Ejectment for land at Clopton, in Suffolk. At the trial, before Bolland, B., at the Summer Assizes for the county of Suffolk, in the year 1835, it was proved, that in the the year 1771, one William Daniel being seised in fee of the premises in question, died, having devised them to trustees for sale, and, after payment of his debts, to lay out the money in the purchase of real estates, to be settled to the same uses as his other estates-namely, to the use of his own son William Barker Daniel for life, remainder to trustees to preserve, &c., remainder to his issue in tail, with the ultimate remainder to his brother in fee. The trustees did not sell the property, but suffered W. B. Daniel to take possession of it, and to remain undisturbed in his possession during his life. He died in 1833, having, as it was alleged, conveyed the property to the defendant Coulthred, in fee. The defendant Baldry was the tenant of the land, who had succeeded to one John Baker, the under-tenant of W. B. Daniel, to whom he had paid rent for fifty years. This payment of rent raised a presumption of a seisin in fee in W. B. Daniel, and negatived the seisin of the devisor; but to rebut that presumption, a deed was put in, dated October 1, 1813, by which W. B. Daniel granted an annuity to one John Water, and charged it upon the present premises. In that deed, his title under his father's will was set out; and it thereby appeared, that the legal estate was in the trustees, it being recited that all the debts and legacies had been paid. It was objected, that this deed was not admissible in evidence against the defendants, who did not claim under it; but the learned Judge admitted it, giving the defendants leave to move to enter a nonsuit, if the Court should hold that it was inadmissible. In the Michaelmas term following Storks, Serj. obtained a rule nisi; against which, cause was shewn by— Kelly, who contended, that the deed was admissible, containing a declaration made by a party in possession of the land, and which, as it diminished his estate, by reducing it from a fee to a life estate, was contrary to his own interest-Holloway v. Rakes (1), Peaceable v. Watson (2), Carne v. Nicoll (3), and Doe v. Pettett (4). Whether the defendants claim under W. B. Daniel, or are strangers to his estate, the declaration of a person in actual possession, or in the receipt of the rents, is admissible to explain the nature of his holding. Storks, Serj. and Gunning, in support of the rule, urged, that in fact this was not a declaration against the interest of W. B. Daniel, because he had no legal estate at all in these premises. They were devised to the trustees, who ought to have sold them, but who allowed him to hold them for his life. Therefore, when he asserted, as he did in his deed, that the trustees had so granted them to him, he was really setting up his own title, and advancing his own interest. The foundation for the admissibility of the evidence consequently fails; and it becomes necessary to prove a privity of estate between W. B. Daniel and the defendants, before his declaration can be received against themOutram v. Morewood (5). In Woolway v. (1) Cited by Buller, J., in Davies v. Pierce, 2 Term Rep. 53. (2) 4 Taunt. 16. (3) 1 Bing. N.C. 430 ; s. c. 4 Law J. Rep. (N.s.) C.P. 89. (4) 5 B. & Ald. 223. (5) 5 Term Rep. 121. Rowe (6), the identity of interest was proved; but there was no proof here, that the defendants were identified in interest with W. B. Daniel. Cur. adv. vult. The judgment of the Court was now delivered by LORD DENMAN, C.J.-[After stating the facts, his Lordship continued:]-A rule nisi for a new trial was granted, on the question, whether certain evidence was admissible—namely, a deed executed by W. B. Daniel, for raising a sum of money, to be secured by annuity on these premises, in which the will was recited, that the trustees had not sold, and that W. B. Daniel was in possession by permission of the trustees. The learned Judge permitted the evidence. We think he was right, on the principle, that W. B. Daniel being once shewn to be in receipt of the rents and profits, his declaration in the deed, that he held under and by the permission of the lessor of the plaintiff's ancestor, was in derogation of his own apparent right, to be considered as the owner in fee. We cannot look at the equitable relation in which the parties stood to each other. The sole question is, in whom the legal estate resides. We think, the admission of the person in receipt of the rent, that he held under