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No. XXXIX.--ANNUITIES CHARGED ON A BENEFICE.
COLEBROOK AND OTHERS v. LAYTON. A RULE was obtained, calling upon deponent's respective benefices with the plaintiffs to show cause why the the payment thereof in manner therejudgment in this case, which was upon inafter mentioned.” The affidavit a warrant of attorney, should not be then set out an indenture, dated the set aside. The rule was grounded 3d of September, 1824, to which there upon an affidavit of the defendant, were several parties, and whereby, in stating that he was the vicar of the consideration of the sum of 20001. vicarage and parish Church of Chig- paid by the plaintiffs to the defendant, well in Essex, and curate of the per- the latter granted to the plaintiffs an petual curacy of Theydon Bois in that annuity of 2371. 28., to be yearly issucounty; that the plaintiffs were “ the ing and payable hy, and from, and out trustees of the estate and property of of, and charged and chargeable upon the United Empire and Continental the said several benefices, and the Life Association;" that at the time of glebe lands, messuages, tithes, tenethe agreement for the purchase of the ments, oblations, obventions, profits, annuity thereinafter mentioned, it was and emoluments thereof; such annuity expressly agreed, that the same should to be paid quarterly. The deed conbe charged and chargeable upon the tained the usual covenant for payment above mentioned ecclesiastical bene- of the annuity; a power of distress if fices, which were to be demised to a the same were in arrear twenty-one trustee for a certain term of years; days; or if in arrear thirty days, a and that payment of the annuity should power to enter upon and take and be further secured by a bond and receive the rents and profits of the warrant of attorney of the defendant, respective livings, and satisfy the anwith a judgment to be entered up nuity; and it contained a demise by thereon, “ for the purpose of charging the defendant of the same benefices to
A Clergyman purchasing an annuity, agreed that it should be charged on his benefice, and the payment secured by a bond and warrant of attorney, with a judgment to be entered up thereon, for the purpose of charging the benefice. By the deed of grant the annuity was made payable on certain days and chargeable on the benefice, with a power of distress, &c. : it also contained a demise of the benefice to a trustee, with a power in default of payment to receive the tithes, rents and profits, &c. It was thereby also declared, that the bond and warrant of attorney (referred to in the deed as baving been already prepared, and meant to bear even date with, and to be executed and given at the same time as the deed,) and the judgment to be entered up thereon, should be further securities for the annuity; and that immediately after such judgment the creditors might sue out execution, and do such other acts as might be necessary for obtaining a sequestration : and that as often as the annuity should be in arrear, they might put in force such writ of sequestration. The condition of the bond, (after reciting the agreement for purchase of the annuity, and for securing the same by such bond, warrant of attorney, and judgment, reciting also the deed of grant,) was declared to be for the due payment of the annuity on certain days. The warrant of attorney gave authority to receive a declaration at the suit of the plaintiffs, in an action of debt on a bond, describing it as a bond of even date with the warrant of attorney, executed by the grantor of the annuity, and given to the grantees, and to suffer judgment. The defeazance recited, that it was given to secure the payment of an annuity of the amount mentioned in the bond, payable on the same days as in the condition of the bond was expressed.
