116

OBSERVATIONS ON THE ACTS.

bable that you will accept the invitation which it holds out to you.

You will have collected, from my observations upon the various provisions of the principal Act, that I cannot speak favourably of the measure. A heavy burden, if it should succeed, will be thrown upon the landowners of England, as a class, without a corresponding benefit. My advice to you is, not to entangle yourself in the meshes of the network of the Act, and I can assure you that I practise what I advise. I have not availed myself, nor do I intend to avail myself, of the privileges of the Acts, and yet I am as anxious as you can be to secure an indefeasible title to the properties which I possess. The Act contains 140 clauses, besides an appendix, and 51 rules and orders have been issued for carrying out the Act, with several appendixes, which altogether form a body of law difficult to comprehend, and necessarily complicated, and leading unavoidably to delay, danger, expense, anxiety, and trouble. The scheme, if a good one, is not open to objection upon these grounds, for the elaborate machinery was necessary to guard against rightful claims being barred by registration by the alleged owner under the Act; but this very complication shows that the scheme is not a good one, and will not work well. It is a delusion to suppose that indefeasible titles can be easily obtained by such machinery. Hitherto little damage has been done. Few are the applications under the Act.

In a former Letter I have explained to you my frequent unsuccessful attempts to shorten the time for barring outstanding claims against a bona fide purchaser or mortgagee. After that Letter was written, I introduced the measure into the House of Lords as a separate bill. It went up to the Select Committee of the Lords with the other bills to which I have drawn your

ATTEMPTS TO SHORTEN CLAIMS.

117

attention, and passed the Committee with them, and in their company was sent down to the House of Commons, where it was read a second time; and, as I have already stated in the larger work to which I have before referred, "It was proposed by the Government to be amended to an extent which would have rendered it valueless, and therefore I preferred that it should be allowed to drop. Purchasers consequently remain still liable to the danger of concealed settlements, and abstracts of title still travel over 60 years. It appears to have escaped the observation of the learned persons who opposed the bill as going too far, that they had but a few days previously passed a bill which at once cut up root and branch every claim under a suppressed settlement, and yet in the sales, where that bill would thus operate, there is no purchaser whose interest it is to sift the title thoroughly, so as to lead to the discovery of any suppressed settlement. Under the bill which they passed, a great wrong might be inflicted without a remedy; whilst, under the rejected bill, purchasers would have been duly protected, claimants under suppressed settlements would have been allowed ample opportunity of enforcing their claims, and the daily wanton expenses of long abstracts of title would have been put an end to. But I never felt surprise at a man's straining at a gnat after having swallowed a camel."

118 PURCHASE OF LIVING: ADVOWSON: SEQUESTRATIONS.

LETTER XIII.

As you are anxious to obtain Church preferment for one of your sons, I will state to you how far you may legally buy it. The great object is to steer clear of Simony, which is a corrupt contract for an ecclesiastical benefice. It derives its name from Simon Magus.*

* Let me give you a word of advice, and through you to your son, who is about to enter the Church, free, I know, from college debts. Take care to let him enter on his vocation free from debt of every sort. Furnish his parsonage, therefore, for him, and pay the expenses attending the presentation and induction. If, besides, you advance him money till his tithe rent-charge become payable, to meet his weekly bills, and then to be repaid, you will leave him without excuse if he run into debt. Many a young clergyman has taken the first step towards ruin by being compelled to borrow money for his outfit. Now let me point out the inevitable result of his getting into debt. When involved, he of course raises money to meet his obligations. Fortunately he cannot directly charge his living, but unfortunately he can do so indirectly, for any creditor can obtain judgment against him, and upon that judgment a sequestration may issue, by which the profits of the living are secured to the creditor. The security which he can give is an infirm one, and might indeed wholly fail if he were to take steps to render the living void. He can only borrow money, therefore, under great disadvantages. If he were to resort to a common money-lender, his ruin would probably quickly follow. And even if he have recourse to an office of character, he would have to submit to deductions for office-expenses, interest, premium of insurance, legal expenses, &c., which would reduce the sum he borrowed much below the amount he required for his debts, so that he really would not be wholly relieved by the advance, and yet the nominal sum borrowed would instantly carry interest. I will not now enter into details. Sometimes another company is resorted to, to divide, by way of guarantee, the risk. The borrower then has to pay for a double set of deeds and two separate solicitors, and the amount is indeed large. He distributes freely the money he obtains; a remnant of old debt remains; and with a curtailed income, for interest is running on, he incurs new debts. Upon every loan or guarantee the company takes a judgment; other creditors will also obtain judgments; and as the race is to the swift, the companies who best know the actual circumstances of the borrower issue the first

