shareholders with the company, on the 14th October 1845, expressly empowered the provisional directors to purchase, out of the deposits, all or any of the shares in the Mansfield and Pinxton Railway, at such prices as they should be able: that there were no liabilities existing against the company or any member thereof, in respect of any debt due or alleged to be due by the company: that not a shilling of the assets of the company was left, and none of the directors had any money belonging to the company in their hands, nor was any standing to the credit of the company at its late bankers': that, previous to the distribution of the Midland stock, a circular was drawn up by the said railway (sic) and forwarded to all the shareholders thereof, requesting them to send to the secretary of the railway for forms of application, as shewn in the petition; and that the Petitioner, in conjunction with 63,449 out of the whole 64,000 shareholders, sent in his application concurring in the dissolution of the company: that the holders of 56,271 shares had received the £1, 10s. per share, and the final dividend of 1s. 6d. per share in discharge of their deposits, and had consented to the winding up of the undertaking; and the deponent believed that by far the majority of the remaining outstanding shares were lost or destroyed.

[61] Mr. Bethell and Mr. Wright (Mr. Terrell was with them), in support of the petition, said that the Petitioner was one of the contributories, and that, as such, he was entitled to the usual order for winding up the affairs of the company.

Mr. Selwyn (Mr. Rolt was with him), for the late chairman of the company, submitted that there was no ground for putting the contributories to the expense which would be incurred by winding up the affairs of the company; and that, before the matters complained of by the petition would be investigated, the Master would have to settle a long list of contributories, not one of whom, except the Petitioner, sought to disturb the existing arrangement: and he cited Ex parte Pocock (1 De Gex & Smale, 731), Ex parte Murrell (3 De Gex & Smale, 4), and a case recently decided by Vice-Chancellor Knight Bruce, In the Matter of the London, Newbury and Bath Railway Company (the Law Times for 16th November 1850). He added that the Petitioner might bring an action, or file a bill against the directors, if he thought fit so to do: that, with the exception of the small sum of £112, 10s., the whole amount of his deposits had been returned to him: that no assets of the company remained to be got in and that no one was suing or could sue the Petitioner as a member of the company; for all the debts and liabilities of the company had been discharged.

Mr. Bethell, in his reply, said that, in Ex parte Pocock, a very large majority of the shareholders had released the directors.

Nov. 18. THE VICE-CHANCELLOR [Lord Cranworth], after having perused the affida-[62]-vits in support of and in opposition to the petition, said that there were three courses for the Court to adopt: either to dismiss the petition; to make an order according to the prayer of it; or to direct a preliminary inquiry to be made by the Master, as the late Vice-Chancellor of England had done: that he thought that, under the circumstance of this case, the last course ought to be adopted; and, therefore, he should direct the Master to inquire and state whether it was necessary or expedient that the company should be dissolved and wound up, or be wound up: and that he should reserve the question of costs, and give liberty to apply.(1)

(1) The above petition had been heard by the late Vice-Chancellor of England, who made a similar order upon it on the 26th of March 1850. Two days afterwards, the registrar's office was closed for the Easter Vacation, and was not re-opened until the 8th of April. On the 13th of that month the Petitioner left his brief in the office for the purpose of the order being drawn up; but it was then too late for him to advertise the order, as the 15th section of the Winding-up Act of 1848 requires, in the London Gazette, within twelve days after the date of it; and, for that reason, he procured the petition to be reheard.

[63] HAWKINS v. GATHERCOLE. Nov. 21, 1850.

[S. C. 1 Sim. (N.S.) 151; reversed on appeal, 6 De G. M. & G. 1; 43 E. R. 1129. In addition to cases in note, 43 E. R. 1129, see on point as to tithes, In re Poland, 1866, L. R. 1 Ch. 358; and as to construction of Acts of Parliament, Bewley v. Carter, 1869, L. R. 4 Ch. 242; Baird v. Mayor, &c., of Tunbridge Wells [1894], 2 Q. B. 880; [1896], A. C. 434.]

Debtor and Creditor. Judgment Debt. Beneficed Clergyman.

Statute of 1 & 2 Vict. c. 110, s. 13. Receiver.

A judgment entered up in 1845, against a beneficed clergyman, for a debt, was duly registered. Held that, under the 1 & 2 Vict. c. 110, s. 13, it was a charge upon his benefice, and that the creditor was entitled to have a receiver of the profits of the benefice appointed.

By an indenture, dated the 8th of August 1845, the Defendant, M. A. Gathercole, clerk, made a mortgage in fee to the Plaintiff, for securing the repayment of £24,500 on the 8th of August 1852, with interest in the meantime at £4 per cent. That mortgage purported to comprise the advowson of the Vicarage of Chatteris Nuns in the Isle of Ely, together with the parsonage-house and outhouses thereto belonging, and all other houses, outhouses, edifices, buildings, glebe lands, allotments of land in lieu of glebe lands, meadows, commons, tithes of what kind soever, corn rents, rents in lieu of tithes, and all other rents of what kind soever, offerings, fruits, oblations, obventions, pensions, portions, and all other commodities, emoluments, hereditaments and appurtenances, whatsoever, to the advowson belonging, or in anywise appertaining: and it contained a power enabling or purporting to enable the Plaintiff to sell the premises in case default should be made in payment of the £24,500 or the interest thereof, and also a covenant by the Defendant, M. A. Gathercole, with the Plaintiff, for the payment of the principal and interest: and, for further securing such payment, Gathercole executed a warrant of attorney on which a judgment for £49,000 was entered up against him and was registered on the 5th of September 1845, and afterwards re-registered. (1)

At the date of the mortgage deed Gathercole was [64] not the incumbent of the vicarage, but he became so shortly afterwards.

