Pack, qui tam, Company, against Tarpley, Clerk
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1839 |
| Date | 01 January 1839 |
| Court | Court of the Queen's Bench |
English Reports Citation: 112 E.R. 1289
IN THE COURT OF QUEEN'S BENCH
S. C. 1 P. & D. 478; 2 W. W. & H. 88; 8 L. J. M. C. 93.
9AD. &B. 9. PACK V. TAEPLEY 1289 pack, qui tam, &0., against tarpley, Clerk. 1839. Where the qualification of a justice of the peace is an ecclesiastical benefice, a sequestration, issued at the suit of a creditor, under which poasesaion has been duly taken, and the profits received, is an "incumbrance affecting the estate" within stat. 18 G. 2, c. 20, s. 1. In a penal action against the incumbent for acting as a justice without being qualified, the writ of sequestrari facias is admissible in evidence against him, although the judgment roll contains no entry of an award of the writ. Upon issuing such, sequestration against a vicar, the bishop licensed him as a stipendiary curate ; directed the sequestrator to pay him 1201. a year as such ; and assigned to him the vicarage house and grounds as a residence, which were together worth above 1001. a year: Held, 1. That the salary and the grounds, being enjoyed by assignment of the bishop, and not simply as vicar, were no qualification within the above statute: 2. That the vicar, being bound to reside notwithstanding sequestration, occupied the house by right as vicar, and not by the bishop's assignment, which quoad hoc was merely void ; but that such house, unless proved to be alone worth 1001. a year, was no qualification. [S. C. 1 P. & D. 478; 2 W. W. & H. 88; 8 L. J. M. C. 93.] Debt upon stat. 18 G. 2, c. 20, for the penalty of 1001., for acting as a justice of the peace without being duly qualified. Plea. That at the time of so acting defendant had in law, to and for his own use and benefit, in possession, a freehold estate for life in lands, tenements, or hereditaments lying and being in that part of Great Britain called England, of the clear yearly value of 1001. over and above what would satisfy and discharge the incumbrancea that affected the same, and over and above all rents and charges payable out of or in respect of the same. Verification. The replication traversed the allegation in the plea. A verdict was taken subject to a special case. On the trial it was proved that, at the time when defendant acted as a justice of the peace, the vicarage of Floore, iu the county of Northampton, of which place defendant was vicar, was of the annual value of 5001.; but that on the 8th of April 1834, a writ of sequestrari [469] facias was issued out of the Court of King's Bench to the Bishop of Peterborough against defendant for levying the sum of 22701. Os. 6d. out of the vicarage. This writ purported to issue upon the return of the Sheriff of Northamptonshire to a writ of fieri facias against the goods of defendant in a cause of Watkins v. Tarpky (a). An examined copy of the fieri facias, upon which the writ was issued, with the sheriff's return indorsed, was given in evidence. An examined copy of the judgment roll was also put in evidence, from which it appeared that there was no entry, upon the roll, of the sheriff's return or of the award of the writ of sequestrari faciaa, but merely an award of execution in the usual form. It being objected that, under these circumstances, the writ of sequestration could not be read in evidence, it was agreed that this objection should make part of the case. Upon this writ the bishop issued a sequestration, which was published on 13tb April 1834, and possession of the vicarage under it was taken on the next day (5). (a) The writ of seq. fac. was in form similar to that given iu Tidd's Practical Forms, p. 433, 6th ed. (V) The form of the warrant under the writ was as follows :-" Herbert, by divine permission Bishop of Peterborough, to Thomas Scriven, of the town of Northampton, in the county of Northampton, Esquire, greeting. Whereas we have received a writ from our Sovereign Lord the King's Majesty, issuing out of the Court of King's Bench at Westminster, in the words following [reciting the writ of seq. fac.] ; we, therefore, the bishop aforesaid, by virtue of His Majesty's writ before recited, and in obedience to the same, do decree all and singular the rents, tithes, oblations, obventions, fruits, issues, profits, and all other goods and emoluments whatsoever to the said vicarage and parish church of Floore, in the said county of Northampton, and within our said diocese, and all arrears of the same, to be sequestered, and by these presents do sequester the same, and also do constitute, appoint, and make you, the said Thomas Scriven, sequestrator of all and singular the rents, tithes, oblations, obventions, fruits, issues, profits, and all other goods and emoluments whatsoever to the said vicarage K. B. xli.-41* 1290 PACK V. TARPLBY 9 AD. ft E. 470. [470] The sequestrator proved that he bad not applied any part of the profits of the living to thia sequestration. Since taking possession he had received the rents and profits of the vicarage, not under the above writ and warrant of sequestration, but under a previous writ and [471] warrant of sequestration against the ecclesiastical goods of defendant in another cause, which were not given in evidence. Defendant had performed the clerical duties of the vicarage since the sequestration, and had the gum of 1201. a year assigned to him by the bishop for so doing, out of the proceeds of the vicarage, which sum he received from the sequestrator accordingly. The bishop's license was in the usual form, and directed the sequestrator to pay defendant 1201. a year for serving the church as stipendiary curate, and assigned to defendant the vicarage house as a residence. Defendant continued to occupy the vicarage house and grounds, which were proved to be worth above 1001.(a). An actuary called by defendant gave the following evidence, which was objected to, and the objection made part of the case, viz :-that the value of the defendant's life interest in the vicarage, estimating the living at 4701. per annum and the house at 1001. per annum, was 54251.; excluding the house, 46381. The surplus of the first estimate, after deducting the sequestration, was 31551.; the surplus of the second, after the like deduction, was 23681. For the lowest of these sums the defendant might purchase an annuity of more than 1001. a year for his life. It was proved that the sequestration poundage amounted, per annum, to 221. 10s., being at the rate of 5 per cent, on 4501.; that the repairs amounted, per annum, to 201.; [472] the land-tax to 151. If these three sums, taking them as amounting to 501., were to be deducted, and also the stipend of 1201. per annum, from the sum of 4701. (the annual value of the belonging or appertaining, and all arrears of the same ; requiring and commanding you in His Majesty's name, that, immediately upon receipt hereof, you do sequester, take, collect, and receive into your hands, possession, and safe custody, all and singular the rents, tithes, oblations, obventions, fruits, issues, profits, and all other goods and emoluments whatsoever to the said...
To continue reading
Request your trial
-
Hopkins, Creditors' Assignee of the Estate of the Rev. A. W. Gregory, a Bankrupt, against Clarke
...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......
-
Harding v Hall and Others
...the contract.] In Williams v. Millington (1 H. Bl. 81), the Court put it on the ground of his having an interest. In Pack v. Tarpley (9 Ad. & E. 468; 1 P. & D. 478), Lord Denman, C. J., lays it down that a sequestrator may let the lands. That is a power which is not possessed by a bailiff; ......
-
Powell against Hibbert
...Bluck (3 Campb. 447), as to this point, is confirmed by Lord Tenterden in Bennett [134] v. Ayperley (6 B. & C. 630). In Pack v. Tarpley (9 A. & E. 468), a sequestration was (a)1 A question arose, whether the sequestration was under the official seal of the bishop, or under his private seal ......
-
Phelps v St John, Clerk
...W. H. Cooke was beard in support of the rule.(a)2 The following authorities were cited:-Powdl v. HMut (15 Q. B. 129), Pack v Taipley (9 A & E. 468), Rogers' Ecclesiastical Law, tit. Sequestration, 900, 2nd edit, Phillips v. Beilcdey (5 Dowl P C. 279), Dau^on v SytnonJi (12 Q. B 830), Watkms......