Powell against Hibbert
| Jurisdiction | England & Wales |
| Judgment Date | 02 May 1850 |
| Date | 02 May 1850 |
| Court | Court of the Queen's Bench |
English Reports Citation: 117 E.R. 407
QUEEN'S BENCH.
S. C. 19 L. J. Q. B. 347; 14 Jur. 866.
[129] powell against hibbert. Thursday, May 2d, 1850. Before stat. 6 & 7 W. 4, c. 77, the parish of H. was in the archdeaconry of Coventry in the diocese of Lichfleld and Coventry. In 1836 an Order of Council issued, transferring all that archdeaconry to the diocese of Worcester, in compliance with the recommendation of the commissioners under the above statute, and directing that the Bishop of Lichfield and Coventry and his successors should thenceforward be (h) Pashley here referred to Bex v. Eriswell, 3 T. R. 707. (a) " Neither shall any conviction, except as aforesaid" (namely "for an offence punishable at discretion by fine or imprisonment, or when the penalty awarded shall be more than 31."), "be removeable by certiorari or bill of advocation into any Court whatever." 408 POWELL V. HIBBEET 15 Q. B. 130. styled Bishops of Licbfield. J. became Bishop of Lichfield; and, afterwards, under stat. 1 & 2 Viet. c. 110, s. 55, a writ in the nature of a levari facias issued, directed to J., reciting that the incumbent of H. had petitioned the Insolvent Debtors' Court, and commanding J. to sequester the vicarage of H. for the debts of the incumbent, which J. accordingly did, appointing a sequestrator. Held that, under stat. 10 & 11 Viet. c. 98, s. 8 (which passed after the sequestration was published), the sequestration, being an act done under the authority of J., the bishop of the diocese from which H. had been transferred, was made good, and that it continued in force till the debt was levied, though after 1st November, 1847, and though sect. 8 is confined to acts done before. And semble, per Lord Campbell C.J. and Erie J, (dubitantibus Patteson and Wightman Js.), that the sequestration was also made good by sect. 20 of stat. 6 & 7 W. 4, o. 77, which (continued to a time later than the date of the sequestration) directs that no change of boundary, &c. under that Act shall affect the jurisdiction of any of the Ecclesiastical Courts. Held, also, that the incumbent could not sue a tenant for use and occupation of the glebe, had during the period of the sequestration ; and that this defence arose on nunquam indebitatus. [S. C. 19 L. J. Q. B. 347; 14 Jur. 866.] Debt for use and occupation, and on an account stated. The particulars claimed 121. 10s., being half a year's rent, due at Lady-Day 1848, for the use and occupation of a portion of the glebe of the vicarage of Hillmorton, in Warwickshire. Plea : never indebted. Issue thereon. On the trial, before Maule J., at the Northamptonshire Spring Assizes, 1849, the plaintiff proved that he was vicar of the parish ; that the land was part of the glebe; and that the defendant was tenant for the time in question. The. defendant put in a sequestration, dated 29th May 1843, purporting to be addressed by James (a), "Lord Bishop of Lichfield," to George Harris, reciting a writ of the Court of Queen's Bench, addressed to the bishop, dated 29th April 1843; which writ recited that the plaintiff had petitioned the Insol-[130]-vent Debtors' Court under stat. 1 & 2 Viet. c. 110, and that assignees had been appointed on 19th May 1841; that plaintiff, at the time of his petitioning and thence hitherto, was " a beneficed clerk, to wit vicar of the vicarage and parish church of Hillmorton, in the county of Warwick, and in your diocese:" and that the assignees had applied for a sequestration ; the writ therefore commanded the bishop: " That you enter into the said vicarage and parish church of Hillmorton, and take and sequester the same into your possession, and that you hold the same in your possession until you shall have levied thereout 20001., the amount of the debts due or growing due from the said John Giles Powell at the time of making the said order vesting his estate," &c., and "described in the said schedule, and remaining due and unsatisfied, of the rents, tithes," &c., " thereof, and other ecclesiastical goods of tho said J. G. P. in your diocese, to be rendered unto the said " assignees: return to be made immediately after execution. The sequestration then proceeded : " We, lawfully proceeding in obedience thereto, have decreed to be sequestered, and by these presents do sequester, all and singular the rents, tithes," &c., "and other ecclesiastical goods whatsoever, of the said J. G. P., belonging to the said vicarage of Hillmorton, in the county of Warwick, and within our diocese of Lichfield; and make and appoint you, the said George Harris, sequestrator thereof, giving you hereby full power," &c., " to publish this our sequestration, and by virtue thereof to levy," &c., "and receive into your hands and possession all and singular the said rents," &c., "as need shall be, to dispose of the same, to the end that thereout the charges of duty and serving the cure in the church," &c. (by [131] a minister to be nominated by the Bishop of Worcester and his successors, with a stipend), "and all other burdens," &c. " incumbent on the said vicarage," &c., " may in the first place be paid and discharged by you, and the remainder rendered to the said " assignees " in the said writ mentioned, according to the tenor and effect thereof." "And always provided that you, the said G. H., shall once in every year make and render to us and our successors, by filing the same in the registry of our Court at Lichfield, a true and just account of what you shall receive and discharge in this behalf during this our sequestration, until the same (a) Dr. Bowstead. 1 J. B. 182. POWELL V. HIBBBRT 409 shall be released. In...
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