deserve not excommunication; that both, in practice at least, are temporary; both also terminated, either at a certain time when inflicted for such time, or upon satisfaction given to the judge when inflicted until something be performed which he has enjoined: and, lastly, both (if unduly performed) are attended with further penalties; that of the clergy, with irregularity, if they act in the meantime; and that of the laity (as it seems) with excommunication, if they either presume to join in communion during their suspension, or do not in due time perform those things which the suspension was intended to enforce the performance of (»). necessary. By the ancient canon law, sentence of suspension ought not Previous to be given without a previous admonition; unless where the admonition offence is such, as in its own nature requires an immediate suspension and if sentence of suspension, in ordinary cases, be given without such previous admonition, there may be cause of appeal (o). and acquittal The following is extracted from the case of Johnstone V. Intermediate Sutton (p), and there said to be taken from a manuscript book profits bein the handwriting of Sir E. Simpson, formerly king's advocate tween charge and judge of the admiralty. "Offence-Undoubted rule in go to person admiralty and ecclesiastical courts, that persons suspended for acquitted. an offence supposed, of which he is afterwards acquitted in proper court, is entitled to all the intermediate profits. Thus, in case of capture of prize at sea, the officer in arrest being actually on board, and afterwards duly acquitted, or restored to his station, shall share the prize-money. So in civil causes in admiralty if a master turns his mate without just cause before the mast, and he sue for wages as mate for the whole time, he may recover, though he did not do the duty. So if a clergyman be suspended ab officio et beneficio, and upon an appeal declared innocent, he will recover the profits of the living. Profits-Persons suspended from an office, entitled to intermediate profits, if innocent." The Judicial Committee of the Privy Council have on two Suspension occasions, in the cases of Martin v. Mackonochie (q) and Hebbert for contempt. Purchas (r), thought themselves warranted by the law in inflicting the punishment of suspension for disobedience to their orders. But for these decisions it would have seemed that these contempts of court would be punished, as contempts of all courts are, by committing, or, in the case of ecclesiastical courts, signifying, the offender. by seques The sentence of suspension is generally followed by a decree Suspension of sequestration, which provides for the performance of the accompanied duties of the benefice, &c., during the period of suspension. tration. Where the benefice is already under sequestration, as, for Priority of instance, under a writ of sequestrari facias, the sequestration such seques Gibs. p. 1047. Ibid. p. 1046. (p) 1 T. R. at p. 526. (a) L. R., 3 P. C. p. 409; 7 Moo. P. C. C. N. S. p. 239. Vide infra, sect. 8. (r) L. R., 4 P. C. p. 301. tration. Suspended clerk cannot maintain action for profits. issuing upon the suspension takes precedence, and the previous sequestration is suspended as long as the sentence of suspension lasts (s). As to the condition of an incumbent who has been suspended from his benefice, it has been decided that when a clergyman has been suspended ab officio et a beneficio, he is not entitled to any of the profits of the benefice, and cannot recover them by action during the continuance of the suspension, although no sequestration may have issued (†). And where, under a suspension, a sequestration was issued, it was holden by Vice-Chancellor Bacon, that the fruits of the benefice sequestered belonged to the bishop as chief pastor of the church, subject to the duty of providing for the services (u). Suspension is expressly mentioned as a suitable ecclesiastical 55 & 56 Vict. punishment in the Clergy Discipline Act, 1892 (e). c. 32. When the writ of sequestration issues. SECT. 5.-Sequestration (x). The Commissioners for inquiring into the Practice and Jurisdiction of the Ecclesiastical Courts say in their Report (y) : "Sequestrations issue under the following circumstances: 1st, In obedience to writs from the courts of common law, whereby the bishop is directed to levy certain sums in pursuance of the statutes regulating Queen Anne's Bounty; 2ndly, Under the various provisions contained in the statute 57 Geo. 3, c. 99 (≈), and in cases of outlawry; 3rdly, In pursuance of decrees or orders emanating from the ecclesiastical courts, in cases where clergymen are proceeded against before those jurisdictions; and, lastly, during vacancies. "In all these cases, we apprehend the law clearly to be, that before any proportion of the profits of the benefice can be (s) Bunter v. Cresswell, 14 Jur. p. 692; vide infra, p. 1077. P. (t) Morris v. Ogden, L. R., 4 C. (u) Re Thakeham Sequestration Vide supra, Chap. X. The ecclesiastical sequestration must not be confounded with the sequestration for contempt issued out of the High Court of Justice under 2 & 3 W. 4, c. 93. Vide infra, §. 