the purpose of satisfying his debt out of the benefice of a clergyman, and yet, that, where the legislature has vested the whole property of the debtor in assignees for the benefit of the creditors in general, those assignees should not have any power to affect his benefice, would certainly be an anomaly in the law. Whether there be any means of obviating this anomaly I will not pretend to say. Lord Hardwicke, in the case of Ex parte Meymott, 1 Atk. 196, abstains from laying down decisively in what manner the claims of the assignees upon such property might be made available. He seems, however, to think, that, in a writ to the bishop, the assignees might have the same remedy as any other creditor. But he never hints at an idea that they could take possession of the benefice in the same manner as they might of lay property. The only question in that case was, whether a clergyman could be made a bankrupt. Mr. Wilbraham, in arguing for the negative, insisted that his living could not be assigned by the commission; for that the assignees must take all or *none; and [*341 if they took all, nothing would be left to provide for the service of the cure. Lord Hardwicke, who inclined to think that a clergyman might be a bankrupt, after noticing this objection, and stating the common-law rule with respect to sequestration, says,—‘I do not see (but I give no opinion) why the same method may not be followed under the commission of bankruptcy, for it does not appear to me that this would supersede the bishop's authority.' As a long time has elapsed since this opinion was thrown out, during which some clergymen must probably have rendered themselves obnoxious to commissions of bankrupt, I desired inquiries to be made respecting the mode of proceeding adopted under those commissions. But these inquiries have not produced any instance in which proceedings against a benefice have taken place. Nor shall I undertake to point out in what manner the assignees in this case must proceed. But, although there may be difficulties in the mode of proceeding, we are not therefore to hold that the nature of the property which a clergyman has in his benefice is changed by the operation of an insolvent act, or that the assignees under such an act will be entitled to demand and receive ecclesiastical dues." In Bishop v. Hatch, 1 Ad. & E. 171, 3 N. & M. 498, it was held, that the assignees of an insolvent clergyman do not acquire any right to his benefice, or the income of it, by the assignment, nor until they have obtained a sequestration, as directed by the 7 G. 4, c. 57, s. 28, after adjudication by the insolvent debtors court on such insolvent's petition; that an individual judgment-creditor may sequester the benefice for his own debt, notwithstanding the assignment to the provisional assignee ; and that the assignees, after adjudication, are not entitled to set aside the sequestration of such creditor, or to claim precedence over it for a sequestration issued by them pursuant to the act. Littledale, J., there N. S., VOL. I.-16

says, "The proviso of the 28th section operates merely as an *ex*342] ception to what is enacted in the 11th, (a) and must be read as if introduced at the end of it. The legislature does not deprive the assignees altogether of this kind of property; but, till the adjudication, they are not in a condition to proceed against it. After adjudication they may, but until then there is nothing to prevent other creditors from suing out execution in the ordinary way." And Patteson, J., says: "The provisions of this act are certainly contradictory; and, when this case was last argued, I thought that a decision such as I am now obliged to come to, would be so much at variance with the whole object of the act, that I wished to see if any clause could be pointed out which would enable us to arrive at a different conclusion. I was much struck with the argument urged on behalf of the assignees, that by the 28th section. their hands are tied until the adjudication of the insolvent debtors court, while other creditors have notice, and are at liberty, to proceed against the benefice; and I should have been glad to find any words in the act showing this not to be so. But, on looking into it, no such words are found. The 11th section, to operate favourably to the assignees, should convey to them either a right to take the income, or an absolute property in the benefice. The first it certainly does not, or if it did, the right is cut down by the 28th section. If the whole property passed *by the 11th, the 28th section would be absurd: and both must *343] be taken together. Arbuckle v. Cowtan, 3 Bos. & P. 321, is an express decision that the profits of an ecclesiastical benefice do not pass by assignment under the insolvent debtors act: the words of the clause in the then existing statute (37 G. 3, c. 112, s. 12), upon which that case turned, were nearly similar to those of s. 11 of the present act. I think that case, and the words of the statute, cannot be got over. I see the inconvenience which follows; but that is a matter to be provided for by the legislature." The legislature has not thought fit to interfere in the matter; for, the 55th section of the 1 & 2 Vict. c. 110(b) is a reenactment of the 28th section of the 7 G. 4, c. 57. It is clear, therefore, that the income of the defendant's benefice had not passed to his

(a) "That all powers vested in any petitioner for protection from process whose estate shall, under the provisions of the said recited act or this act, or either of them, have been vested in an assignee or assignees, which such petitioner might legally execute for his own benefit (except the right of nomination to any vacant ecclesiastical benefice), shall be hereby vested in such assignee or assignees, to be by such assignee or assignees executed for the benefit of the creditors of such petitioner under this act, in such manner as such petitioner might have executed the same." Re-enacted, 1 & 2 Vict. c.110, s. 49.

