CHAPTER XII. ACTIONS AGAINST CLERGYMEN. CHAP. XII. CLERGYMEN are, as has been already noticed, privileged Arrest of. from arrest while performing divine service, and while going to church for that purpose, and returning thence (a). The only other peculiarity in the mode of proceeding against clergymen is in the execution, and which is as follows: de Bonis Ec When the sheriff, to a common fieri facias, returns nulla Fieri Facias bona, and that the defendant is a beneficed clerk, not having clesiasticis. any lay fee (b), the plaintiff may sue out a fieri facias de bonis ecclesiasticis, directed to the bishop of the diocese, or to the archbishop, (during the vacancy of the bishop's see), commanding him to make of the ecclesiastical goods and chattels belonging to the defendant, within his diocese, the sum therein mentioned (c). It is tested and returnable, and must be sealed and indorsed, in the same manner as a common fieri facias (d). Take this writ to the register of the diocese, who will thereupon issue a sequestration (e), (which is in the nature of a warrant), directed to the churchwardens, requiring them to levy the debt of the tithes and other profits of the defendant's benefice. This sequestration must be published, by reading it in the parish church during divine service; and afterwards at the church door, and fixing a copy thereon, provided that be the usual mode of publication in the diocese where the sequestered benefice is situated (f); and, as the writ does not begin to operate and has priority only from the time of this publication (g), it should be done without delay. It has been accordingly recently held, that a sequestration obtained by the assignees of an insolvent incumbent, operates only from the time of publication, and does not entitle the assignees to the arrears of composition for tithes due before publication (h). But the property as against the defendant is, it seems, bound from the time when the sequestrator is appointed, and the publication is only necessary in order to give security against conflicting rights (i). Instead of directing this sequestration to the churchwardens, the plaintiff, upon giving security to the bishop, may have it directed to persons of his nomination (k). If the entire debt be not levied in one diocese, the plaintiff, Testatum. upon the return of the writ, may have a testatum fi. fa. de bonis alias, &c. (a) 50 Ed. 3, c. 5: 1 R. 2, c. 16: see Goddard v Harris, 7 Bing. 320; 5 Moo. & P. 122, S. C.: and see 9 G. 4, c. 31, s. 23. (b) See Pickard v. Pacton, 1 Sid. 276: Dalt. 219. And see the form of this return, Chit. Forms, 175. (e) See 2 Bac. Abr., Execution, G. 6: Walwyn v. Awberry, 2 Mod. 258. And see the form of the writ, Chit. Forms, 533. (d) See Vol. I. 419, 435, &c. (e) See forms, Tidd's Forms, 380. (f) Bennett v. Apperley, 6 B. & C. 630. VOL. II. (g) Wait v. Bishop, 3 Dowl. P. C. 234; 1 C., M. & R. 507, S. C.: 1 Cromp. 359: Tidd, 9th ed. 1024. (h) Waite v. Bishop, 1 C., M. & R. 507; 3 Dowl. P. C. 234, S. C. Lodging the writ with the registrar of the bishop of the diocese does not bind the property of the incumbent from the time of such lodging. (Id.: see post). (i) Per Bayley, J., Bennett v. Apperley, 6 B. & C. 630. (k) 3 Burn, Eccl. Law, 317: Tidd, 9th ed., 1023. N BOOK III. ecclesiasticis into another diocese, for the residue (7); or he may have an alias into the same diocese. PART II. Sequestrari After Outlawry. Execution Ör, instead of a fieri facias de bonis ecclesiasticis, the plaintiff may sue out a writ of sequestrari facias, directed, tested, and returnable, &c., as the fieri facias, commanding the bishop to enter into the rectory and parish church, and to take and sequester the same, and hold them, until of the rents, tithes, and profits thereof, and of the other ecclesiastical goods of the defendant, he have levied the plaintiff's debt (m). It is not necessary, even for the purpose of proving the issuing of this writ, that there should be an award of it on the roll (n). It is in the nature of a levari facias; the writ above mentioned in the nature of a fieri facias. The sequestration issued in a sequestrari facias, is a charge upon all the rents and profits, including the glebe-lands of the benefice, except the parsonage house in which the incumbent is bound to reside, so as to disqualify him under the 18 G. 2, c. 20 (n). If, to a special capias utlagatum, the sheriff returns an inquisition, finding that the defendant had benefices but no lay fee, the court will award a writ of sequestration on reading the transcript of the outlawry and inquisition (). But not unless the benefice be specified in the return(p). Either of these writs is a continuing execution, that is, and Return continuing until all that has been commanded to be levied is levied; and if the sequestration issue before