far warrants of attorney that were given by beneficed clergymen, and which were to be carried into execution by sequestrations, under which the profits of the livings were to be taken, did or did not come within the purview of the 13th Elizabeth, which prevented the charging of livings. Now, in this case, the facts are these: Mr. Gathercole being, in the month of August 1845, the owner of the advowson of Chatteris, and being a clergyman, and, as it would seem, about to present himself to the living, mortgaged the advowson, to the Plaintiff, for the sum of 24,500l. He, very shortly afterwards, presented himself to the living. It does not distinctly appear whether the mortgage, in terms, included the profits of the living or not; but if it did, it is a matter of no importance, because he had not the profits to give, and, therefore, it was merely a mortgage of the advowson. And, by way of further security for the payment of the debt, he did that which I think, upon all the authorities, it was perfectly competent for him to do without bringing himself within the purview of the statute of Elizabeth. He gave a warrant of attorney to confess a judgment for the same amount: upon which warrant of attorney judgment was duly entered up, I think, in the month of September 1845. That judgment was registered, and the registration has been renewed, in order to keep the judgment alive. What right then did the judgment-creditor acquire by that? In point of fact, what he has done is this. The interest being greatly in arrear, and the judgment having been so entered up, he has issued a writ of sequestration for 2001., the amount of the arrears of interest. Whether, under that sequestration, he could take more than the interest; whether, under the circumstances that have happened, the judg 1850. HAWKINS V. GATHERCOLE. 1850. HAWKINS v. GATHERCOLE. ment would have warranted the sequestration for the principal as well as the interest, is a matter that I have not now to deal with at all. That is a question that might arise between Mr. Hawkins, the present Plaintiff, and the subsequent incumbrancers, in a Court of law. What Mr. Hawkins says is this: "Independent of my sequestration, I have, really and as the foundation of the sequestration, obtained a valid judgment against my debtor, Mr. Gathercole: what is the effect of that judgment?" That he says is pointed out, perfectly clearly, by the 13th section of the 1 & 2 Vict. c. 110; which enacts that judgments to be hereafter entered up against any person in any of her Majesty's superior Courts at Westminster, shall operate as a charge upon all lands, tenements, rectories, advowsons, tithes, rents, and hereditaments (including lands and hereditaments of copyhold or customary tenure), of or to which such person shall, at the time of entering up such judgment, or at any time afterwards, be seised, possessed, or entitled, for any estate or interest whatever, at law or in equity, whether in possession, reversion, remainder, or expectancy, or over which such person shall, at the time of entering up such judgment or at any time afterwards, have any disposing power which he might, without the assent of any other person, exercise for his own benefit, and shall be binding as against the person against whom judgment shall be so entered up, and against all persons claiming under him after such judgment; and shall also be binding, as against the issue of his body and all other persons whom he might, without the assent of any other person, cut off and debar from any remainder, reversion, or other interest in or out of any of the said lands, tenements, rectories, advowsons, tithes, rents, and hereditaments; and that every judgment-creditor shall have such and the same remedies, in a Court of equity, against the hereditaments so charged by virtue of this Act, or any part thereof, as he would be entitled to in case the person against whom such judgment shall have been so entered up, had power to charge the same, and had, by writing under his hand, agreed to charge the same with the amount of such judgment-debt and interest thereon. Now what the plaintiff says is:-" The effect, therefore, of my judgment, was this; that I had, as against the profits of this living, the same right as I should have had if Mr. Gathercole had had power to charge the living, and had actually charged it; and, having that right, I seek to make it available in the only way in which it can be made available, namely, by getting what, perhaps, is properly enough called an equitable execution, that is, by getting a receiver appointed in order that my charge on that living may, by means of the receiver, be made available." I presume there would be no question as to the right to file such a bill and to have such relief, if, instead of a living, we were dealing with ordinary property. That will not be disputed. But, here, the point, and the sole point to which the matter, at last, is reduced is this. Prior to this statute, it is said, it was made unlawful, by the statute of Elizabeth, (which was repealed for a certain time, and then revived by the 57 Geo. III. c. 99,) for the owner of a living to charge it; and that it could not have been within the contemplation of this statute to authorize a party who was incompetent, before the statute passed, to charge his living, to charge that which, previously he was incompetent to charge; because, it was said, it was quite out of the scope of the statute. I entirely accede to that argument, if the meaning of it is that it did not authorize him to charge it in the ordinary sense of creating a charge by deed or contract; but I do not accede to it, at all, if it is meant to be contended that he can 1850. HAWKINS v. GATHERCOLE. 1850. HAWKINS V. not charge it, or rather, that the law will not charge it for him, when that is done which the law says shall give, to the party, the effect of a charge. What right GATHERCOLE. have I to speculate on what the Legislature meant, when it is as clear as words can make it? But if I did speculate, I should not, in the least, doubt (whether this particular case was within the contemplation of the Legislature I know not,) that the object was to make all property that, by any process of execution could be made available to satisfy creditors, available to them by creating a charge upon it, the benefit of which they were to obtain in the ordinary way in which property charged can be made available. That is the short point, and, that being so, I have not a word more to say than that I think the Plaintiff is entitled to a receiver. Order that it be referred, to the Master, to appoint some proper person to receive, collect and get in the corn-rents, rents in lieu of tithes, and all other rents, of what kind soever, offerings, fruits, oblations, obventions, pensions, and all other the commodities and emoluments, hereditaments and premises belonging or appertaining to the vicarage of Chatteris Nuns, in the county of Cambridge in the pleadings mentioned; and to allow him a proper salary for his care and pains therein: such person so to be appointed receiver, first giving security, &c., &c.; and the persons respectively liable to make payments in respect of the matters aforesaid, are to make such payments to such receiver: And it is ordered that the receiver do provide for the service of the church of the said parish, and make and pay a proper allowance and remuneration to the persons serving the same; and the said receiver is to be allowed what he shall so pay in passing his accounts before the said Master: And it is ordered that such receiver do, from time to time, pass his accounts before the said Master, and pay the balances which shall be reported due from him (after paying such allowance and remuneration for the service of the said church as aforesaid) into the bank with the privity of the Accountant-General, &c., &c.: And it is ordered that an injunction be awarded to restrain the Defendant, the Bishop of Ely, from executing the several writs of sequestrari facias in the pleadings mentioned and issued, against the vicarage and parish church aforesaid, by the said Defendants (the Defendants whose judgments were subsequent to the Plaintiff's): And it is ordered that an injunction be awarded to restrain those Defendants from procuring to be executed, or otherwise proceeding with the writs of sequestrari facias issued on their several judgments in the pleadings mentioned; and from further prosecuting, or from taking or permitting to be taken any proceeding upon the said judgments against the said vicarage and parish church, and from receiving the rents, tithes, and rent-charges of the said vicarage, or any part thereof, until the hearing of this Cause, or the further order of this Court. 1850. HAWKINS v. GATHERCOLE. |