Hopkins, Creditors' Assignee of the Estate of the Rev. A. W. Gregory, a Bankrupt, against Clarke
| Jurisdiction | England & Wales |
| Judgment Date | 22 January 1864 |
| Date | 22 January 1864 |
| Court | Court of the Queen's Bench |
English Reports Citation: 122 E.R. 673
IN THE COURT OF QUEEN'S BENCH AND THE EXCHEQUER CHAMBER
Affirmed in Exchequer Chamber, 5 B. &. S. 753.
[836] hopkins, Creditors' Assignee of the Estate of the Rev. A. W. Gregory, a Bankrupt, against clarke. Friday, January 22d, 1864.-Ecclesiastical benefice. Sequestration. Bankruptcy. Bankrupt Law Consolidation Act, 1849, 12 & 13 Viet. c. 106, s. 184. Bankruptcy Act, 1861, 24 & 25 Viet. c. 134, s. 135.-On the 30th October, 1862, a sequestrari facias, at the instance of the defendant, a judgment creditor of G., issued to the Bishop of W., and on the 31st, at 9.38 a.m., was lodged at the office of the Bishop's Registrar. On the 1st November a sequestration issued, which was published on the 2nd. On the 31st October, G. petitioned for adjudication of bankruptcy against himself, and his petition was filed on the same day at 12.25 p.m.; on the 17th November the plaintiff was appointed creditors' assignee, and on the 9th January, 1863, applied for a seques- K. B. li.-22 674 HOPKINS V. CLARKE 4 B. * 8. 837. tration, which issued on the 10th, and was published on the 18th. Held,- 1. That the profits of the benefice did not pass to the plaintiff under The Bank ruptcy Act, 1861, 24 & 25 Viet. c. 134, until be had obtained a sequestration.- 2. That the defendant was not "a creditor having security for his debt" within sect 184 of The Bankrupt Law Consolidation Act, 1849, 12 & 13 Viet. c. 106, which disentitles such a creditor from receiving more than a rateable part of his debt.-3. And therefore that the defendant was entitled to the profits of the benefice as against the plaintiff. [Affirmed in Exchequer Chamber, 5 B. &. S. 753.] The plaintiff sued the defendant for money which he had received under a sequestration of the benefice of the Eev. Arthur William Gregory, a bankrupt, issued at the suit of the defeadant, but which the plaintiff claimed under a sequestration of later date issued at his instance, as creditors' assignee of the bankrupt; and by order of a Judge the fallowing case was stated for the opinion of this Court, without pleadings. The Rev. Arthur William Gregory was vicar of the vicarage and parish church of Corley, in the county of Warwick, and in the diocese of the Lord Bishop of Worcester. On the 29th October, 1862, judgment was signed by the now defendant in an action in this Court against the Eev. Arthur Wm. Gregory for 9841. 17s. 6d., [837] balance of principal and interest due to him, and a writ of fieri facias sued out upon that judgment, and lodged with the sheriff of the county of Warwick. On the 30th October the sheriff made a return to the writ of nulla bona, and that the defendant was a beneficed clerk. On the same day a writ of sequestrari facias, directed to the Bishop of Worcester, duly issued out of this Court. At 38 minutes past 9 in the morning of the 31st October the writ was lodged at the office of the Bishop's Registrar in Worcester. On the 1st November, a writ of sequestration duly issued upon the writ, addressed to Alfred Catchmayd Hooper. On the 2nd November (being Sunday) the sequestration was published by affixing the same on the principal outer door of the pariah church of Corley, previously to and during Divine service on the Sunday morning. On the 31st October, the Rev. Arthur Wm. Gregory duly petitioned for adjudication of bankruptcy against himself. The petition was duly filed of record at 25 minutes past 12 o'clock of the same day. The plaintiff was, on the 17th November, duly appointed creditors' assignee of the estate of the Rev. Arthur Wm. Gregory. On the 9th January, 1863, the plaintiff applied for a sequestration of the profits of the benefice of the Rev. Arthur Wm. Gregory. On the 10th January a writ of sequestration issued accordingly, addressed to Alfred Catchmayd Hooper. On the 18th January, (being Sunday) the sequestration was duly published by affixing it on the principal outer door o( the parish church of Corley in manner aforesaid. The defendant received, from time to time, sums of money under the sequestration issued upon the judgment in the action of Clarke v. Gregory. [838] The plaintiff claimed to be entitled, as creditors' assignee of the estate of the Rev. Arthur Wm. Gregory, to the profits of the benefice either from the time of the bankruptcy or from the publication of the sequestration, as part of the bankrupt's estate. The defendant contended that bis sequestration was entitled to priority. The questions for the opinion of the Court were, first, Whether the plaintiff, as assignee, was entitled to the profits of the benefice as against the defendant; and second, If so, whether from the date of the bankruptcy or from the publication of the plaintiff'a sequestration. Hellish (Wills with him), for the plaintiff.