Hawkins v Gathercole
| Jurisdiction | England & Wales |
| Judgment Date | 24 January 1855 |
| Date | 24 January 1855 |
| Court | High Court of Chancery |
English Reports Citation: 43 E.R. 1129
BEFORE THE LORDS JUSTICES.
S. C. 24 L. J. Ch. 332; 3 Eq. Rep. 348; 1 Jur. (N. S.), 481; 3 W. R. 194. As to intent and meaning of Legislature in framing Acts of Parliament (6 De G. M. & G. 21), see Bishop of Norwich v. Pearse, 1868, L. R. 2 A. & E. 284; Garnett v. Bradley, 1878, 3 App. Cas. 950; Ex parte Chick, 1879, 11 Ch. D. 740; Bradlaugh v. Clarke, 1883, 8 App. Cas. 362; Seward v. "Vera Cruz," 1884, 10 App. Cas. 68; In re Leavesley [1891], 2 Ch. 9; Eastman Photographic Materials Company v. Comptroller-General of Patents [1898], A. C. 575.
Reports of CASES HEARD and DETERMINED by the LORD CHANCELLOR and the COURT OF APPEAL IN CHANCERY. 1854-56. By J. P. DE GEX, S. MACNAGHTEN, and A. GORDON, Esqiu, Barristers - at - Law. 1857. Vol. VI. [NoTE. - The Cases in this Volume, before the lord chancellor are reported by Messrs, " macnaghten & Gk RDONj and those before the Lords Justices of the Court of Appeal by Mr. de gex.] 7 [1] hawkins v. gathercole. Before the Lords Justices. Nov. 23, 24, 25, 1854; Jan. 19, 24, 1855. [S. C. 24 L. J. Ch. 332; 3 Eq. Eep. 348; 1 Jur. (N. S.), 481; 3 W. E. 194. As to intent and meaning of Legislature in framing Acts of Parliament (6 De G. M. & G. 21), see Bishop of Norwich v. Pearse, 1868, L. E. 2 A. & E. 284; Garnett v. Bradley, 1878, 3 App. Gas. 950; Ex parte Chicle, 1879, 11 Ch. D. 740; Bradlaugh v. Clarke, 1883, 8 App. Cas. 362; Seward v. " Vera Crus," 1884, 10 App. Cas. 68; In re Leavesley [1891], 2 Ch. 9; Eastman Photographic Materials Company v. Comptroller-General of Patents [1898], A. C. 575.] A registered judgment against a clergyman doea not create a charge upon his benefice entitling the judgment creditor to the appointment of a receiver under 1 & 2 Viet, c. 110. These were two appeals from a decree of Vice-Chancellor Kindersley, founded in principle upon a decision of Vice-Chancellor Lord Cranworth, granting an interlocutory injunction in the same case. The case is reported on the application for an injunction in the first volume of Mr. Simons's New Series of Eeports (page 63). The facts were shortly these :- By an indenture dated the 8th of August 1845, the Eev. N. A. Gathercole made a mortgage in fee to the Plaintiff Mr. Hawkins, for securing the repayment of 24,000 with interest. At the same time, Mr. Gathercole executed a warrant of attorney for 49,000 on which judgment was entered up and registered under the provisions of the statute 1 & 2 Viet. c. 110, on the 5th of September in the same year. Five years afterwards the [2] judgment was re-registered. Shortly afterwards, Mr. Gathercole became, upon his own presentation, vicar of Chatteris Nuna, in the isle of Ely. In September 1849, Mr. Hawkins issued a writ of fieri facias for the recovery of arrears of interest on the debt, but the sheriff being unable to raise the full amount a sequestration was issued, under which the remainder of the arrears of interest was obtained. Other judgment creditors afterwards issued sequestrations against the benefice. Mr. Hawkins then filed the bill in the present suit against Mr. Gathercole, the Bishop of Ely, and the other judgment creditors, praying that the C. xxin.-36* 1130 HAWKINS V. GATHERCOLE 6DEG. M.&G. S. Plaintiff might be declared entitled to have his debt and interest paid in priority to the judgments of the other judgment creditors, and that the Plaintiff's judgment might be declared a charge upon the vicarage, and that the bishop might be restrained from executing the sequestrations of the other creditors, and that a receiver might be appointed of the rents, tithes and rent-charges belonging to the vicarage. It was upon the motion for the injunction and receiver thus prayed for that Lord Cranworth, then Vice-Chancellor, on the 21st of November 1850, held that the judgment was a charge upon the living, under the 1 & 2 Viet. c. 110, s. 13, (1) and made an order which, [3] after referring it to the Master to appoint some proper person to receive, collect and get in the corn rents, rents [4] in lieu of tithes, and all other rents of what kind soever, offerings, fruits, oblations, obventions, pensions, portions, [6] and all other the commodities and emoluments, hereditaments and premises belonging or appertaining to the vicarage of Chatteris Nuns, and to allow him a proper salary for his care and pains therein, and after directing the persons respectively liable to make payments in respect of the matters aforesaid, to make such payments to such receiver, directed that the receiver should provide for the service of the church of the said parish, and make and pay a proper allowance and remuneration to the persons serving the same, and the receiver was to be allowed what he should so pay in passing his accounts before the said Master. And it was ordered, that the receiver should from time to time pass his accounts before the Master, and pay the balances which should be