Under stat, 1 and 2 Vict. c, 106, a writ of sequestration issued from the Consistory Court of the diocese of W reciting that the bishop had issued a monition, ordering the vicar of the vicarage of C, within the diocese, to reside on his benefice, that the monition was served on the vicar, and he returned that he had since commenced residence in consequence of this monition : that it had been officially reported to the bishop that the vicar had so commenced residence, but had not continued to reside, and had not been present at his vicarage house four months on the whole in the year following the monition ; that the bishop thereupon, by a subsequent order, ordered him to proceed to and reside on the benefice within thirty days ; which order had not been complied with : and the bishop had therefore directed the Court to sequester the profits until the order should have been complied with, or satisfactory reason for non-compliance shewn to the bishop: whereupon the Court sequestered the profits, until, ande. (as before), directing the sequestrator to collect them and out of the same to cause the cure to be duly served, and to account for the residue, andc. The sequestrator having taking the profits accordingly, an action of debt for money had and received was brought against him by the vicar. It appeared at the trial that the sequestration had issued without notice to the vicar to shew cause why it should not issue.
Held: by the Court of Exchequer Chamber, on error and bill of exceptions, that such notice was essential to the right of the sequestrator, although, after a proper preliminary proceeding, the judgment of the bishop is final. And, that a notice warning the vicar, after he had made return to the monition, that, unless he resided, the sequestration would issue, was not such a notice as was requisite. Also, that the sequestration could not be considered as issuing under sect. 56, which authorizes the bishop to sequester quousque without further monition or order, when the clerk, after being ordered to reside, begins to reside, but, before the expiration of twelve months thereafter, wilfully absents himself for one mouth. And that the action of debt was well brought. It is advisable that the sequestration in such a case should recite the delinquency and the bishops adjudication tbereon ; and that the previous monition be preceded by a summons to shew cause why it should not issue.
Citations:
[1850] EngR 923, (1850) 16 QB 162, (1850) 117 ER 840
Links:
Jurisdiction:
England and Wales
Ecclesiastical
Updated: 05 May 2022; Ref: scu.298270