-Since The Bankruptcy Act, 1861, 24 & 25 Viet. c. 134, a clergyman may become bankrupt; and sequestration of the profits of his benefice may be obtained under sect. 135. At the time of the bankruptcy, the sequestration at the instance of the defendant was not issued or published. The validity of a sequestration dates from publication, and it does not bind the benefice from tb time of lodging a writ of levari facias with the registrar of the Bishop; Doe d. Morgan v. Muck (3 Camp. 447), Waite, v. Bishop (1 Cr. M. & R. 507; 3 Dowl. P. C. 234); in which the question was between the incumbent and the sequestrator or the tenant of the glebe. In Bennett v. Apperley (6 B. & C. 630), where the question was between two sequestrators, Lord Tenterden said, p. 634, " It may be admitted, that until publication, no person's rights can be interfered with ;" though Bayley J. said, 4 a ft 8. 839. HOPKINS V. CLARKE 675 " I think that the property is bound from the time when the sequeatrator is appointed, and that the publication of notice is [839] only necessary in order to give priority against conflicting rights." But that was no more than a dictum. Assuming that the sequestration of the defendant did not become binding until after the bankruptcy, sect. 135 gives priority to the assignees over the sequestration of a judgment creditor. By that section, " If any bankrupt be a beueficed clergyman the assignees may apply for and obtain a sequestration of the profits of the benefice of such bankrupt, which profits shall form part of the bankrupt's estate, and be applied accordingly; and the certificate of appointment of such assignees shall be a sufficient authority for the granting of such sequestration, without any writ or other proceeding 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 bankrupt: Provided always, that the sequestrator shall allow out of the benefice to the bankrupt whilst he performs the duties of the parish or place sueh an annual sum, payable quarterly, as the Bishop of the diocese in which the benefice is situated shall direct; and it shall be lawful for the Bishop to appoint to such bankrupt such or the like stipend as by law he might have appointed to a curate duly licensed to serve such benefice in case the bankrupt had been non-resident." It is contrary to principle that, after the date of a petition and adjudication in bankruptcy, any creditor should be able to do an act affecting the property of the bankrupt as against the assignees. And, although it is inconvenient that the tithe commutation rent charge should become the property of the assignees, the words " which profits shall form part of the bankrupt's estate," which are not [840] found in any insolvent Act, justify that construction. In Bishop v. Hatch (1 A. & E. 171) it was held that the assignees of an insolvent clergyman did not acquire any right to his benefice or the income of it, until they had obtained sequestration, but that decision depended upon the Insolvent Debtors Act, 7 G. 4, c. 57, a. 28, which expressly says that nothing in the Act shall extend to entitle the assignee to the income of the benefice. The Bankruptcy Act, 1861, contains no such clause; and under sect. 135, the profits " shall form part of the bankrupt's estate," which accordingly vests in them. The clause as to the issuing of the sequestration merely directs the form and mode of getting at the profits. Further, sect. 184 of The Bankrupt Law Consolidation Act, 1849, 12 & 13 Viet, c. 106, which is not one of the sections repealed by the recent Act (see stat. 24 & 25 Viet. e. 134, s. 230, and Schedule (G.)), and is to be read as part of it, applies to the present case: it enacts, " That no creditor having security for his debt, or having made any attachment in London or in any other place, by virtue of any custom there used, of the goods and chattels of the bankrupt, shall receive upon any such security or attachment more than a rateable part of such debt, except in respect of any execution or extent served and levied by seizure and sale upon or any mortgage of or lien upon any part of the property of such bankrupt before the date of the fiat or the filing of a petition for adjudication of bankruptcy." A sequestration is an incumbrance affecting the estate within stat. 18 G. 2, c. 20, s. 1, which prescribes the qualification of a justice of the peace; Pack v. Tarpley (9 A. & E. 468); and, according to that decision, a creditor who [841] has obtained judgment and issued a writ of sequestration ia a creditor having security for his debt within sect. 184, and not entitled to receive more than a rateable part of his debt: he...
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