HILARY TERM, 14 VICT.

WALTHEW v. CRAFTS.

DEBT, under the provisions of the 12 & 13 Vict. c. 67,

by the plaintiff, as sequestrator appointed by the bishop of

1851.

Jan. 15.

To a declaration in cove

nant by a sequestrator for

rent due under a lease, whereby D., the rector of S., demised to the defendant the rectory and parsonage, with the tithes, except the parsonage house, &c., for a term of fourteen years, if the rector should so long live, at the yearly rent of 9807.; the defendant pleaded, that, before the sequestration, D. was indebted to V. and M. in large sums of money, and requested them to give time for payment, and also requested V. to lend him a further sum, which they consented to do, and V. lent the money, upon the terms that D. should execute the indenture in the declaration mentioned, and also another indenture for the purpose of authorising the defendant to apply the rent as the agent and for the benefit of V. and M. That D. did execute the indenture in the declaration mentioned, and also another indenture of the same date, between the defendant of the one part, and D. of the other part, whereby, after reciting the demise to the defendant of the rectory and parsonage, with the tithes, except the parsonage-house, and also reciting, that, by a deed of even date therewith, D. had appointed the defendant his receiver, agent, and attorney, to collect the tithes, rents, &c., (except as in the lease excepted), with a declaration that the defendant might retain a percentage for his trouble; and it was thereby agreed that he should apply the surplus of the tithes, rents, &c., as D. should direct; D. covenanted with the defendant, and directed that the surplus of the tithes, rents, &c., should be applied (amongst other purposes) in payment of the debts due to V. and M., with interest, after payment of certain taxes, rates, and outgoings, and the premiums on policies of assurance on the life of D., for the benefit of V. and M. The plea then alleged, that the lease was executed as part of the same transaction; that D. well knew that the defendant was the attorney and agent of V., and that the indenture was made by D. with the defendant as such agent and attorney, and to enable him to apply the rent reserved by the lease, in the manner above mentioned: that there was due from D. to V. and M. monies exceeding the damages in the declaration mentioned, and the rent due under the lease; and that the defendant had applied the monies alleged to be due for rent according to the provisions of the second indenture. The defendant pleaded also, that, before the execution of the lease, D. was indebted to V. and M. and others, and in consideration thereof, and of a further sum to be lent by V., and of the defendant consenting to be V.'s agent, D. agreed with the defendant and V. to charge the rectory of S. with that sum and the others, by making the lease in the declaration mentioned, and appointing the defendant receiver of the tithes, rents, &c., in order that he might apply the rent reserved by the lease in payment of the monies so to be charged on the benefice; that the money was advanced by V.; and that D., in pursuance of the agreement, and in order to charge the benefice, executed the lease, and also an indenture appointing the defendant receiver: that the lease was part of the same transaction, and was a charging of the benefice contrary to the statute. -On special demurrers to these pleas:

Held, that the former plea did not shew any defeasance of the covenant to pay the rent reserved by the lease; but that, under the second indenture, there was an equitable assign. ment or valid appropriation of so much of the rent as was necessary to pay V. and M. their debts; and that such assignment was a charge upon the benefice, and therefore the lease, which was part of the same transaction, was void under the 13 Eliz. c. 20.

VOL. VI.

B

EXCH.

Lichfield, to collect the profits of the rectory and parish church of Swinnerton, in the county of Stafford.-The declaration in substance stated, that one George Smallwood, in the Court of Queen's Bench, recovered judgment against Christopher Dodsley for 154l. 10s., and, for obtaining satisfaction thereof, sued out a writ of testatum fieri facias directed to the sheriff of Staffordshire; that the sheriff returned nulla bona, and that C. Dodsley was a beneficed clerk, to wit, rector of the rectory and parish church of Swinnerton, in the diocese of Lichfield; and thereupon G. Smallwood sued out a writ of sequestrari facias directed to the bishop of Lichfield; that the bishop issued his warrant directed to the plaintiff, commanding him to sequester the rents, tithes, &c., of C. Dodsley belonging to the rectory of Swinnerton; "And the bishop did thereby make and appoint the plaintiff sole sequestrator thereof, and gave him full power and authority to levy, ask, sue for, recover, and receive into his hands and possession all and singular the rents, tithes, oblations, obventions, fruits, issues, and profits, and other ecclesiastical goods, and to dispose of the same, to the end that thereout the charges of duty and serving the cure in the church and throughout the parish of Swinnerton by a minister to be nominated and approved of by the bishop, with such stipend as he should appoint for so doing, and all other burdens ordinary and extraordinary, incumbent on the said rectory and on the said C. Dodsley as rector thereof, might in the first place be paid and discharged by the plaintiff, and the remainder rendered to G. Smallwood for his damages aforesaid, according to the tenor of the said writ." Averments:-That the plaintiff entered into the rectory, and sequestered the same; that C. Dodsley was, at the time of the recovery of the judgment, and thence continually until the commencement of this suit, the rector of the rectory and parish church of Swinnerton: "That C. Dodsley, before the plaintiff was appointed such seques