On a motion to set aside the judgment on this warrant of attorney, on the ground that it was a charge on the benefice: held, that this did not sufficiently appear, the reference in the warrant of attorney to the bond amounting to no more than a description of the bond, its date, the parties to it, and the time at which the annuity was to be paid, and not incorporating the terms of the deed of grant (recited in the bond) with the warrant of attorney, so as to make the latter operate as a charge on the benefice; and this being an application to set aside a judgment for irregularity, the rule was discharged with costs,
one Christopher Godmond (a trustee condition thereof (after reciting the on behalf of the plaintiffs) to hold to contract for the purchase of the anhim for ninety-nine years (if the de- nuity, and that it had been agreed that fendant should so long live), upon the same was to be secured by such trust, until default of payment of the bond and warrant of attorney and the annuity, to permit and suffer the judgment to be entered up thereon, defendant to take the tithes, oblations, and reciting the deed of grant) was and obventions, rents and profits declared to be for the due payment of thereof; and after default, then upon the annuity during its continuance by trust to take and receive the same to even quarterly payments on certain himself, the said Christopher God- specified days, and for paying in a mond; and thereout, or by demising, certain event 2000l. for the repurchase selling, leasing, or mortgaging the thereof. The warrant of attorney same, to raise sufficient to satisfy the authorized the parties named to apsaid annuity and such parts thereof as pear for the defendant, and to receive should from time to time become due; a declaration at the suit of the plainand there was a power to redeem the tiffs in an action of debt on a bond annuity at a sum agreed upon. The (describing it as a bond of even date deed further contained an agreement with the warrant of attorney, under or declaration between the plaintiffs the hand and seal of the defendant, and defendant, that the bond and and given to the plaintiffs) and tó warrant of attorney (referred to in the suffer judgment in such action in the said deed as having been already pre- usual manner. The defeazance to this pared, and intended to bear an even warrant of attorney recited that it was date with and to be executed and given to secure the payment of one given at the same time as the deed annuity of 2371. 2s., during the life of and the judgment to be entered up on the defendant, by even quarterly paythe warrant of attorney) should be ments, on the 3d of March, the 3d of further securities for the payment of June, the 3d of September, and the the annuity; and that immediately 3d of December, the first payment to after judgment should be so entered be made on the 3d day of December up, the plaintiffs might sue out and next, “ as in and by the condition to. prosecute such execution or executions the bond or obligation referred to by Ly virtue of the said judgment, and do the said warrant of attorney is more all such other acts, as might be neces- particularly expressed in that behalf;" sary for obtaining a sequestration or and it authorized the plaintiffs wben sequestrations of the said vicarage and and as often as the annuity or any curacy; and that as often as the part thereof should be in arrear fór amuity should be in arrear, they the space of twenty-one days after the might proceed under such sequestra- days appointed for payment thereof, to tion and sue out execution upon or by sue out such execution or executions virtue of the said judgment by fieri upon or by virtue of the said judgmert facias de bonis ecclesiasticis, or de bonis by one or more writ or writs of fieri proprüs, or any other writ whatsoever, fácias de bonis ecclesiasticis, or de bonis or take such other proceeding thereon propriis, or both, or any writ or writs, as they should think fit.
or to take and adopt such other proThe affidavit further stated that the ceedings, as they should think fit, for bond was in fact executed and the the recovery of the annuity and all warrant of attorney given at the same costs. time, and bore even date, with the Sir James Scarlett and F. Pollock aforesaid grant; and that the warrant showed cause in the present term. of attorney was given for the express There is no ground for setting aside purpose of charging the said vicarage this judgment. The validity of it deand curacy with the payment of the pends solely on the warrant of attorney; annuity, and for the purpose of en- and as there is nothing on the face of abling the plaintiffs to sue out the that instrument to show it was given before-mentioned executions. The with intent to charge, and that it does bond was in the usual form. The charge, the benefices, contrary to the
13th Eliz. c. 20, it is quite unobjec- together one assurance. If the recitals tionable, although the consequence of and powers contained in the deed were any execution which may issue upon expressly contained in the warrant of the judgment founded on it may be to attorney, it could not be disputed that affect the profits of the living. The the latter would be bad; but those want of any objection apparent upon statements are virtually and sufficithe face of the warrant of attorney ently incorporated with the warrant of clearly distinguishes this case from attorney. It expressly refers to the Flight v. Salter, and brings it within bond, which it minutely describes, the principle recognised in the cases and the defeazance refers to it, for it of Gibbons v. Hooper, and Wynne v. is there stated that the warrant of Robinson, and further sanctioned by attorney is given as a security for the judgment of this court in Moore v. payment of the annuity in the manner Ramsden.