In September 1849 the interest on the mortgage debt being in arrear, the Plaintiff issued a fi. fa. to the Sheriff of Cambridgeshire for the recovery of the arrear; but the sheriff was unable to levy the whole of it. In consequence of which the Plaintiff, in November following, issued a writ of sequestration to the Bishop of Ely, commanding the bishop to sequester the vicarage until he should have levied the whole of the sum for which the judgment had been entered up (except what the sheriff had levied), out of the rents, tithes, oblations, obventions, fruits, issues and profits, and other ecclesiastical goods of Gathercole in the bishop's diocese.

The bill was filed against Gathercole, the Bishop of Ely and certain judgment creditors of Gathercole, whose judgments were subsequent to the Plaintiff's, and who had issued sequestrations thereon against the vicarage. It prayed, amongst other things, for a declaration that the Plaintiff was entitled to be paid his mortgage debt and interest in priority to the judgments of the other judgment creditors, and that his judgment became and was a charge upon the before-mentioned vicarage, advowson, tithes, rents, hereditaments and premises against them; that the bishop might be restrained from executing the sequestrations issued by the other Defendants, and that those Defendants might be restrained from procuring their sequestrations to be executed; and that a receiver of the rents, tithes and rent-charges belonging to the vicarage might be appointed.

A motion was now made for the receiver and injunction as prayed for by the bill. In the course of the [65] argument the first section of 13th Eliz. c. 20, and the 13th

(1) See 1 & 2 Vict. c. 110, s. 19, and 2 & 3 Vict. c. 11, ss. 2 and 4.

section of 1 & 2 Vict. c. 110, were referred to. The first section of the 13th Eliz. c. 20, is as follows:-"That the livings appointed for ecclesiastical ministers may not, by corrupt and indirect dealings, be transferred to other uses; be it enacted, by the authority of this present Parliament, that no lease, after the 15th day of May next following the beginning of this Parliament, to be made of any benefice or ecclesiastical promotion with cure, or any part thereof, and not being impropriated, shall endure any longer than while the lessor shall be ordinarily resident and serving the cure of such benefice, without absence above fourscore days in any one year, but that every such lease, so soon as it or any part thereof shall come to any possession or use above forbidden, or immediately upon such absence, shall cease and be void, and the incumbent so offending shall, for the same, lose one year's profit of the said benefice, to be distributed by the Ordinary among the poor of the parish; and that all chargings of such benefices with cure, hereafter, with any pension or with any profit out of the same to be yielded or taken, hereafter to be made, other than rents to be reserved upon leases hereafter to be made according to the meaning of this Act, shall be utterly void."

The 13th section of 1 & 2 Viet. c. 110, is as follows::- "And be it enacted that a judgment already entered up or 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 [66] 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 hereditaments, and had, by writing under his hand, agreed to charge the same with the amount of such judgment debt and interest thereon: Provided that no judgment creditor shall be entitled to proceed in equity to obtain the benefit of such charge, until after the expiration of one year from the time of entering up such judgment, or in cases of judgments already entered up, or to be entered up before the time appointed for the commencement of this Act, until after the expiration of one year from the time appointed for the commencement of this Act; nor shall such charge operate to give the judgment creditor any preference in case of the bankruptcy of the person against whom judgment shall have been entered up, unless such judgment shall have been entered up one year at least [67] before the bankruptcy: Provided also, that, as regards purchasers, mortgagees or creditors, who shall have become such before the time appointed for the commencement of this Act, such judgment shall not affect lands, tenements or hereditaments, otherwise than as the same would have been affected by such judgment if this Act had not passed: Provided, also, that nothing herein contained shall be deemed or taken to alter or affect any doctrine of Courts of Equity whereby protection is given to purchasers for valuable consideration without notice.'

Mr. Bethell, Mr. Badeley and Mr. Sidney Smith, in support of the motion, said that the warrant of attorney did not purport, on the face of it, to have been executed by Gathercole for the purpose of creating a charge upon his living; and, therefore, it did not come within the purview of the 13 Eliz. c. 20, but was perfectly valid: that it was given to secure a debt; and the profits of ecclesiastical benefices were, at all times, liable to be sequestered on behalf of the creditors of the incumbents, and applied in satisfaction of their debts: that the 13th section of 1 & 2 Vict. c. 110,

made the judgment a charge, in equity, on the Defendant's living; for that section contained the words "rectories and tithes ;" and therefore it was manifest that the Legislature intended to place judgments against ecclesiastical persons on the same footing as judgments against laymen, and to make them charges on ecclesiastical as well as on lay property; and, that being so, the Plaintiff was entitled to have a receiver of the profits of the Defendant's vicarage appointed, in order that the charge might be made available to the payment of his judgment debt.

