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1851.

WALTHEW

V.

CRAFTS.

nerton aforesaid, and any adjoining parishes, places, townships, or hamlets, or of and from other the person or persons from time to time liable to pay, deliver, or set out the same; and therein he hath given unto the said J. Crafts, and in the event of his death unto the said E. Maniere, the usual powers for recovering payment of the same, with a declaration, that it shall be lawful for the said J. Crafts, and for the said E. Maniere, to deduct and retain out of the monies coming to his hands a percentage, after the rate of one shilling in the pound, as a compensation for his trouble in collecting the said tithes, rents, issues, profits, and arrears, rent-charges, commodities, and emoluments: and it was thereby agreed, that the said J. Crafts and the said E. Maniere, as the case might be, should apply the surplus or residue of the said tithes, rents, issues, profits, arrears, rent-charges, commodities, and emoluments, as the said C. Dodsley should in that behalf covenant, require, order, or direct. Now the said C. Dodsley doth hereby for himself, his executors, &c., covenant with the said J. Crafts, and also with the said E. Maniere, and their respective executors, &c., and doth require, order, and direct, that the surplus of the said tithes, rents, issues, profits, arrears, rent-charges, commodities, and emoluments, may and shall be applied as follows:-First: In paying all the taxes and parish rates, and for the repairs and outgoings charged upon and payable out of the rectory, other than the taxes, parish rates, and outgoings payable in respect of the rectory house, gardens, &c., also any arrears which may be now due in respect thereof; and likewise the stipend of the present curate, or the curate for the time being of the said church, and any incidental expenses, costs, and charges, which may be incurred by the said J. Crafts or E. Maniere. Second: In paying annually to the United Kingdom Life Assurance Company, London, the sums of 67l. 12s. 6d. and 105., being the premiums payable to that Company upon

two policies of assurance upon the life of the said C. Dodsley, for the several sums of 1000l. and 1500l. Third:In paying C. Viner the interest payable to him upon a debt of 24801, owing by C. Dodsley to C. Viner. Fourth: -In paying C. Dodsley, as rector of the rectory of Swinnerton, for the cure of the church there, an allowance or stipend of 100l. per annum, until the tithes of Swinnerton are commuted under the Act of Parliament in that behalf, and immediately thereupon 150l. per annum, such stipend to be paid half-yearly, on &c. Fifth :-In paying annually to the United Kingdom Life Assurance Company the sum of 45l. 12s. 9d., being the premium payable to that Company upon a policy of assurance upon the life of C. Dodsley, for 700l., and which policy is deposited with T. Mortimer. Sixth:-In paying to the said T. Mortimer, by equal payments, annually, on &c., the sum of 400l., until a debt of 15177. 188. 10d. owing to him by C. Dodsley, with interest thereon at 51. per cent. per annum, shall be fully paid and satisfied. Seventh:-In paying annually to the Economic and Asylum Life Assurance Societies, London, the premiums payable to those societies upon the two policies of assurance on the life of C. Dodsley, for two several sums of 500l. and 1500l., which policies were assigned to John Fearn by an indenture, dated &c., upon certain trusts therein mentioned. Eighth:-In paying to Hannah Watson, of &c., or to the representatives of John Lyde, of &c., deceased, or to the said J. Fearn, or to whichever of them is entitled to the same, the sum of 515l. 58. 6d., being the arrears of a certain annuity of 1361. granted to the said J. Lyde and H. Watson by C. Dodsley, by an indenture bearing date &c., and of certain payments made by them or one of them in relation to the premises, and which sum is collaterally secured by a note in writing of C. Dodsley, bearing even date herewith. Ninth:-In paying the balance of whatever may remain of the said tithes, rents, issues, profits, arrears,

1851.

WALTHEW

v.

CRAFTS.

1851.

WALTHEW

v.

CRAFTS.

