Josiah Bartlett, Clerk against George Henry Kirwood, Clerk
| Jurisdiction | England & Wales |
| Judgment Date | 08 November 1853 |
| Date | 08 November 1853 |
| Court | Court of the Queen's Bench |
English Reports Citation: 118 E.R. 956
COURTS OF QUEENS BENCH AND THE COURT OF EXCHEQUER CHAMBER.
S. C. 2 C. L. R. 253; 23 L. J. Q. B. 9; 18 Jur. 173.
josiah bartlett, Clerk against george henry kirwood, Clerk. Tuesday, November 8th, 1853. In proceedings, under stat. 1 & 2 Viet. c. 106, for the sequestration of a benefice for non-residence, it is not necessary that the Bishop's monition, under sect. 54, should be preceded by a citation or other warning to the incumbent.-Where the incumbent, in answer to such monition, sends a return assigning an excuse for non-residence which the Bishop considers insufficient, that is a sufficient hearing of the incumbent to authorize the Bishop to make an order upon the incumbent to return into residence within thirty days. -Where the incumbent, being served with such order, sends to the Bisbop, upon affidaTit, an excuse for not obeying the order, which the Bishop considers insufficient, that is a sufficient hearing of the incumbent to authorize the Bishop to sequestrate the benefice after the lapse of the thirty days.-Under sect. 58 a benefice becomes void if it remain, for the space of a year, under sequestration for non-residence ; the year commencing from the date of the decree of sequestration ; the case not falling within sect. 120, which provides that for all purposes of the Act, except as therein otherwise provided, the year shall commence on 1st January and be reckoned to 31st December, both inclusive. [S. C. 2 C. L. R. 253; 23 L. J. Q. B. 9; 18 Jur. 173.] This was an action of assumpsit, commenced llth February 1852, to recover 3501. for money had and received. Plea: Non assumpsit. Issue thereon. On the trial, before Lord Campbell C.J., at the Middlesex Sittings after Hilary Term 1853, a verdict was found for the plaintiff for 3501. damages, subject to the opinion of this Court upon a case which, so far as regards the points discussed, was as follows. On 1st November 1846, there was, and still is, a district chapel at Ivington called 3H,&BL.7. BAKTLRTT r. KIBWOOD 957 Saint John's, in the parish of Leominster, in Herefordshire. The chapel [772] then was and still is in the diocese of Hereford. It then was, and still is, a perpetual curacy ; and, as such perpetual curacy, it then had and still has annexed and of right belonging to it a certain annual stipend of 1001., and also certain fees, dues, profits and emoluments, amounting yearly to the aum of 61. The plaintiff then had been duly presented and nominated by the patron of the said curacy to the Bishop of Hereford, and had thereupon then been duly and canonically licensed to the said curacy, and had then been duly and canonically instituted, and duly and canonically, by the said Bishop, inducted into and invested with all the rights, members and appurtenances thereto belonging, and, amongst other things, to all the fees, dues, profits and emoluments aforesaid. And he was then, and still is, perpetual curate of the said benefice, and entitled to all the fees, &c., and all rights, members and appurtenances annexed to and belonging to the said curacy, if the proceedings hereinafter mentioned do not deprive him thereof. On 16th November 1846, the plaintiff was sentenced by this Court to two years' imprisonment for a misdemeanour, that is to say a libel: and, on the same day, was committed to prison : and he remained and continued in prison, under such sentence, until and upon 16th November 1848 ; during which time the said cure was duly served by a curate acting in the premises, previously appointed by the plaintiff and approved of by the Bishop. On 22d December 1846, the Bishop of Hereford caused to be issued, under his hand and seal, and duly served upon the plaintiff, the following monition. "Thomas, by Divine permission, Lord Bishop of Hereford: To Josiah Bartlett, clerk, incumbent or curate [773] of the perpetual curacy of" &e., " within our diocese of Hereford, greeting. It appearing to us that you, the said J. Bartlett, being a spiritual person holding a benefice within our said diocese, and not having a licence to reside elsewhere, nor having any legal cause of exemption from residence, do not sufficiently, according to the true intent and meaning of an Act made" &c. (I & 2 Viet. c. 106, "To abridge the holding of benefices iti plurality, and to make better provision for the residence of the clergy "), " reside on such benefice. We do there upon, in pursuance of the said Act, by this our monition, issued to you as such spiritual person, require you forthwith to proceed to and reside in such benefice, and perform, the duties thereof, and to make a return to this our monition within forty days after the issuing hereof. Given under our hand and episcopal seal, this 22d day of December, in the year of our Lord 1846, and in the 10th year of our consecration. " thomas hereford (l.s.)." On 28th January 1847, the plaintiff made and transmitted to the Bishop the following return to the said monition. "To the Right Eeverend Thomas, by Divine permission, Lord Bishop of Hereford, greeting. " I, Josiah Bartlett, clerk, incumbent of " &c., " diocese of Hereford, having received your Lordship's monition, requiring me to reside on my benefice aforesaid, do hereby, in reply or return to such monition, make answer and say: That there is no house of residence belonging thereto. And I further say, as advised, that I have a legal cause of exemption from residence, by [774] reason of my forcible detention" &c. The return than referred to the sentence of this Court, impugning the same, and adding that it was the plaintiffs intention to appeal against the judgment, and that he had applied for the Attorney General's fiat for a writ of error; and that, if the Bishop should issue his order for the plaintiff's return into residence, the plaintiff would; apply to this Court for a prohibition. The return further complained of the mode in which another charge against plaintiff had been entertained by the Bishop. There was not, nor is there, any house of residence belonging to the benefice. The plaintiff had not in fact resided on the benefice since 16th November 1846; he having from that day, until and upon 16th November 1848, been confined as a prisoner in the Queen's Prison, under the sentence aforesaid. On 10th March 1847, the Bishop caused to be issued, under his hand and seal, and to be duly served on the plaintiff, the following order to reside. "Thomas, by Divine permission, Lord Bishop of Hereford. " To Josiah Bartlett, incumbent or curate " &c. The order recited the monition, and service thereof, and the return to it. " And whereas the reasons stated by you 958 BARTLETT V. KIRWOOD 2 EL. & BL. 775. in the said...
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