8 The origin of the term seques tration is derived from the Roman law: "Sequester dicitur, apud quem plures eandem rem de quâ controversia est; deposuerunt, dictus ab eo quod occurrenti aut quasi sequenti eos qui contendunt, committitur." (Dig. lib. xl. cap. 110.) It was much disputed by the earlier canonists whether the sequestrator had not a right to present to the benefice; but the negative is now universally adopted. See for a clear exposition of the canon law on this subject the titles " Usufruit," "Possession," 'Séquestre," in Durand de Maillane, Dict. de Droit Canonique. (y) Page 52. 66 (z) 1 & 2 Vict. c. 106, has now superseded and repealed 57 Geo. 3, c. 99. applied in payment of debts, or for any other purpose, the service of the church must first be provided for, out of those profits; and when this has been done, the buildings and fences in the glebe, and the chancel also when the incumbent repairs, ought to be sustained and kept in proper order. The right of nominating the sequestrator lies with the bishop; but when the sequestration issues on account of debts, it may often happen that the sequestration is committed to the creditor, or his nominee; in all other cases, the bishop exercises his right of nomination by selecting according to his own judgment.' Sequestration, as a punishment, is inflicted under the powers Sequestration of 1 & 2 Vict. c. 106, s. 54, for non-residence (a). It is in- as a punishflicted, partly as a punishment, and partly as a means of obtain- ment. ing a debt, under the powers of 1 & 2 Vict. c. 106, s. 67, and 34 & 35 Vict. c. 43, for dilapidations, &c. (b). It is the means by which a non-resident incumbent may be compelled to pay the salary of his curate (c); and it is generally a part or consequence of the punishment of suspension, though apparently not always necessary for that end (d). When a living becomes void by the death of an incumbent, During the or otherwise, the ordinary is to send out his sequestration, to vacancy of a have the cure supplied, and to preserve the profits (after the benefice. expenses deducted) for the use of the successor (e). benefice. Sometimes a benefice is kept under sequestration for many Where none years together, or wholly; namely, when it is of so small value, will accept the that no clergyman fit to serve the cure will be at the charge of taking it by institution. In which case, the sequestration is committed sometimes to the curate only, sometimes to the curate and churchwardens jointly (ƒ). Sometimes the fruits and profits of a living which is in con- During suit. troversy, either by the consent of parties, or the judge's authority, are sequestered and placed for safety, in a third hand. And thus where two different titles are set on foot, the rights are carefully preserved, and given to him for whom the cause is adjudged (g). And the judge is also wont to appoint some minister to serve the cure, for the time that the controversy shall depend; and to command those to whom the sequestration is committed, to allow such salary as he shall assign out of the profits of the church to the parson that he orders to attend the cure (h). Outlawry. Sequestrations used to issue in cases of outlawry (i) :Sometimes a sequestration issues upon the Queen's writ to the Debt. bishop to satisfy the debts of the incumbent (j). And this is, where a judgment has been obtained against a Appeal against sentence of sequestration. Nature of writ. Arbuckle v. Sequestration clergyman, and upon a fieri facias, directed to the sheriff to levy the debt and damages, he returns that the defendant is a clerk beneficed having no lay fee. Whereupon a fieri facias de bonis ecclesiasticis (k) is directed to the bishop to levy the same of his ecclesiastical goods, and by virtue thereof the profits of the benefice should be sequestered. And in this case the bishop may name the sequestrators himself, or may grant the sequestration to such persons as shall be named by the party who obtained the writ. If the sequestration be laid and executed before the day of the return of the writ, the mesne profits may be taken by virtue of the sequestration, after the writ is made returnable, otherwise not (7). Stratford. "If an appeal be made against a sentence of sequestration, and lawfully prosecuted, the party sequestered shall enjoy the profits pending the appeal” (m). While the boundaries of dioceses were being re-arranged, cases arose as to sequestration in transferred portions of a diocese. It is probably now not necessary to do more than give the references to