It is clear and direct simony to purchase a presentation whilst the living is vacant; but the great probability of a speedy vacancy is immaterial if the purchase be

sequestration. The clergyman is compelled to leave the country, to protect himself from arrest. The sequestration is put in force, and the result is, that a portion of the tithe rent-charge being set aside to pay the curate appointed by the bishop, the whole net proceeds of the living are appropriated to pay the loan, &c. The incumbent is left penniless, the other creditors are in effect excluded, and the parishioners who pay the whole tithe-rent charge, have the services only of a curate with a small stipend. It has become customary for a society obtaining money for an incumbent from another company, to take a lease for a number of years, revocable by the society, but not so by the incumbent, of his tithe rent-charge, so as to insure their receipt of it and their own commission, and to enable them to pay the interest on the loan and the premium on a life policy, for of course the company who make the advance insure the life. I doubt the validity of such a lease. If it be legal, the Legislature ought to interfere. Where there is a sequestration and a prior lease, the clergyman pays a double commission, and the actual balance in the hands of the lessees, the lenders, after payment of taxes, rates, repairs, commission to lessees, and curate's stipend is paid by them to the sequestrator, who pays it to the registrar, who repays it to the very persons by whom it was paid to the sequestrator; and these three payments are attended at every step with considerable expense to the incumbent. This surely requires a remedy. When a man dedicates himself to the Church, and receives from his parishioners their dues, he has bound himself to their service, and they have a right to demand the faithful execution by him personally of his duties: he ought to spend his income amongst them. To allow him, therefore, to go abroad to avoid his creditors, and to allow a particular class of creditors to at once deprive the parish of their pastor, and to take to themselves the produce of the living, after a scanty allowance to a curate, is a direct violation of the relative rights and obligations of all parties. The remedy I have suggested in my place in Parliament is this:-1. No clergyman to have licence to live abroad, or from his living, on account of debts; 2. As he must remain and perform his duty, he should not be liable to arrest ; 3. But in the case of incurring debt, the bishop should allow him a decent maintenance out of the living; and, 4. The rest of the income should be apportioned amongst all the creditors pari passu, without reference to any security; 5. If, owing to his embarrassments, the incumbent is unable or unwilling to perform the duties under the foregoing conditions, then the living should be declared void, and he should be left subject to his debts like any other debtor. A scheme of this nature would render creditors more wary in giving unreasonable credit, and the young clergyman more careful not to incur debts where he must daily face his creditors. And it would put a stop to advances to him on the security of his

120

PURCHASE OF VACANT LIVING.

not corrupt. It has been held that, although the incumbent is on his deathbed, and it is uncertain whether he will live over the night, a man with full notice of this

living, for in case of a crash every creditor would stand on an equal footing; none could by law, as now, in effect constitute himself LAY RECTOR

OF THE PARISH.

Since the above observations were written the Government introduced a new Debtor and Creditor Bill, by which they proposed to abolish arrest in general. In this bill, the enactment in a previous statute, that in case of insolvency of an incumbent a sequestration should issue, was introduced. Now, abolishing the power of arrest would altogether alter the position of the incumbent and his parishioners in case there was a prior creditor's sequestration. For as the incumbent would no longer be liable to arrest, of course he would not go abroad, but would linger in his parish. By law he could not be removed, or be prevented from doing his own duty. But he would still be penniless, and the creditor who obtained the sequestration would still take the entire produce of the tithe rent-charge and rent of land, excluding all the other creditors. This would indeed create an evil in the parish much to be deprecated. The bill which passed the Lords afforded an excellent opportunity for carrying out my views; for the bill not only alters the law as regards the person for example, abolishes, in general, arrest, and materially alters the machinery, for example, enables creditors to dispense with the services of official assignees, but also takes away the rights of creditors over property, for example, renders a non-trader's future property exempt from his debts, and limits the right of the creditors to dispose of his property under a settlement, in remainder. I therefore proposed in the Lords to add the following clause to the bill:-"The sequestrator shall allow out of the profits of the benefice or curacy to the insolvent whilst he performs the duties of the parish or place such an annual sum, payable quarterly, as the bishop of the diocese in which the living is situated shall direct; and it shall be lawful for the bishop to appoint to such insolvent such or the like stipend as by law he might have appointed to a curate duly licensed to serve such benefice in case the insolvent had been non-resident; and no sequestration, except under the last foregoing provision, for any debt of any clergyman or curate, shall issue; and every sequestrator appointed after the eleventh day of October one thousand eight hundred and fiftynine shall hold the profits of the benefice or curacy wholly discharged of any lease which the insolvent may have granted or attempted to grant of his tithe-rent charge." The Bishop of London said he did not oppose the clause, but thought that it did not look sufficiently to the spiritual wants of the parish. The Lord Chancellor stated no objection to the clause, but objected to the introduction of it into his bill, which did not propose any alteration, but left the law as it stood on this point. In reply it was submitted that, as the law would stand after the bill passed, the clause would in no respect affect the spiritual question; but if an incumbent, by his in