the writ is returnable, it is sufficient though it be not published till afterwards (9). And the plaintiff is entitled to the growing profits from time to time, though long after it is returnable, until he is satisfied the sum indorsed on the writ (r). If, however, it be actually returned, the bishop's authority is determined (r). A sequestration, as above observed, is in the nature of a levari facias at common law, and the party sequestering has neither jus in rem vel in re; the legal estate of the premises remaining in every respect as before (s). It seems, that a return merely setting out the debtor and creditor account of the sequestrator is insufficient, but that it should be verified (†). Rule to Return, &c. Setting aside The defendant has no right to have the writ returned, though he may have a return of the amount of the profits received by the sequestrator (u). The bishop, with reference to these writs, stands in the same situation precisely as the sheriff with reference to writs in ordinary cases, and may be ruled, and is bound to obey the orders of the court, as to their execution, &c., in the same manner as the sheriff (v). On an application to set aside the sequestration of a benefice Sequestration. issued by the bishop, it is perhaps requisite that the bishop be made a party to the rule (x). (r) Marsh v. Fawcett, 2 H. Bl. 582: see Phillips v. Berkely, 5 Dowl. 279. (8) 1 P. Wms 307. (t) Elchin v. Hopkins, 7 Dowl. 146. (u) Hart v. Vollans, 1 Dowl. 484 (r) Sce Rez v. Bisho of London, 1 D. & R. 486 Bennett v. Apperley, 6 B & C. 630; 9 D. & R. 673, S. C.: see Phillips v. Berkely, 5 Dowl, 279. (a) Bishop v. Hatch, 1 Ad. & El. 171. Effect of the The 55th section of the 1 & 2 V. c. 110, enacts, that the CHAP. XII. assignees of a clergyman shall not be entitled, as such, to the income of his benefice or curacy for the purposes of that act, but Insolvency of provides that they may apply for and obtain a sequestration Defendant. of the profits of his benefice for payment of his debts, and that the order for their appointment in pursuance of the act shall be a sufficient warrant for granting such sequestration without any other proceedings, and that the sequestration shall be issued, as it might have been issued upon any writ of levari facias on a judgment against the prisoner. Under the corresponding section in the former act, the title of the assignees to a sequestration commenced with the order of adju dication, and not with the order of appointment, as will be the case under the present act. Under the former act it was held (y), that a creditor who had commenced his action after the imprisonment of the insolvent and obtained judgment, and procured sequestration before adjudication, was entitled to priority over the assignees, who were considered to stand merely as judgment-creditors from the time of adjudication. And this, substituting appointment for adjudication, is still the case, so that a creditor who takes care to procure sequestration before the assignees will secure the payment of his debt, so far as the profits of the benefice extend, to the prejudice of the other creditors. ) Bishop v. Hatch, 1 Ad. & El. 171: see Waite v. Bishop, C., M. & R. 507. } CHAPTER XIII. Book III. Who admitted to sue in Formȧ Pau what Cases. ACTIONS BY PAUPERS. Who admitted to sue in Formâ Pauperis, and in what Cases.] EVERY poor person, who may have cause of action, shall peris, and in have writs according to the nature of his case, without paying for the sealing or writing the same; and the justices shall assign him counsel and attornies, who, together with the officers of the court, shall act gratis (a). The party applying must swear that he is not worth 57., excepting his wearing apparel, and the matter in question in the cause (b). It is discretionary with the court or chief justice to grant the indulgence of suing thus in formâ pauperis. They will not grant it in any vexatious action. And it will not be granted in a second ejectment, where the costs of a prior ejectment for the same cause are unpaid (c). When admitted. How admitted. It is confined to plaintiffs, and cannot be granted to a defendant in a civil action in a court of law (d). A person may be admitted to sue in forma pauperis by prochein amy, and the application for this purpose may form the subject of one motion (e). When admitted.] It has been the practice to grant the order for admission to sue in formâ pauperis either at the commencement of the suit, or at any subsequent period of it (ƒ). But the Court of Exchequer, in a recent case, held that such an order, made after the commencement of the suit, was irregular; and that the plaintiff should either submit to be dispaupered, or find security for costs (g). The point, however, can hardly be considered as finally settled. How admitted.] The