(b) Which enacts "that nothing in this act contained shall extend to entitle the assignee or assignees of the estate and effects of any such prisoner, being a beneficed clergyman or curate, to the income of such benefice or curacy, for the purposes of this act : provided always, that it shall be lawful for such assignee or assignees to apply for and obtain a sequestration of the profits of any such benefice, for the payment of the debts of such prisoner: and the order apappointing an assignee or assignees of such prisoner, in pursuance of this act, shall be a sufficient warrant for the granting of such sequestration, without any writ or other proceedings to authorize the same; and such sequestration shall accordingly be issued, as the same might have been issued upon any writ of levari facias founded upon any judgment against such prisoner."

assignees when this writ of sequestrari facias issued. The interim order under the 7 & 8 Vict. c. 96, s. 6, operates a protection of the insolvent from all "process" which might affect property vested in the assignees. The rights of a creditor are not to be taken away without express words.

Welsby, in support of his rule.-By the express *language of the 5 & 6 Vict. c. 116, s. 1, the interim order operates "a pro[*344 tection to the prisoner from all process whatever, either against his person or his property of every description." Here, all the proceedings took place after the making of the protecting order. The 5 & 6 Vict. c. 116 is not to be taken in pari materia with the ordinary insolvent acts its object was, to give temporary protection to persons coming forward and giving up their property for the general benefit of their creditors: this is shown by the preamble,-"Whereas it is expedient to protect from all process against the person such persons as have become indebted without any fraud or gross or culpable negligence, so as nevertheless their estates may be duly distributed among their creditors." And the plain meaning of the enacting words, is, that, pending the protection, the person and property of the petitioner shall be free from all molestation. This is further carried out by the 5th and 7th sections. [CROWDER, J.-Does the 1st section mean more than that the interim order shall enure as a protection of the person of the petitioner, and of the property which on the final order is by s. 7 to vest in the assignees?] That is the question. [CROWDER, J.-How do you get over the case of Bishop v. Hatch?] Whether the property passes to the assignees or not, is immaterial. [WILLIAMS, J.-How are the assignees to provide for the performance of the necessary duties of the benefice?] It is not necessary to insist on the rights of the assignees. All that is contended for on the part of the defendant, is, that pending the proceedings under his petition, there is a stay of all process whatever as against his person and his property. It is not contended that the process is void, but merely that it is stayed. Cur. adv. vult.

WILLIAMS, J., now delivered the judgment of the court:*This was a rule obtained by the defendant calling upon the [*345 plaintiff to show cause why a writ of sequestrari facias should not be set aside, upon the ground that, as the defendant had obtained an interim order under the statutes 5 & 6 Vict. c. 116, and 7 & 8 Vict. c. 96, the issuing of the sequestrari facias was in violation of the 1st section of the first-mentioned act, which enacts, that, when the interim order is obtained, all process against person or property shall be stayed. The case was argued on the last day of Michaelmas Term, before Cockburn, C. J., and my brothers Crowder and Willes, and myself: and we are of opinion that the rule should be discharged.

The law is clear, that property consecrated to divine uses shall not be

taken in execution by temporal hands. Thus, the glebe or churchyard cannot be taken under an elegit.(a)

Upon this principle it was held in Arbuckle v. Cowtan, 3 Bos. & Pul. 321, that profits of a benefice did not pass under an assignment pursuant to the then insolvent act.

The same principle was again affirmed in Bishop v. Hatch, 1 Ad. & E. 171 (E. C. L. R. vol. 28), 3 N. & M. 498, where it was considered by Patteson, J., that the assignees of an insolvent under the 7 G. 4, c. 57, even without the introductory words of the 28th section, would have been confined to the peculiar remedy given by that section of the statute (similar to s. 55 of the 1 & 2 Vict. c. 110): see also Waite v. Bishop, 1 C. M. & R. 507,† S. C. 3 Dowl. *P. C. 234, more fully reported, and Hawkins v. Gathercole, 6 De Gex, M'N., & G. 1.(6)

*346]

The statutes now under consideration, construed with reference to the above rule of law, contain no provision by which the assignees can obtain the profits of an ecclesiastical benefice: and, as we think it clear that only such property as would pass to, or could be distributed by, the assignees under the act, is protected from process by the interim order, it follows that a writ of sequestrari facias not affecting such property, but being a direction to the bishop to apply the surplus proceeds of the defendant's ecclesiastical benefice, after providing for the cure of souls and other necessary outgoings, towards payment of the plaintiff's debt, has been properly issued, and the rule to set it aside must therefore be discharged with costs. Rule discharged, with costs.