these cases (n). The sequestration is a continuing execution, and the sequestrator must continue in possession until the debt is levied, and the bishop must return not the writ but the amount levied from time to time (o). The history and nature of the writ are very clearly stated in Arbuckle v. Cowtan (p)—a decision on the Insolvency Act then in force. Since this decision, which established that the assignees of an of ecclesias- insolvent incumbent were not ipso facto entitled to the revenues tical benefice, of the benefice, a series of acts has enabled the assignee or under present bankruptcy trustee in insolvency or bankruptcy to obtain sequestration of act. the benefice. The act now in force is "The Bankruptcy Act, 1883," 46 & 47 Vict. c. 52, s. 52 (1). 46 & 47 Vict. c. 52. "(1.) Where a bankrupt is a beneficed clergyman, the trustee may apply for a sequestration of the profits of the benefice, and the certificate of the appointment of the trustee shall be sufficient authority for the granting of sequestration without any writ or other proceeding, and the same shall accordingly be issued as on a writ of levari facias founded on a judgment against the bankrupt, and shall have priority over any other sequestration issued after the commencement of the bankruptcy in respect of a debt provable under the bankruptcy, except a sequestration issued before the date of the receiving order by or on behalf of a person who at the time of the issue thereof had not notice of an act of (k) This writ is similar to the (1) 3 Black. Com. bk. 3, p. 418. (n) Phelps v. St. John, 3 C. L. R. p. 478; Powell v. Hibbert, 15 Q. B. p. 129. (o) Marsh v. Fawcett, 2 Black. H. p. 582. (P) 3 B. & P. p. 322. bankruptcy committed by the bankrupt, and available for grounding a receiving order against him (7). "(2.) The bishop of the diocese in which the benefice is situate may, if he thinks fit, appoint to the bankrupt such or the like stipend as he might by law have appointed to a curate duly licensed to serve the benefice in case the bankrupt had been non-resident, and the sequestrator shall pay the sum so appointed out of the profits of the benefice to the bankrupt, by quarterly instalments, while he performs the duties of the benefice. "(3.) The sequestrator shall also pay out of the profits of the benefice the salary payable to any duly licensed curate of the church of the benefice in respect of duties performed by him as such during four months before the date of the receiving order not exceeding fifty pounds. "(4.) Nothing in this section shall prejudice the operation of the Ecclesiastical Dilapidations Act, 1871, or the Sequestration Act, 1871, or any mortgage or charge duly created under any Act of Parliament before the commencement of the bankruptcy on the profits of the benefice." Writ of sequestrari facias de bonis A sequestration also issues in obedience to the Queen's writ of sequestrari facias de bonis ecclesiasticis (r). The following decisions relate to the right of priority in cases ecclesiasticis. where several sequestrations have been issued: Sequestration when part of an ecclesiastical punishment takes Case in which precedence, though later in date, of a sequestration issued at the a later takes precedence instance of a creditor. Thus where upon a writ of sequestrari of an earlier facias de bonis ecclesiasticis, issued from the Court of Queen's sequestration. Bench at the suit of a creditor, a sequestration was duly issued and published by the bishop, under which the sequestrator appointed by him entered into the rectory, and received the profits of it; and where, afterwards, and before the creditor's claim was satisfied, or the sequestration was amoved, the bishop, pursuance of a sentence of suspension for eighteen months, duly adjudged in the Ecclesiastical Court, under the Church Discipline Act, 1840, against the same rector, issued and published another sequestration appointing another sequestrator,It was holden, that the effect of the first sequestration was suspended during the continuance of the second, so that, during that time, the creditor could not call upon the bishop to account for any of the profits of the living (s). in in the order As a general rule, the law requires that when several writs of Sequestrafieri or levari facias are delivered to the bishop's officer, he should tions issued issue the sequestrations thereon in the order of time in which in which the the writs were delivered to him to be executed, and not accord- writs are ing to the date of their teste. (9) See Ex parte Chick, Re Mere- the nature of a fieri facias. Arch dith, 11 Ch. D. p. 731, a decision on the previous Bankruptcy Act. bold's Common Law Practice, 13th (8) Bunter v. Cresswell, 14 Jur. (r) This writ is in the nature of a levari facias; the writ of fieri facius de bonis ecclesiasticis being in p. 692. delivered. |