another, whether as tenant by sufferance, or as a receiver of the rents, is undoubtedly evidence that he himself is not the owner of the legal estate. Then, there is proof here aliunde, that the lessor of the plaintiff had the legal estate under W. (6) 1 Ad. & El. 114 ; s. c. 3 Law J. Rep. (N.s.) K.B. 121. Custom-Parish Boundaries-Perambulation-Evidence. A custom for parishioners in perambulating the parochial boundaries, to go through a particular house in the parish, which is not on the boundary line, or in any manner required in the course of the perambulation, cannot be supported. In an action of trespass by a party whose house is situate in the parish, against other parishioners, for the exercise of such an alleged customary right, an entry in the parish books, recording the fact that the perambulation has taken place in a particular line, is inadmissible in evidence. [For the report of the above case, see 7 Law J. Rep. (N.S.) M.C. p. 11.] MEMORANDUM. Nov. 18.-On this day, John Goode, a captain in the army, was brought up on a writ of habeas corpus, by the keeper of the Tothill Fields Bridewell, to plead to an indictment which had been found at the Westminster Sessions, and since removed into this court, which charged the defendant with having spoken certain seditious words against Her Majesty Queen Victoria. The prisoner was evidently insane, and refused to plead to the indictment. A jury was therefore immediately called from a panel previously summoned, and was sworn to try whether the prisoner was insane or not. Evidence was given which proved clearly that he was so, and the jury returned a verdict accordingly, which was recorded; whereupon the Court, under the 39 & 40 Geo. 3. c. 94. s. 2, ordered him to be kept in the custody of the same keeper, until Her Majesty's pleasure should be known, and he was taken back to the Bridewell. END OF MICHAELMAS TERM, 1837. CASES ARGUED AND DETERMINED IN THE Court of Queen's Bench. HILARY TERM, 1 VICTORIA. Ecclesiastical Property-Annuity. A beneficed clergyman in 1813 granted an annuity, and charged it on benefice S; in 1825 he granted another, which he charged upon S. and upon W. In 1831 both annuities were re-purchased by him and assigned to a new grantee, as trustee for the benefit of the British Annuity Company, on which the plaintiff was chairman, and the annuities falling again into arrear, the grantee recovered the rectory of S, and took possession thereof. Besides the charges created by these grants, a warrant of attorney was executed in 1831, which recited the grants; that they were charged on the livings; that it was intended that a warrant of attorney should be given as a collateral security for the annuity; and that sequestration was to issue from time to time as arrears accrued, but it merely authorized the entering up of an absolute judgment:Held, that the warrant of attorney was valid, and that the plaintiff was at liberty to hold a sequestration issued against W, upon the judgment entered up in conformity therewith, until he was satisfied the whole arrears due at the time it was sued out, and also to apply the profits of S. in payment of the accruing arrears. On the 18th of February 1813, the defendant, who is the rector of Great Stans bridge, and also vicar of Little Wekering, both in the same county, granted an annuity of 260l. to one E. Fisher, and charged it upon the rectory. In 1816 he granted another annuity of 931. to one T. H. Shepherd, and charged it upon the rectory and the vicarage. In 1820, he granted another, and charged it upon the vicarage, and in 1823, a fourth, which he also charged upon the rectory and the vicarage. In January 1825, he executed a deed, whereby, after reciting that he had agreed to re-purchase these annuities, and that Peter Moore, the chairman of the British Annuity Company, had agreed with the defendant for the purchase of an annuity of 574l., for the sum of 4,400l., out of which the former annuities were to be paid off, he granted an annuity of that amount charged on his rectory and vicarage. The annuities, and also the terms which had been created to secure them, were assigned to a trustee for the benefit of the company. The deed also recited, that the defendant had given a warrant of attorney to the plaintiff, authorizing him to enter up judgment for 8,800l., as a collateral security only for payment of the annuity, and contained a covenant by the defendant, that when and so often as the said annuity should be in arrear for twenty days, it should be lawful for the plaintiff