Harding v Hall and Others
| Jurisdiction | England & Wales |
| Judgment Date | 27 May 1842 |
| Date | 27 May 1842 |
| Court | Exchequer |
English Reports Citation: 152 E.R. 374
EXCHEQUER OF PLEAS.
S. C. 11 L. J. Ex. 354; 6 Jur. 649. Referred to, Hewson v. Shelley, [1914] 2 Ch. 38.
[42!] harding v. hall and others. Exch. of Pleas. May 27, 1842.-The sequestrator of a benefice, appointed by the bishop under a writ of sequestrari facias, is the mere bailiff or agent of the bishop, and has no such interest in the profits as will enable him to maintain an action at law against a party who wrongfully receives them. [S. C. 11 L. J. Ex. 354; 6 Jur. 649. Referred to, Hewson v. Shelley, [1914] 2 Ch. 38.] Debt for money had and received, for interest, and on an account stated. Pleas- nunquam indebitatus, set-off, and payment. At the trial, before Parke, C., at the last York Assizes, it appeared that the action was brought against the defendants as the ^assignees of Francis Iveson, who had been appointed by the Archbishop of York, in the year 1833, sequestrator of the rectory of Lockitigton, in that county, in respect of two judgment debts due to him from the incumbent, the Rev. Francis Lundy, amounting to 4500. Iveson appointed one Cornelius Collett receiver of the rents and profits : in 1834 Iveson became bankrupt, and the defendants were appointed his assignees ; and Collett had since paid over to them the entire fruits of the benefice. In December, 1836, Mr. Lundy entered into a deed of composition with his creditors, whereby the plaintiff and two other persons were named as trustees for the benefit of themselves and the other creditors, Lundy agreeing to allow judgment to he signed against him in this Court for 1500, besides damages and costs, and they agreeing not jto issue execution against his person. Judgment was entered up accordingly, and'a second Writ of sequestrari facias issued thereon, under which the plaintiff was, on the 9th January, 1839, appointed sequestrator of the same rectory of Lockington. Thia sequestration was duly published on the 13th January ; arid on the 13th February notice thereof was served on the defendants and Collett, and that they were discharged from further receiving the profits of the rectory under Iveson's sequestration. Iveson died on the 3rd March, 1840. This action was brought to recover from the defendants the sum of 16901. 12s. 2d., consisting of the amount received by them from the profits of the rectory since the 13th January, 1839, and also of an alleged excess beyond the amount of the debts due to Ive-[43]-son, previously received on his account On these facts, it was objected for the defendants that the action could not be maintained, on the ground that the soquestrator is, in poiot of law, no more than a kind of bailiff', and [therefore not entitled to sue in his own name for the profits of the sequestered benefice : and t|he learned Judge, being of that opinion, nonsuited the plaintiff', but gavej him leave:to move to enter a verdict for such sum as an arbitrator should find to be due, in case the Court should be of a contrary opinion. 10M,&,W.*4 HARDING V. HALL 375 In Easter Term, Baines obtained a rule nisi accordingly, against which Dundas and Crompton now shewed cause. Two questions arise in this case : first, whether a sequestrator can maintain such an action as this at all; secondly, whether he can, at all events, maintain it while a former writ of sequestration is pending. The plaintiff cannot, on this record, assort a title as judgment creditor, because he was such conjointly with two other persons. Now, in support of his right to maintain thia action, the plaintiff' relies on the clause in the writ of sequestration, whereby the bishop gives to the sequestrator " full power and authority, by all lawful ways and means, to publish this our sequestration, and by virtue thereof to levy, ask, sue for, recover, arid receive into his hands and possession, all and singular the said rents, tithes, oblations and obventious, fruits, issues, and profits." But that is no more than an authority to him to do these acts as the servant or bailiff of the bishop, who, in law, under the original writ of sequestrari facias, himself takes possession. The power to "sue for" the rents, &c., is to sue in the name of the party interested, or of the bishop, not in his own name. The provision contained in the writ for payment of the charges and disbursements of the cure, and for the retention of the re-[44]-maiuder of the profits " for yourself," is also relied on : but it is evident from the concluding clause, which provides that the sequestrator shall render to the bishop "a true and just account of what he shall receive in this behalf during the sequestration, and until tha same shall be released," that for all these matters he is to be accountable to the bishop, whose bailiff he is. Accordingly, he may be dismissed, and required to render his:accounts at a moment's notice. This appears from the form of a relaxation given in Gibson's Codex, vol. 2, p. 1497. The bishop, under a writ of sequestrari facias, is only an ecclesiastical sheriff, and the sequestrator is his steward or bailiff. The Court than called on Baiiies, Addison, and J. Henderson, in support of the rule. There is a great difference between the character of a sequestrator and that of an ordinary bailiff, who is merely to receive the profits and hand them over to his principal. A sequestrator has, as well as common law as by statute, a much more extensive authority. He has an interest coupled with his agency. He is personally bound to provide for the charges on the living, for repairs and other outgoings of a similar nature : [^infield v. Wutkms (2 Phillim. 1); and also, by the express provisions of the stat. 1 & 2 Viet, c. 106, for payment of the curate's stipend. For these purposes he must be invested with far greater powers to raise the necessary funds than an ordinary bailiff. These duties and liabilities create in him an interest in his character of sequestrator, sufficient to entitle him to maintain this action, independently of his own personal interest to receive the residue to his own use. An administrator for limited purposes, who stands very much in the same position as a sequestrator, was formerly considered as a mere bajliff, and therefore not entitled to sue in his own name ; [45] but it is now held that he may do so: Williams on Executors, 310. He is a party tilling a mere fiduciary character, auijl not having the power, in some cases, even of distributing the assets; ya't his interejst is considered sufficient for the purpose of suing debtors to the estate. Apd the general rule of law is, that wherever liabilities or active duties are imposed u^on a party in...
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