(a) See Gilbert on Executions, p. 40, citing Jenk. Cent. p. 207, where it is said that an "elegit does not lie of the glebe land of a parson or vicar, no more than of a churchyard: est solum Deo eonsecratum,"-referring to M. 29 Ed. 3, fo. 44, and M. 21 Ed. 4, fo. 45, b.

(b) Where it was held that a registered judgment against a clergyman does not create a charge upon his benefice entitling the judgment-creditor to the appointment of a receiver, under the 1 & 2 Vict. c. 110, s. 13.

*347]

*SIMPSON v. SAVAGE.

Dec. 2.

In an action by a reversioner, for an injury to his reversion, by the erection of workshops and a forge and chimney on land adjoining his houses, in the occupation of his tenants, and causing smoke to issue from the chimney, and making loud noises,-the evidence was, that the chimney was built by the defendant's landlord, and that large quantities of smoke issued from it in consequence of fires lighted by the defendant for the purposes of his trade, and that the plaintiff's tenants gave notice to quit:

Held, that there was no evidence to go to the jury to prove injury to the reversion; for, that, to entitle the plaintiff to maintain the action, the injury complained of must be of a permanent character, and the only act chargeable to the defendant, the lighting the fires, not being in ite nature permanent.

THIS was an action for an injury to the plaintiff's reversion, by the erection of certain workshops and forges on land adjoining the plaintiff's houses, making fires therein, and causing smoke to issue therefrom, &c.

The declaration stated, that, before and at the time of the committing of the grievances thereinafter mentioned, certain messuages and dwelling-houses, with the appurtenances, of the plaintiff, were respectively in the occupation of certain tenants thereof to the plaintiff, the reversion thereof respectively then and still belonging to the plaintiff: yet that the defendant, whilst the said messuages and dwelling-houses, with the appurtenances, were so in such occupation as aforesaid, wrongfully and unjustly, without the leave or license of the plaintiff and his said tenants, and against their will respectively, built and erected certain workshops, manufactory, and forges, and other permanent works, adjoining and close to the messuages and dwelling-houses aforesaid, for the purpose of working and permanently continuing to work the same in the manner thereinafter mentioned, and then wrongfully and unjustly made and caused to be made and continued therein and thereon divers large and injurious fires against the will of the plaintiff and his said tenants, and made thereon wrongfully and injuriously and continuously loud, heavy, jarring, hammering, battering, and agitating sounds and noises; and by reason of the premises, and of the smoke, blacks, and other gaseous effluvia arising from the said fires and forges entering into and diffusing themselves in, upon, over, *and throughout the said messuages and [*348 dwelling-houses, the same had respectively become utterly and permanently uninhabitable, and the said tenants respectively had been and would be compelled to quit and leave the same respectively, and to cease to be the tenants thereof, and the plaintiff would be unable to let the same, or to turn the same to any beneficial or profitable account, and the same had become and were thereby greatly deteriorated in value, and the present market price thereof was thereby greatly diminished, and the plaintiff had been and was and would be permanently injured, prejudiced, and aggrieved in his reversionary estate and interest in the said messuages and dwelling-houses by reason of the premises: And the plaintiff claimed 500%.

Plea, not guilty; whereupon issue was joined.

The cause was tried before Lord Campbell, C. J., at the last assizes for the county of Norfolk. The facts were as follows:

The plaintiff was the owner of a plot of ground in King's Lynn, in the county of Norfolk, upon which he built several houses in 1850, which were let to tenants at rents varying from 40l. to 441. per annum. The defendant is an agricultural implement maker occupying premises consisting of workshops with a forge and chimney and yard closely adjoining the back yards of the plaintiff's houses. The workshops, forge, and chimney were erected (not by the defendant) in 1851, and were a few feet only from the back windows of the plaintiff's houses. The nuisance complained of consisted in the emission of smoke from the forge chimney, to such an extent that great quantities of soot entered the windows in the rear of the plaintiff's houses, dirtying and spoiling