust, for payment of his mortgage, udgment, and bond debts, and the residue of his
a charge upon the estates included in the deed of states, subject to the payment of the surplus of 1818, and cited the remarks of Sir Edward nis debts (if any) and some legacies, he demised to Sugden in Brown v. Cavendish (7 I. E. R. 388-9), is eldest son, Francis Synge, whom he appointed upon the cases of Garrard v. Lord Lauderdale nis executor.
(2 R. & M. 451), and Walwyn v. Coutts (3 Sim. The bill in the first cause was filed by C. Hamil- 14; 3 Mer. 707). on, on foot of a judgment of Hilary Term, 1843, schedule setting out incumbrances, cited Law v.
Mr. Norman, in reply, as to the effect of a btained against John Synge, for the sum of 24,000, and prayed that an account might be taken Bagwell (4 Dr. & W. 398), Dryden v. Foster f the personal estate of John Synge, of his (6 Beav. 146). ebts, &c., of his real and freehold estate, and that
MASTER OF THE ROLLS,- I do not think I would necessary, an account might be taken of the be justified in staying proceedings in the second eal, freehold, and personal estate of Francis Synge, Chancellor. The plaintiff in the first cause is a he father of John, and of his debts and legacies,
judgment creditor of John Synge ; the object of was induced to forbear on the faith of the arrangethat suit is to administer his will, and also the will ment between father and son. The will of John of Francis Synge, the elder. In order to sell the Synge is in terms calculated to raise a serious ques. estate, some of which had been the property of Fran- tion, but which I am not bound to decide, and cis, the elder, it became necessary to ascertain the which may have the effect of onerating the estate incumbrances affecting it generally, including those not only with his own debts, but also those debts created by F. Synge, the elder, and which became which he took upon himself to pay. Also the charges upon that part of the estate of which he prayer of the bill in the second suit does not bear was not tenant for life; and the decree directs an any resemblance to that in the first cause. I am account of the personal estate of F. Synge, of his now called on to stay proceedings, all these equidebts and legacies, and also of his real and freehold ties appearing in the case, upon the statement estate, and of all charges and incumbrances affect- that a charge can be filed in the office by the ing same. The second sait which I am called upon plaintiff in the second cause, under the decree in to stay is by a bond creditor of F. Synge, and it is the first. I do not remember any case where a said that the plaintiff has nothing to do but file a party has been deprived of his right to take the charge under the decree which directs an account Lord Chancellor's opinion on an important ques. of the debts of F. Synge, the elder. If this was a tion, and I very much doubt whether there would simple case, and if the estates descended from be any costs thereon, even though the Master F. Synge, in fee simple, it would be a case of could determine these questions. This is not so ordinary occurrence, and the suit ought to be much a debt of John as a liability, and it is a very stayed ; but there are very important questions serious question, whether the Master could carry and equities raised by it. In the year 1818, a out the equities between them. I have no doubt settlement was executed upon the marriage of John that, in point of law, I am not called on to stay Synge, and provision was made for payment of cer- the proceedings in this suit; for, by so doing, I tain debts, which were scheduled, including the would be deciding the rights of the parties on a bonds of Simpson, the plaintiff, in the second cause. summary application ; and, where there is a beni
The defence set up is, that the deed of 1818 came fide opposition on the part of Mr. Simpson, it within the principle laid down in the case of would be going a greater length than any casei Garrard v. Lord Lauderdale, and, being volun- am aware of, to stay this suit. In the case of tary, no trust was created which could be enforced Rigby v. Strangways (2 Phillips, 175), Lord Coagainst the representatives of John Synge; that tenham refused to stay a second suit, but directed was the case made by the answer. By the deed both causes to be sent before the same Master. of 1824, executed between the father and son, and The only expense which will be incurred by rewhich recited the deed of 1818, and contained a fusing this motion, is the hearing of the cause schedule confined, I believe, to the same debts, as before the Lord Chancellor ; and, having regard were mentioned in the former deed. The father to the very important observations in the case assigned to his son, who thereby became possessed before Lord Chancellor Sugden, which have been of the life estate, and owner of his father's interest. read by counsel at the bar, I cannot, in justice, It has been said that this was a voluntary deed. I deprive the plaintiff in the second cause of the think it was for valuable consideration; covenants benefit of the Chancellor's decision. If these were entered into, by which the property was not questions were submitted to the Master in the first to be liable to any debts except those mentioned in instance, can there be any doubt that there would the schedule, subject to the payment of which it be exceptions to his report, and the case would was conveyed; and it was for that consideration, thus ultimately come before the Chancellor for his amongst others, the deed was executed. The decision. I will, therefore, refuse this application. father was bound as to every debt, except those « No rule on said motion ; and let the plaintif in mentioned in the schedule, which the son became liable to pay; and, so far, it was for valuable con
the second cause have his costs of appearing sideration. If, after the execution of that deed,
on this motion as costs in said second cause, Mr. Simpson attempted to sue F. Synge, the elder,
without prejudice to the defendant, F. Synge, in consequence of John declining to pay interest
at the hearing of said second cause, seeking
that the reference in said second cause should upon the bonds, if any became due, F. Synge would bave a plain equity against his son to indemnify
be to the same Master to whom the reference him. In Kyme v. Dignam (4 I. E. R. 562) it is laid
in the first cause has been made, and that one down, that where a party is bound by covenant,
report should be made in both causes, and and sells subject to the incumbrance, the purchaser
that the second suit should be stayed in the is bound to indemnify the vendor; and, in order
event of the rights of the plaintiff in the
second cause being declared upon said first to prevent circuity of action, the court will not
hearing, or the Master directed to report ou permit a party to say, I am only liable to six
his claim in proceeding under the decree in years' interest, while the person whom he is bound
the first cause." to indemuify is liable to more than six years. In
Lib. 288, fo. 21. the present case there is an equity, if John was bound to indemnify his father, and a question may arise upon which I do not now offer any opinion. This dealing between F. Synge and John has been acted on for twenty or thirty years, and Simpson