more expressly pointed out by the Follett, contra. It is not intended condition of the bond. The bond too to question the correctness of the de- as distinctly refers not only to the cision in Gibbons v. Hooper, and the deed of grant, but to the agreement class of cases which have followed it. previously made, and the stipulation This is clearly distinguishable. The fair relative to the several securities. The result of all the authorities is this : warrant of attorney so expressly refers where the court is satisfied that the to the bond, and the bond to the deed, warrant of attorney was given with an as to make it clear that the warrant intent that it should operate as a of attorney was given with intent to charge upon the benefice, there the charge the benefices; and, if so, it is judgment founded upon it cannot be void. The ground on which the court, supported: but where nothing appears in Flight v. Salter, set aside the judgnecessarily leading to the conclusion ment, was, that the party giving the that it was given with such intent, the warrant of attorney had attempted to judgment is free from objection, though do indirectly what the law would not the consequence may happen to be permit him to do directly; and that is that the profit of the living will pro- equally applicable here, unless it is to bably be taken in execution. If this be held indispensable that the intention is the correct rule, and is to be applied of the parties to charge the living by to the present case, the judgment must the warrant of attorney should be be set aside. In the first place, it is expressed in so many words therein. sworn by the defendant (and is not Gibbons v. Hooper cannot be said to denied) that the warrant of attorney govern the present case. There the was given for the express purpose of warrant of attorney did not refer to charging the defendant's vicarage and the deeds, and there was nothing curacy, and of enabling the plaintiffs necessarily connecting the deeds with to sue out the executions mentioned in the transaction in respect of which the grant, obviously meaning the ob- the warrant of attorney was given. taining sequestration inmediately upon LITTLEDALE, J. I am of opinion the execution of the deed. [Litiledale, that the rule must be discharged. In J. Can we take this from the attidavit? Flight v. Salter, it was expressly reWe must look to the language of the cited in the warrant of attorney, that warrant of attorney ascertain it was given to secure the annuity whether it is or is not a charge upon which was to be charged on the living. the living.] The affidavits unanswered Here the warrant of attorney does not are sufficient evidence of the intent of refer to the deed of grant. It is in the the parties. At all events, the court common form which would be adopted is not to look to the warrant of attor- for providing payment of an annuity ney alone. Here the deed of grant, securedi by bond, but not charged, or the bond, and the warrant of attorney, intended to be charged, upon any all bear even date, were executed and living. It is true there is some incigiven at one and the same time, and dental mention of the bond in the all in pursuance of a previous agree- warrant of attorney. The warrant ment to that effect. They constitute itself, instead of simply stating a
declaration in an action of debt on bond, charge is actually made, is not suffidescribes that bond by mentioning the cient. In Flight v. Salter the warrant date, and showing it to have been of attorney did operate as a charge on given by the defendant to the plaintiffs; the benefice. There the warrant of and the defeazance notices it by stating attorney recited the deed and made it that the warrant of attorney is given part of the warrant of attorney. The to secure the payment of a certain provisions of the deed in substance annuity on given days, and that the were, that Flight was to be at liberty first payment is to be made on the forth with to obtain a sequestration, 3d of December then next ensuing, though no default might have taken " as in and by the condition to the place in the payment of the annuity; bond or obligation referred to by the and this sequestration was to be a warrant of attorney is more particu- continuing sequestration during the larly expressed in that behalf.” But continuance of the annuity even though this reference to the bond in the it should be regularly paid. After warrant of attorney amounts to no reciting this, the defeazance to the more than a mention of that instru- warrant of attorney expressly'alleged, ment by way of identifying it as the that that warrant was given, and bond on which the action is to be judgment was to be entered up thereon, brought; and the mention of it in the to the intent that a sequestration might defeazance to no more than a precise be obtained and continued, pursuant and distinct reference to the times for, to the agreement before mentioned. and the commencement of, the quar- The present case is widely different. terly payments. This does not bring There is no reference at all in the the case within the authority of Flight warrant of attorney to the deed of 1. Salter. The stipulation in the de- grant, and the reference to the bond is feazance, that a fieri facias de bonis no more than a description of the ecclesiasticis may be taken out for the bond, its date, and the parties to it, arrears of the annuity, is wholly imma- and of the times at which the annuity terial. If any execution in consequence is to be paid. Such a reference does of arrears could have issued, that writ not, because the bond itself also refers might have been resorted to as well as to the deed, so incorporate the deed any other, without any express stipu- with the warrant of attorney as to lation; and the permission given to give rise to the objection which the make use of it was quite unnecessary. court relied upon in Flight v. Salter.