to sue out execution for the recovery of the arrears of the said annuity and costs; and it was provided, that absolutely; and though it may have been intended to operate as a collateral security for the annuity, such intention will not render it invalid-Colebrook v. Layton (4). Secondly, although the plaintiff has recovered the rectory of Great Stansbridge, he is not precluded from holding the sequestration upon Little Wakering, to satisfy the arrears of the annuity due at the time of the sequestration. That sequestration has not produced enough to satisfy those arrears, and, therefore, the defendant has no right to have it set aside. The fact of the defendant having been discharged under the Insolvent Debtors Act, makes no differThe assignee cannot be in a better situation than the defendant; and Bishop v. Hatch (5) shews that a benefice does not pass to the assignee of an insolvent debtor. Sir W. W. Follett in support of the rule. ence. on repayment of the sum of 4,4001. by the defendant, satisfaction should be entered on the roll. On the same day, the defendant executed a warrant of attorney, which, after reciting the grant of the different annuities, and the intended re-purchase and transfer to the company, for the further securing of the regular payment of the annuity of 5741., authorized the plaintiff to enter up a judgment for 8,800l. in this court. There was no provision in the warrant of attorney for the executions to be levied or executed upon the judgment. On this warrant of attorney judgment was entered up on March 3, 1825, and a writ of levari facias was sued out in June 1833, to recover certain arrears of the annuity, under which the Bishop of London granted a sequestration of the vicarage; and at the Spring Assizes of the same year the trustee for the company recovered the rectory in an eject--This judgment is not valid. The warment (1). The sequestration still continues. The defendant, in March 1836, was discharged under the Insolvent Debtors Act, and all his property was assigned to one of his creditors. In 1832, he had applied to this Court to set aside this warrant of attorney, and the judgment entered up thereon, and also a sequestration which had issued for prior arrears, when the rule was discharged, in regard to the warrant of attorney and the judgment, but the sequestration was set aside from that time -see Moore v. Ramsden (2). A rule nisi for the same purpose had been obtained in Trinity term, 1836, against which, cause was shewn in last Trinity term, by— Kelly and Channell.-Two points have been made on the present occasion:-first, that the judgment is void, as being a charge on an ecclesiastical benefice; second, that the sequestration of Little Wakering cannot be continued for the arrears now due. The Court has already determined the first point in 1832, and the party has no right to bring forward the same question, even though new facts be now stated-Rossett v. Hartley (3). But the warrant of attorney was not invalid. It did not purport to be a continuing charge upon the living; it authorized a judgment to be entered up (1) Doe d. Wilks v. Ramsden, 4 B. & Ad. 608. (2) 3 B. & Ad. 917, n. ; s. c. Lumley on Annuities, 238; and see a full report of the case, 1 Law J. Rep. (N.S.) K.B. 134. (3) 5 N. & M. 415; s. c. 5 Law J. Rep. (N. s.) K.B. 49. See Todd v. Jeffery, ante, 1. rant of attorney operates as a charge upon the defendant's benefice, and is exactly within the case of Saltmarsh v. Hewitt (6). There is here an express recital of the grant of an annuity secured upon the defendant's benefice, and that the warrant of attorney is given to secure that annuity. In Colebrook v. Layton, and Johnson v. Brazier (7), the warrant of attorney did not, on the face of it, appear to be a charge upon the benefice; but, it is impossible to read the warrant of attorney in the present case, and not see that the defendant has executed it, to operate as a charge upon his benefice. Then, if the warrant of attorney be not altogether void, at least the plaintiff has no right to keep the sequestration now on foot. He has obtained possession of the rectory of Stansbridge, but does not say how much he has received from it. The receipts of that benefice must have reduced the arrears for which Little Wakering has been sequestered, and therefore it is evidently retained for the purpose of satisfying the present accruing payments. In effect, the sequestration is kept up for that purpose. Cur. adv. vult. (4) 4 B. & Ad. 578; s. c. 2 Law J. Rep. (N.S.) K.B. 95. (5) 1 Ad. & El. 171; s. c. 3 Law J. Rep. (N.S.) K.B. 127. (6) 1 Ad. & El. 812 ; s. c. 3 Law J. Rep. (N.S.) K.B. 188. (7) 1 Ad. & El. 624; s. c. 3 Law J. Rep. (N.S.) K.B. 127. And now, the judgment of the Court. was delivered by LORD DENMAN, C.J.