reported due from him (after paying such allowance and remuneration for the service of the said church as aforesaid), into the bank, with the privity of the Accountant-General. And it was ordered, that an injunction should be awarded to restrain the Defendant, the Bishop of Ely, from executing the several writs of sequestrari facias in the pleadings mentioned, and issued against the vicarage and parish church aforesaid, by the Defendants whose judgments were subsequent to the Plaintiff's. And it was ordered, that an injunction be awarded to restrain those Defendants from procuring to be executed or otherwise proceeding with the writs of sequestrari facias issued on their several judgments in the pleadings mentioned, and from further prosecuting or from taking or permitting to be taken any proceeding 6] upon the said judgments against the said vicarage and parish church, and from receiving the rents, tithes and rent-charges of the said vicarage, or any part thereof, until the hearing of the cause or further order. On the 2d of July 1852, Vice-Chancellor Kindersley, on a motion to commit a judgment creditor, named Carrack, for contempt, in issuing a sequestration while the property was in the hands of the receiver, directed that Mr. Carrack should pay the costs of the application, but that (Mr. Carrack submitting to deal with his sequestration as the Court should direct, and undertaking that the sequestrator in that character should not receive, collect or levy any portion of the issues or profits of the living, without the leave of the Court) no further order should be made on the motion. On the 17th of August 1852, the Vice-Chancellor made an order on the petition of Mr. Gathercole, directing the receiver to pay to the Petitioner 150 per annum so long as he continued to perform or provide for the services of the church. On the cause coming on to be heard, the Vice-Chancellor considered himself bound by the decision of Lord Cranworth, arid made a decree, declaring among other things that the Plaintiffs judgment was a charge on the corn rents and other profits of the living (using the same words as those of the order for a receiver), and decreeing consequential relief. The other judgment creditors appealed from this part of the decree. Mr. Baily and Mr. G. Simpson, in support of one of the petitions of appeal. Mr. GifFard and Mr. Bonham Carter, in support of the other. The Vice-Chancellor considered himself bound by the decision upon the motion for an injunction and a re-[7]-ceiver. The question was however in a different position before His Honour from that in which it came before Lord Cranworth on the motion. It was sufficient ground for the order then made that there was a substantial question to be tried. Moreover, it had not then occurred to the counsel who argued the case to call the attention of the Court to the similarity of the language of the Statute of Frauds to that of the 1 & 2 Viet. c. 110. Now the words of the Statute of Frauds (29 Car. 2, c. 3, s. 10) are these :- 6DEO.M.40.8. HAWKINS V. GATHERCOLE 1131 " It shall and may be lawful for every sheriff or other officer to whom any writ or precept is or shall be directed, at the suit of any person or persons, of, for and upon any judgment, statute or recognizance hereafter to be made or had, to do, make and deliver execution unto the party in that behalf suing, of all such lands, tenements, rectories, tithes, rents and hereditaments, as any other person or persons be in any manner of wise seised or possessed, or hereafter shall be seised or possessed, in trust for him against, whom execution is so sued, like as the sheriff or other officer might or ought to have done, if the said party against whom execution hereafter shall be so sued, had been seised of such lands, tenements, rectories, tithes, rents or other hereditaments of such estate as they be seised of in trust for him at the time of the said execution sued; which lands, tenements, rectories, tithes, rents and other hereditaments, by force and virtue of such execution shall accordingly be held and enjoyed freed and discharged from all incumbrances of such person or persons as shall be so seised or possessed in trust for the person against whom such execution ishall be sued." If therefore these words must necessarily be taken in [8] their utmost generality, the Courts ought to have held that benefices with cure might have been taken in execution before the statute; for the Statute of Frauds assumes that " rectories and tithes of which the debtor is seised may be taken in execution." The contrary, however, has been long settled, Cattle v. Warrington (5 B. & Ad. 447); according to that ound rule long adopted in the construction of statutes, that if there is something to satisfy general words in them, and it would be contrary to public policy to apply them in the full extent of their generality, they will be taken to have been used in a restricted sense. So the law will not allow a statute to revoke or alter by construction of...
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