Bonaker, Clerk, against Evans
Jurisdiction | England & Wales |
Judgment Date | 03 December 1850 |
Date | 03 December 1850 |
Court | Exchequer |
English Reports Citation: 117 E.R. 840
IN THE EXCHEQUER CHAMBER.
S. C. 20 L. J. Q. B. 137; 15 Jur. 460. Applied, R. v. Cheshire Lines Committee, 1873, L. R. 8 Q. B. 348.
840 BONAKER V. EVANS 1 Q. B. 163. in the exchequer chamber. (error from the queen's bbnoh.) bonakeh, Clerk, against evans. Tuesday, December 3d, 1850. Under stat. 1 & 2 Viet. c. 106, a writ of sequestration issued from the Consistory Court of the diocese of W., reciting that the bishop had issued a monition, ordering the vicar of the vicarage of C., within the diocese, to reside on his benefice, that the monition was served on the vicar, and be returned that he bad since commenced residence in consequence of this monition: that it had been officially reported to the bishop that the vicar had so commenced residence, but had not continued to reside, and had not been present at his vicarage house four months on the whole in the year following the monition; that the bishop thereupon, by a subsequent order, ordered him to proceed to and reside on the benefice within thirty days; which order had not been complied with : and the bishop had therefore directed the Court to sequester the profits until the order should have been complied with, or satisfactory reason for non-compliance shewn to the bishop : whereupon the Court sequestered the profits, until, &c. (as before), directing the sequestrator to collect them and out of the same to cause the cure to be duly served, and to account for the residue, &c. The sequestrator having taking the profits accord ingly, an action of debt for money had and received was brought against him by the vicar. It appeared at the trial that the sequestration had issued without notice to the vicar to shew cause why it should not issue. Held by the Court of Exchequer Chamber, on error and bill of exceptions, that such notice was essential to the right of the sequestrator, although, after a proper preliminary proceeding, the judgment of the bishop is final. And, that a notice warning the vicar, after he had made return to the monition, that, unless he resided, the sequestration would issue, was not such a notice as was requisite. Also, that the sequestration could not be considered as issuing under sect. 56, which authorizes the bishop to sequester quousquo without further monition or order, when the clerk, after being ordered to reside, begins to reside, but, before the expiration of twelve months thereafter, wilfully absents himself for one month. And that the action of debt was well brought. It is advisable that the sequestration in such a case should recite the delinquency and the bishops adjudication thereon ; and that the previous monition be preceded by a summons to shew cause why it should not issue. [S. C. 20 L. J. Q. B. 137; 15 Jur. 460. Applied, R. v. Cheshire Lines Committee, 1873, L. E. 8 Q. B. 348.] Error from the Court of Queen's Bench, with a bill of exceptions. 163] The declaration was in debt for money had and received; to which the defendant pleaded nunquam indebitatua: whereupon issue was joined. The cause was tried before Erie J., at the sittings in Westminster after Hilary term, 1850. The bill of exceptions, so far as it is material to the present report, stated as follows. The plaintiff, to maintain the issue on his part, gave in evidence that the parish of Cburch Honeybourne is in the county and diocese of Worcester. That the !benefice is a vicarage. That, on 6th May 1817, the plaintiff was duly and canonically instituted in and to the vicarage of the said parish and parish church, and invested by the Bishop of Worcester with, and inducted into, all and singular the rights, &c. thereunto belonging; and that he continued thenceforth to be and was vicar of the said vicarage and parish church, until and at the time of the commencement of this suit, if the writ of sequestration hereinafter mentioned be void. That, as such viear, be was, during all the time aforesaid, duly invested with all and singular the rights belonging to the vicarage, and, as of right, during all the time aforesaid, entitled to all the tithes, profits, &c. of the parish. That, on 21st [164] June 1843, plaintiff was duly licensed by the present bishop to be absent from his said benefice until 31st December 1843, and to reside at Evesham, distant about five miles from the church of Church Honeybourne. That, since the last mentioned license expired, plaintiff has had no other license granted to him for non-residence, or to live out of the vicarage house. That plaintiff has for some years resided, and does still, reside with his family at Evesham. That, on 5th November 1846, the present Bishop of Worcester caused to 16 Q. B.16J. BONAKER V. EVANS 841 be issued, under his hand and seal, the following monition, which was duly served upon the plaintiff. " Henry, by divine permission, Lord Bishop of Worcester, to William Baldwin Bonaker, clerk, vicar," &c. " of Church Honeybourne, in the county and our diocese of Worcester, greeting. Whereas it appears to us that you, the said W, B. B., being a spiritual person holding a benefice, to wit the said vicarage," &c., "not having a license to reside elsewhere than in the house of residence belonging to your said benefice, nor having any legal cause of exemption from your residence, do not sufficiently, according to the true meaning and intent of an Act," &c. (1 & 2 Viet. c. 106 (a)), " reside on your said benefice: we do, therefore, under and by virtue of the power and provisions of the said Act of Parliament, monish and require you, the said W. B. B., forthwith to proceed to, and reside on, your said benefice of C. H., and to perform the duties thereof, and to make a return to this monition within fifty days after the issuing of this our monition on this day issued. Given under our hand and episcopal seal," &c. (5th November 1846), &c. That, on 19th December 1846, the...
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Preliminary Sections
...Report 239. 117 Bolton v. Madsen (1963) 110 C.L.R. 271. .......................................................... Bonaker v. Evans (1850) 16 Q.B. 162, 171 489 ....................................................... 689 Borrowes v. Delaney, L.R. Ir. 24 Ex D W 503 .................................