rent-charges, commodities, and emoluments, unto the said T. Mortimer, until his said debt and interest shall be satisfied. Tenth:-In paying out of the tithes and other things mentioned in the preceding article, unto the said parties mentioned in the eighth article, the said annuity of 136l., which shall accrue and become due from the day whereon the said balance of the said T. Mortimer's debt shall be paid and liquidated under the terms of this agreement. Eleventh-In paying the balance of whatever may remain of the said tithes, and other things mentioned in the preceding article, unto C. Viner in liquidation of the said debt of 24801. Twelfth :-In paying to the parties mentioned in the eighth article, the arrears of the said annuity of 136, which shall accrue due between the date of this agreement and the day whereon the said debt of T. Mortimer shall be paid and satisfied, and then unto the said C. Dodsley, his executors, &c., or as he or they shall direct. And it is hereby lastly agreed, and the said C. Dodsley doth declare, order, and direct, that all the said several payments shall be made in the order in which they are herein set forth, and not rateably. (Signed and sealed)-J. CRAFTS, C. DODSLEY.” Averments:-That the indenture of lease in the indenture above set forth first mentioned, is the indenture in the declaration mentioned; and that it was made and executed first before and as part of the same transaction with the indenture herein set forth; and that J. Crafts, in the indentures respectively mentioned, is the defendant in this suit; and that C. Viner and T. Mortimer, above mentioned, are the same persons described by those names in the indenture above set forth; and that, at the time of the making of the lease and indenture above set forth, the defendant was and from thence hitherto hath been and still is, as C. Dodsley well knew and intended, the attorney and agent of C. Viner; and that the indenture above set forth was made by C. Dodsley to and with the defendant as such agent

and attorney, and to enable him to apply the rent reserved, as in the declaration mentioned, in the manner set forth and stated in the indenture hereinbefore set forth; that the lease, so recited in the articles of agreement hereinbefore set forth, is the same with and not other than or different from the deed of demise in the declaration mentioned; and that the rent, the application whereof is required, ordered, and directed in and by the indenture herein before set forth, is the same with and not other than or different from the rent in the declaration mentioned to have been reserved; that, before and at the time of the issuing of the sequestration, and of the publication thereof, and also at the time of the commencement of this suit, there were and still are due from C. Dodsley to C. Viner and T. Mortimer respectively, divers monies, exceeding the monies and damages in the declaration mentioned, and also all rent that ever became due or payable upon or by reason of the indenture in the declaration mentioned, to wit, monies to the amount of 5000l. in respect of the debts so due and owing from C. Dodsley, and for the security and payment whereof the indenture in the declaration mentioned, and also the indenture above set forth, were entered into and made; and that the defendant, before the commencement of this suit, retained, paid, and applied the monies in the declaration alleged to have become due for the rent therein mentioned, in all respects according to the provisions of the indenture above set forth, in making the payments therein authorised and directed.-Verification.

Eighth plea.—That, whilst C. Dodsley was such rector, and before the plaintiff became such sequestrator, and before the making of the demise in the declaration mentioned, C. Dodsley was indebted to C. Viner and T. Mortimer, and also to divers persons in the indenture in the seventh plea set forth mentioned, in divers large sums of money, to wit, 5000l. respectively; and, being so indebted, C. Dodsley, in consideration of a further sum, to wit, 5000l., to be

1851.

WALTHEW

V.

CRAFTS.

1851.

WALTHEW

V.

CRAFTS.

paid, advanced, and lent, and then paid, advanced, and lent to him by C. Viner, and of the defendant then consenting to become and be the agent of and for the benefit of C. Viner as hereinafter mentioned, did, after the making of and contrary to the form of the statute 13 Eliz. c. 20, being an Act touching leases of benefices and other ecclesiastical livings with cure, to wit, on &c., agree with the defendant and C. Viner, that he, C. Dodsley, should charge the ecclesiastical benefice of the rectory of Swinnerton, the same being a benefice with cure of souls, and within the meaning of the said statute, with the payment of the last-mentioned sum and of certain other sums, to wit, the sums specified in the indenture in the seventh plea set forth, by making to the defendant, as the agent and for the benefit of C. Viner, the indenture of lease of the premises in the declaration mentioned, for the term and at the rent therein mentioned, and by appointing the defendant the receiver of the tithes, rents, issues, and profits, and all commodities and emoluments whatsoever (except Easter dues and offerings, surplice and burial fees) of or belonging to the said rectory, by the indenture secondly hereinafter set forth, and by executing the indenture in the seventh plea set forth, for the purpose of authorising and enabling the defendant to retain and apply, and in order that he should retain and apply, the rent reserved by the indenture in the declaration mentioned, and all profits and proceeds of the matters and things thereby demised, in payment of the monies which were so due and owing to C. Viner and T. Mortimer respectively, and so to be charged upon the said benefice, and of the said other monies so also to be charged upon the said benefice, and not otherwise; and that the last-mentioned sum of money was then advanced to C. Dodsley by C. Viner; and that C. Dodsley did then, in pursuance of his said agreement, and not otherwise, and in order to charge his said benefice with payment of the said monies within the mean

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