1854. HAWKINS v. quently preferred. But although it might for these reasons be successfully contended that a benefice might even be taken in execution, it is not necessary to carry the argument so far. For it might be conceded that GATHERCOLE. the sheriff could not seize the profits of a benefice, and yet it would not follow that they are not within the 13th section, for this section introduces a totally new enactment, and not, like the 11th section, merely an extension of an old one. It is not necessary that the property to be comprised in the 13th section should be such as could have been taken in execution before the Act passed. The intention of the 1 & 2 Vict. c. 110, was to change substantially the law of debtor and creditor. In Harris v. Davison (a), Sir L. Shadwell said, "The Act is a remedial one; and, therefore, ought to receive a liberal construction. The whole object of the legislature was to give creditors a more effectual remedy against the property of their debtors than they had under the old law, in compensation for the remedy against the persons of their debtors which the Act took away from them. What the legislature meant was to facilitate the obtaining payment of debts, and to do away with the punishment of debtors." And in Whitworth v. Gaugain (b), Lord Cottenham thus expressed himself: "The object of the Act was to give to creditors more effectual remedies against the estate of their debtors." There is no valid objection to a beneficed clergyman charging his living. It does not injure the church. The church is provided for, and then the contest is only between a creditor with a just debt owing to him and a debtor who will not pay it. White v. Bishop of Peterborough (c), and Metcalfe v. Archbishop of York (d), show that there was no objection at com (a) 15 Sim. 128, 133. (b) 1 Phil. 728-734. (c) 3 Swanst. 109. mon 1854. HAWKINS V. GATHERCOLE. mon law to charging a benefice. The judgment of Lord Eldon in Silver v. Bishop of Norwich, reported in the note to the former of those cases (a) was in writing and is printed from the manuscript. The order in that case is set out at page 117 of the report. The Irish cases cited only apply to the sections respecting executions. With respect to the omission of the word " vicarages," on which stress has been laid, the general words of the Act are sufficient to comprehend the temporalties of a vicarage, the endowments of which are usually tithes and glebes. Moreover, as the statute is a remedial one, "vicarages" would be held to be included in the term rectories." There are authorities to that effect in the books of Ecclesiastical as well as Common Law (b). In 13 Edw. 1, stat. 1 (Westminster the Second), c. 24, the words "persona alicujus ecclesiæ," are said, by Lord Coke (c), to include vicars. So in 35 Edw. 1, stat. 2 and 9 Edw. 2, stat. 1, c. 9. With regard to the comparison of the language of the 1 & 2 Vict. c. 110, with that of the Statute of Frauds, the objects of the two Acts must be considered, and having regard to this it does not follow that the same language is necessarily to be applied in the same manner in both. Nor is there any ground for the argument that the authority of the bishop will be interfered with. When the legislature gives authority to a tribunal it assumes that the authority will be exercised with due regard to the rights of all parties and to other parts of the law. [The LORD JUSTICE KNIGHT BRUCE. Might not the receiver be a respectable and worthy Jew?] He might, might, and so might a sequestrator. All that can be charged or taken by a receiver is that which by law is not required for the service of the church. Those duties which are by law the first charges must be provided for, and there is no pretence for supposing that the Court of Chancery would not by communication with the bishop or otherwise make due provision for them. All the acts of a receiver take place under the immediate superintendence of the Court. They also referred to Mouys v. Leake (a); Colebrook v. Layton (b); Benday v. Price (c); Can v. Heaton (d); Doe v. Angell (e); Lane v. Horlock (ƒ); Cuddington v. Withy (g); Moore v. Ramsden (h). Mr. Greene appeared for the incumbent. Mr. Speed for the Bishop of Ely. Mr. Baily in reply. With respect to the precedents of decrees during the time when the Act of Elizabeth was not in force it does not appear that Lord Eldon's attention was drawn to the form of them. [The LORD JUSTICE KNIGHt Bruce. The 55th section of the 1 & 2 Vict. c. 110, appears to provide very well for the difficulty in case of insolvency.] The only question discussed before Lord Eldon appears to have been, whether judgment creditors had priority over an equitable charge, the validity of the equitable charge itself having been never disputed but taken for granted. 1854. HAWKINS v. GATHERCOLE. 1854. HAWKINS v. granted. The difficulty as to providing for the service of the church never seems to have been brought to Lord Eldon's attention, and in the orders the form GATHERCOLE. adopted in a writ of sequestration was adopted. With respect to the words of the Act the same words are used in the 11th and 13th sections, and must have the same effect given to them. We have shown that in the 11th section they do not apply to ecclesiastical benefices. Neither can they therefore in the 13th. Judgment reserved. 1855. Jan. 19. The LORD JUSTICE KNIGHT Bruce. The principal question for decision in this litigation is of the interpretation to be put on the 13th section of the statute of the 1st & 2nd of the Queen, c. 110, with regard to the case of a beneficed clergyman against whom a judgment having been entered up, the fruits of his vicarage are alleged on one side and denied on the other to fall within the operation of the section. It cannot, I apprehend, be denied that by the law of this country, as it stood at the time when the Act passed, a beneficed clergyman was prohibited and disabled from charging and from contracting to charge the fruits of his living or any part of them even as against himself-a point as to which it must be unnecessary now to mention particularly that numerous class of cases to which Arbuckle v. Cowtan (a), Bishop v. Hatch, (a) 3 B. & P. 321. v. Hatch (a), Alchin v. Hopkins (b), and Saltmarshe v. Hewett (c), belong. And it seems to me equally clear that the law in this respect was founded on considerations of public policy, that is to say, the general good of society, and especially the temporal support of the national religion. That general good was, in my judgment (if I may properly express an opinion upon the matter), well consulted by this provision of our institutions, whether new in the reign of Elizabeth or of earlier origin. Nor has the law in this regard been, as I believe, altered during the present reign. Still it is illegal, still impossible for a beneficed clergyman to make an effectual contract for charging even against himself the whole or any portion of the fruits of his living at least so I understand the matter. If, however, the Plaintiff's present contention is well founded, a creditor of an ecclesiastical rector or of a vicar has but to obtain a judgment against the debtor for the debt, in order to be, so far as equitable rights and equitable remedies are concerned, in the same position as if he had been capable of contracting and actually contracted to charge, at least as against himself, the property belonging to him in right of his church or vicarage, directly with the debt; one consequence of which must, I suppose, be the liability of the property to foreclosure or sale for the whole period of the incumbency under a decree of the Court of Chancery according to its common course of dealing with equitable mortgages, and to have a receiver placed on it by the same authority at the instance of the creditor, a receiver under an order for instance such as one of those now before us, thus expressed: [His Lordship read the order of the 21st November 1850, the substance of which is set out above.] (a) 1 A. & E. 171. (b) 1 Bing. N. C. 99. (c) 1 Ad. & E. 812. D.M.G. It 1855. HAWKINS v. GATHERCOLE. |