The following authorities were cited by the counsel in [68] support of the motion; Mouys v. Leake (8 T. R. 411), Flight v. Salter (1 Barn. & Adol. 673), Kirlew v. Butts (2 Barn. & Adol. 736, note), Faircloth v. Gurney (2 Moo. & Scott, 822; and 9 Bing. 622), Colebrook v. Layton (4 Barn. & Adol. 578), Moore v. Ramsden (3 Barn. & Adol. 917), Saltmarshe v. Hewett (3 Nev. & Mann. 656; and 1 Adol. & Ell. 812), White v. The Bishop of Peterborough (3 Swans. 109), Bendry v. Price (7 Dowl. 753), Britten v. Wait (3 Barn. & Adol. 915), Gibbons v. Hooper (2 Barn. & Adol. 734), Aberdeen v. Newland (4 Sim. 281), Errington v. Howard (Amb. 485), Cuddington v. Withy (2 Swans. 174), Metcalfe v. The Archbishop of York (1 Myl. & Cr. 547), Tong v. Robinson (1 Bro. P. C. 114), Sloane v. Packman (11 Mees. & Wels. 770), King v. King (3 P. W. 358), Burrowes v. Molloy (2 Jones & Lat. 521), Whitworth v. Gaugain (1 Phill. 728); Roger's Eccles. Law, title Incumbent; and Seton on Decrees, 328.

Mr. Speed appeared for the Bishop of Ely.

Mr. Malins, Mr. Smythies, Mr. W. T. S. Daniel, Mr. Roxburgh, Mr. Amphlett and Mr. Sheffield appeared for the other Defendants. They said that they did not dispute the validity of the warrant of attorney; and that the only question was whether the 13th sect. of 1 & 2 Vict. c. 110, had (as the Plaintiff's counsel had in effect contended), repealed by implication the Act of Elizabeth: that it was true that the 13th sect. of 1 & 2 Vict. did contain the words "rectories and tithes ; [69] but rectories and tithes were frequently held by laymen; and it did not contain the words "benefices with cure of souls ;" and, therefore, there was no ground for saying that it repealed, by implication, the Act of Elizabeth: moreover, that a subsequent sect. of the Act of Vict. (the 55th), provided that, where a beneficed clergyman was an insolvent debtor, nothing in the Act should cause his benefice to vest in his assignee: and that the general affirmative words of an Act of Parliament could not repeal, by implication, another Act directly prohibiting a particular Act or making a particular Act void: besides, that the 13th sect. of the Act of Vict. enacted that a judgment creditor should have such and the same remedies in a Court of Equity, against the hereditaments charged by virtue of the Act, as he would be entitled to in case the person against whom the judgment had been entered up had power to charge the same hereditaments, and had, by writing under his band, agreed to charge the same with the amount of the judgment debt: but, by the Act of Elizabeth, a clergyman had no power to charge his benefice; and, therefore, it was quite clear that a judgment against him was not made a charge on his benefice that the cases in which the Court had granted a receiver of a benefice with cure of souls were decided between the years 1803 and 1817, when the Act of Elizabeth was not in force: Shaw v. Pritchard (10 Barn. & Cress. 241), Alchin v. Hopkins (1 Bing. N. C. 99; and 4 Moo. & Scott, 615), Cottle v. Warrington (5 Barn. & Adol. 447): that, unless the Plaintiff's judgment was a charge on the benefice, he had no right to apply for a receiver, and, even if it was a charge, he had no such right; for his judgment was prior to the judgments of all the other judgment [70] creditors, and he, by means of his sequestration, was in possession of the profits of the benefice.

The other cases cited were Kay v. Marshall (1 Myl. & Cr. 373), Cuddington v. Withy, Barnsley Canal Company v. Twibell (7 Beav. 19), Arbuckle v. Cowtan (3 Bos. & Pul. 321), Flarty v. Odlum (3 T. R. 681).

Mr. Bethell, in his reply, said that the Act of 1 & 2 Vict. was made, as appeared by its title, for extending the remedies of creditors against the property of debtors; and that the 13th section of it gave the judgment creditor of a beneficed clergyman the same remedies in equity against his debtor's benefice, as he would have had if the debtor had had power to charge his benefice, and had, by writing under his hand, agreed to charge the same with the amount of the judgment debt.

THE VICE-CHANCELLOR [Lord Cranworth]. This matter lies within a very narrow

compass, and appears to me to be pretty well free from any doubt at all. In the outset of the argument I did not exactly understand the facts, which are somewhat complicated; nor did I precisely see the point that was to be made. I believe that neither the counsel nor the Court distinctly understood what, on the one hand, was about to be relied on, or what the resistance was to be on the other; because I am sure that I am not wrong when I say that nine-tenths of the argument which has been addressed to the Court has consisted of an elaborate canvassing of a variety of cases which, running very fine and close to each other, have raised this question: how [71] 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 £24,500. 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 £200, 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-[72]-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 [73] 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