trator, and whilst C. Dodsley was such rector as aforesaid, to wit, on the 17th day of June, A. D. 1845, by a certain. deed then made by C. Dodsley, (excuse for profert, the deed being in the possession of the defendant), C. Dodsley demised and granted to the defendant the rectory and parsonage of Swinnerton, and all and singular the tithes and tenths, profits, commodities, and hereditaments whatsoever to the rectory or parsonage annexed, with their and every of their appurtenances, except and always reserved unto C. Dodsley the parsonage-house of the said rectory, and all out-houses, edifices, buildings, gardens, and orchards to the parsonage-house attached or belonging, with all and every the appurtenances for the convenient occupation of the same; and also except the tithes, if any, payable by the occupier thereof; and also except the glebe lands to the said rectory belonging, and all the offerings and dues commonly called Easter dues, and the offerings, fees, or dues payable or given from time to time to the parson, curate, or minister of the parish church of Swinnerton for the time being for marriages, christenings, burials or funerals, or other personal duties or services performed by C. Dodsley: To have and to hold to the defendant for the term of fourteen years from thence next ensuing &c., if C. Dodsley should so long live; yielding and paying therefore during the said term unto C. Dodsley the yearly rent of 980l. on the 1st of March in every year, the first of such payments to be made on the 1st of March, 1846, but first deducting out of such rent all and every sum and sums of money which should or might at any time or times be paid by the defendant for or on account of the taxes, rates, or assessments to be imposed upon or payable in respect of the said demised premises." -The declaration then stated, that the defendant entered into the demised premises, and was possessed thereof, and had, took, received, and enjoyed the same from thenceforth.

1851.

WALTHEW

v.

CRAFTS.

1851.

WALTHEW

V.

CRAFTS.

It then alleged, that, after the plaintiff was so appointed, and whilst he continued such sequestrator, and during the lifetime of C. Dodsley, and whilst he continued such rector, a large sum of money, to wit, 19607. of the rent aforesaid, for the space of two years, became due and payable from the defendant, by virtue of and according to the terms of the said demise, and is still in arrear and unpaid: actio accrevit &c.

Seventh plea. That before the making of the demise, and whilst C. Dodsley was such rector, and before the plaintiff became such sequestrator, to wit, on &c., C. Dodsley was indebted to one Charles Viner in a certain sum of money, to wit, 9851. 16s. 6d., and to one Thomas Mortimer in a further sum of money, to wit, 15177. 18s. 10d., and being so indebted, C. Dodsley applied to and requested C. Viner and T. Mortimer to forbear and give time for the payment of the two several sums of money in which he was so indebted, until the same should be paid as provided for in and by the indenture hereinafter set forth; and also requested C. Viner to advance and lend him a further sum of money, to wit, 14947. 3s. 6d. That C. Viner and T. Mortimer did consent to forbear and give time for the payment of the two sums of money in this plea first above mentioned; and C. Viner did consent to advance and did advance the sum of money in this plea last above mentioned; and C. Dodsley then borrowed the same of him, upon the terms and conditions following, which he then accepted and agreed to, and not otherwise, (that is to say) upon the terms and conditions, that C. Dodsley should execute the indenture in the declaration mentioned, and also the indenture hereinafter set forth, for the purpose of authorising and enabling the defendant to apply the rent in the indenture in the declaration mentioned, in the manner in the indenture hereinafter set forth, as the agent of and for the benefit of C. Viner and T. Mortimer, and for the security of the said

debts. And C. Dodsley did thereupon then, in compliance with and performance of the said condition, and for the purpose aforesaid, make and execute not only the indenture in the declaration mentioned, but also another indenture, (profert), the tenor whereof follows in these words, (that is to say)—" Articles of agreement, made this 17th day of June, A.D. 1845, between John Crafts, of &c., of the one part, and C. Dodsley, clerk, rector of Swinnerton in the county of Stafford, of the other part, as follows: Whereas C. Dodsley, by an indenture of lease bearing even date herewith, hath demised unto J. Crafts all that the rectory or parsonage of Swinnerton, and all and singular the tithes and tenths, profits, commodities, emoluments, and hereditaments whatsoever to the said rectory or parsonage annexed or belonging, or accepted, known, or reputed as part, parcel, or member thereof, with their appurtenances, except the parsonage house of the said rectory &c.: (it set out the exception in the same terms as in the lease), from the day of the date thereof, for the term of fourteen years, at the yearly rent of 9801., payable on the 1st of March in every year, the first of such payments to be made on the 1st of March, 1846, with a power to the said J. Crafts to determine the same as therein mentioned. And whereas, by a deed of even date herewith, C. Dodsley hath appointed the said J. Crafts, and in case of his death, then Edward Maniere, of &c., his receiver, agent, and attorney, from time to time to collect and receive all and every the tithes, rents, issues, and profits, and all arrears of tithes, rents, issues, and profits, now due or owing, and all sums of money due or payable for the same respectively, and all rents, charges, or sums of money, which may hereafter become payable in lieu of and upon a commutation for such tithes, rents, issues, and profits, (except as in the said indenture of lease is excepted), of and from all and every the tithe payers of the parish of Swin

1851.

WALTHEW

v.

CRAFTS.