party may be admitted, either upon motion in court (h), or (which is the mode usually adopted) upon petition to the chief justice or chief baron of the court (i). Write an affidavit to the effect above mentioned, on plain paper (i), and have it sworn by the pauper, before a judge or commissioner. Write out a petition also on plain paper, and signed by the pauper, stating the cause of action, and praying to be admitted to sue in formâ pauperis, and that counsel and attorney (naming them) may be assigned to him (i); and at the foot of it, get counsel to subscribe his opinion shortly, that the plaintiff has good cause of action(i). ́ ́ Annex the affidavit to the petition; (a) 11 H. 7, c. 12: and see 23 H. 8, c, 15, 8. 2. (b) R. H., 3 & 4 J. 2, r. 1, a: Lil. Pr. Reg. 633: Tidd, 9th ed. 98. (c) Goodtitle v. Mayo, Tidd, 9th ed. 98: see Weston v. Withers, 2 T. R. 511. (d) Anon., Barnes, 328: 16 Vin. Abr. 259, pl. 4. The Court of Exchequer may, in an information on the excise laws, allow a party to defend as pauper. (See Attorney-General v. Dummia, 2 C. & M. 393: 4 Tyr. 284, S. C.: R. v. Wright, Hard. 211, 253). So on an indictment he may be allowed to defend as a pauper. (See R. v. Page, 1 Dowl. 507: R. v. Wilkins, Id. 536). (e) Bryant v. Wagner, 7 Dowl. 676. (f) See Blood v. Lee, 3 Wils. 24, per Wilmot, C. J.: Jones v. Peers, 1 M'Clel. & Y. 582: Morgan v. Eastwick, 7 Dowl. 543. (g) Lovewell v. Curtis, 5 M. & W. 158: see Foss v. Racine, 4 M. & W. 610; 7 Dowl. 203, S. C. (h) See R. H., 3& 4 J. 2, r. 1. take them to the chief justice's chambers, and his clerk will there- CHAP. XIII. upon make out the order(k); if moved for in court, annex the affidavit and opinion to the brief: and, afterwards, draw up the rule with one of the masters. The rule need not be drawn up on reading counsel's certificate, as that instrument is only for the information of the court(1). Take this rule or order to the different offices through which you pass the proceedings, in order to avoid any demand for fees; and annex a copy of it to the declaration, (or to the next proceedings after obtaining the order, if after action), before you deliver or file it. There is a rule in the Exchequer (m) that no person shall be admitted in forma pauperis, unless the attorney to be assigned, or his clerk, attend a baron with a petition for his admission, and that no counsel shall be assigned unless such counsel only who hath certified the cause of such action and petition. In a recent case on an application for leave to sue in formâ pauperis, without obtaining the certificate of a barrister, it was stated, that the action intended to be brought was a second action; that the counsel who signed upon the former occasion was out of town, and that the applicant apprehended counsel would be unwilling to sign his certificate: the court refused the application, thinking it prematurely made (n). mission. Effect of Admission.] The order for admission extends only Effect of Adto the particular cause in which it is granted (o); and, if granted pendente lite, it has, in general, no retrospective effect (p). Pauper. After admission to sue in formá pauperis, the plaintiff shall No Fees, &c., be at liberty to carry on all the proceedings without paying payable by fees to the officers of the court, or to his counsel or attorney. But, if he afterwards have judgment in the action for more than 57., the counsel, attorney, and officers are, it seems, entitled to their fees, at least to such fees as shall be allowed by the master in taxing the costs (7); for, although they perform their several duties for the pauper gratuitously, his adversary should not be allowed to derive any advantage or benefit from that circumstance. fendant. A pauper is entitled to costs in all cases in which other Costs as plaintiffs are entitled to them; but in no case (except where against Dehe omits to proceed to trial pursuant to notice, or an undertaking, as noticed infra) is he obliged to pay costs to the defendant(r). And a pauper is entitled to his costs from the commencement of the action, although admitted to sue in that character in the progress of it; and, therefore, the defendant cannot stay proceedings on payment of the debt only (s). The defendant is not even entitled to have costs of issues, on (k) See the form, Chit. Forms, 537. (1) Bryant v. Wagner, 7 Dowl. 676. (m) R. E., 3 G. 1. (n) Stockdale v. Hansard, 1 Jurist, 355. (o) Lib. Pr. Reg 633: and see Gibson v. M'Carty, Hardw. 311. (p) Jones v. Peers, 1 M'Clel. & Y. 282; where through the laches of the defendant it obtained a retrospective effect. (See Blood v. Lee, 3 Wils. 24). (q) In James v. Harris, 7 C. & P. 257, it was ruled by Williams, J., that if the pauper obtain a verdict for more than 57. (r) See 23 H. 8, c. 15, s. 2: Rice v. (8) Morgan v. Eastwick, 7 Dowl, 543. |