-In this case it appeared, that in the year 1813, that is, in the interval between the 43 and 57 Geo. 3, when the 13 Eliz. was not in being, the defendant being incumbent of the rectory of Great Stansbridge, in consideration of a loan, agreed to charge his living with an annuity, and to demise it in case of non-payment to a trustee, for securing both such payments that might then be due, and such as might thereafter become due. Under this deed, the trustee recovered by ejectment, in 1833, possession of the rectory, and has received the profits to the extent of 6617., for the plaintiff's benefit. In 1825, when the repeal of the 43 Geo. 3. had restored the operation of the 13 Eliz., the defendant, in consideration of further advances, granted another annuity, and secured it both on the rectory and on another living of which he was incumbent Little Wakering. One of the instruments executed by the defendant on that occasion, was a deed demising the living, and authorizing the plaintiff to enter on the premises, and to distrain for the annuity and sequester the living; and it recited an intention to execute a warrant of attorney of even date, as a collateral security only for the better payment of the annuity, and that no execution should issue until after twenty days' default; but, in such case, it should be lawful for the plaintiff to sue out such execution or executions as he should think fit. The warrant of attorney expressly refers to the annuity deed, reciting this provision, and after a statement of the negotiations between the parties and others, respecting money raised for the defendant's benefit, and for further securing the regular payment of the annuity, authorizes judgment to be entered up forthwith against him, for 8,8001., being double the amount of the monies advanced by the plaintiff to him, or for his benefit. No power to sequester is given either expressly or by reference to the indenture; and, as the whole amount of arrears due exceeds the profit of the rectory of Great Stansbridge, actually received, by 2007., the plaintiff has issued execution for this sum, and sequestered Little Wakering to raise it. The defendant obtained a rule to set aside the warrant of attorney, judgment, and sequestration, on the ground, that they were charges on an ecclesiastical benefice; and my Brothers Littledale, Patteson, Williams, and myself, heard the case argued. The very same motion was previously made by the same defendant in the same case, in Hilary term, 1832, and the rule was discharged by Lord Tenterden and my Brother Patteson. We cannot, however, properly act on that decision, because the short note of it proves that these facts were not quite correctly brought before the Court, inasmuch as we find, on looking at the warrant of attorney, as set out in the affidavit, that it contains no defeazance whatever, and no mention of sequestering, but merely an authority to enter up judgment for the sum secured. Such a warrant of attorney has been in no case held a charging of the benefice; and it is unnecessary for us to discuss the decision in Saltmarsh v. Hewitt, or Newland v. Watkin, on which that case was in a great measure founded; but, as we have been led to an examination and perusal of the numerous cases that have been determined of late years on this subject, we think it right to state, that Newland v. Watkin, (which is very shortly reported in 9 Bingham's Reports (8), accompanied by no judgment of the Court, beyond a direction in a loose form, that the rule should be made absolute,) is given with the full argument and the judgment of the Lord Chief Justice Tindal, in the Law Journal (9). The sequestration of Little Wakering has taken place under a warrant of attorney, which is not a charging of the benefice; and the application was to set aside this sequestration, on the ground, that it had issued for arrears subsequently accruing, all due at the time having been paid out of the proceeds of the other rectory; but we think the plaintiff has a right to apply these proceeds as he may think proper, and he may keep the latter on account of the new arrears, while he keeps that of Little Wakering for such as became due before. This rule must therefore be discharged. (8) P. 113. Rule discharged. (9) See 1 Law J. Rep. (N.S.) C.P. 147. |