TAUNTON, J. I am of the same opi- There, when the terms of the warrant nion. It is sufficient to say that I of attorney were acted upon, the think this case governed by. Gibbons v. plaintiff did charge the living, for he Hooper, and the decisions which have made the sequestration a continuing followed it; but even without those security for the growing payments of authorities, I should have thought this the annuity. In this case the warrant warrant of attorney was not void under of attcrney would authorize no such the 13 Eliz. c. 20, the primary object proceeding. The power to sue out a of which was to avoid leases made by writ of fieri facias de bonis ecclesiasticis, persons not residing upon and serving does not alter the case; no execution their cures: Another of the reasons is to be sued out but when the annuity for passing it is given by Lord Kenyon is in arrear. In such an event that in Mouys v. Leake. But without ad- writ, equally with any other, might verting to what are generally under- have been sued out without any exstood to have been the objects of the press authority provided by the deact, and looking at the language of the feazance. clause on which this application is Patteson, J. I am also of opinion founded, and which declares that all that this rule must be discharged. chargings of such benefices shall be Without going the length of saying void, I think that to bring the case that the object and intent of the parwithin the statute there must be an ties to the warrant of attorney must actual charging; and that the intention necessarily appear upon the defeazance of the parties to charge, where no to it, I am of opinion that it must
appear that their intention of charging viz. that for which the writ of fieri the benefice has in fact been accom- facius de bonis ecclesiasticis issues, and plished ; in other words, that the no further. That sum, in the present benefice is by the warrant of attorney case, could only be the amount of so far actually charged, that the party arrears due. Even, therefore, if by to whom the warrant of attorney is referring to the deed, and gathering given, following the authority which it from that the intention of the parties, confers, would, but for the provisions I should be of opinion that they meant of the statute of Elizabeth, obtain an the warrant of attorney so to operate actual charge on the living. Now, as to create a perpetual charge on the whatever may
have been the intention benefice, it is sutlicient to say they of the parties here, it is quite clear to have not, by the warrant of attorney, my mind that they have not, by this carried that object into effect. The warrant of attorney, charged the living: rule for setting aside the judgment If it were their object, they have failed must therefore be discharged. to do so. The defeazance only gives Sir J. Scarlett applied that it might a power to issue a writ of fieri facias be discharged with costs. de bonis ecclesiasticis in case the an- LITTLEDALE, J. This is an applicanuity is not paid, and then only for tion to set aside a judgment for irrethe arrears.
If, by means of the writ, gularity, the alleged irregularity being those arrears should be obtained, it that the warrant of attorney is void, would have no further operation, and and that, consequently, there is nothing any sequestration founded upon it to support the judgment. Rules to set would be at an end. For though it is aside proceedings for irregularity, if said in the books that a sequestration discharged, are usually discharged with is a continuing writ, by that is meant costs; and we think this case must that it is a continuing execution for follow the general rule. the purpose of levying a given sum, Rule discharged with costs.
BATH PETITION FOR THE RESTORATION OF CONVOCATION.
A SYNOD of the Deanery of Bath Deanery of Bedminster was convened was holden at Weymouth House, by the Archdeacon of Bath, agreeably Bath, on Monday, the 15th ult., by to requisition, for the purpose of adoptthe Archdeacon of Bath, agreeable to ing the same petition. The meeting requisition of the Clergy of that dean- was opened by a selection of prayers ery, to petition his Majesty to revive from the Liturgy. the dormant functions of Convocation. The adoption of the petition, which The Synod was opened with a selec- we give at length below, was moved tion of prayers from the Liturgy. The by the Rev. Israel Lewis, of Long Venerable Archdeacon Moysey then Ashton, and seconded by the Rev. opened the business of the day by Henry Thompson, of Wrington. expressing his long conviction of the The meeting was addressed by those absolute necessity of Convocation. gentlemen, and also by the Rerds.
The Rev. W. D. Willis, rural dean James Phillott, 2. H. Biddulph, of Bath, then moved the adoption of Kitson, and another gentleman, whose the petition, in a specch of great name we did not learn, but who eloargument and eloquence, for which we quently demonstrated, from the posiregret that we have no room.
tion of the American Episcopal was followed by the Rev. MM. Jelly, Church, with which he was well acGunning, and Marriot, and the peti- quainted, the practical advantage of tion was adopted unanimously. Convocations. The petition agreed to
On the 18th ult., a Synod of the by the Deanery of Bath was then