Chap. the continuance of the annuity for better securing the same, is XXIV. (i.) void, as showing an intent indirectly to create a charge on the living (y). Warrant of attorney. Parol evidence. Result of authorities. Powers of incumbent to mortgage generally. An agreement for giving priority to any particular judgment, in execution against a benefice, is void (≈). But if nothing appears on the instrument necessarily leading to the conclusion that such was the intent, the warrant of attorney will be valid, although the consequence may be that the profits of the living will probably be taken in execution (a). In three cases of annuity, the Courts have confined the sequestration to the arrears due, but have upheld the warrant of attorney and judgment (b). It was decided that a judgment entered up on a warrant of attorney for securing an annuity charged on a living in the North Riding of Yorkshire (supposing the same to be in other respects maintainable), need not be registered under 8 Geo. II. c. 6, by reason that though it may be enforced by sequestration, yet the benefice is not affected by the judgment (c). If the intention to affect the benefice does not appear on the face of any of the securities, mere parol evidence of the intention is not admissible to impeach them (d). The result of the authorities has been stated by a learned author, as follows: a warrant of attorney, given by a clergyman, will be valid, although its immediate object and consequence is a sequestration of his benefice; but the intention to affect the living directly or indirectly must not appear on the face of the warrant, nor, as it is conceived, on any collateral instrument (e). ii. Mortgages by Incumbents of Benefices under Statutory Powers for Building, &c.-The incumbent of a benefice is empowered (f), with the consent of the ordinary and patron thereof, (y) Flight v. Salter, 1 B. & Ad. 673; Newland v. Watkin, 9 Bing. 113; Saltmarshe v. Hewett, 1 A. & E. 812. (z) Long v. Storie, 3 De G. & S. 308. (a) Gibbons v. Hooper, 2 B. & Ad. 734. And see Newland v. Watkin, 9 Bing. 113; Faircloth v. Gurney, 9 Bing. 622; Aberdeen v. Newland, 4 Sim. 281. See Kirlew v. Butts, 2 B. & Ad. 736, n.; Colebrook v. Layton, 4 B. & Ad. 579. (b) Kirlew v. Butts, sup.; Moore v. Ramsden, 3 B. & Ad. 917, n., and S. C. 4 B. & Ad. 608; Britten v. Wait, 3 B. & Ad. 915. (e) Cottle v. Warrington, 5 B. & Ad. 447. (d) Colebrook v. Layton, 4 B. & Ad. 579; Bishop v. Hatch, 4 Jur. 318; Johnson v. Brazier, 1 A. & E. 624. (e) Dav. Conv., vol. ii. pt. ii. p. 26. (ƒ) 17 Geo. III. c. 53; 21 Geo. III. c. 66; 1 & 2 Vict. c. 23. These Acts are commonly called "Gilbert Acts." Chap. to borrow and take up at interest a sum of money exceeding one year's, but not exceeding three years', net income of his XXIV. (ii.) benefice for the purpose of building, repairing, or purchasing a house and other necessary buildings, or a proper site for such house and other necessary buildings, to be used as the parsonage or glebe house and offices for his benefice, such house, if purchased, to be at a distance of not more than one mile from the church; and as a security for the money so to be borrowed, to mortgage the glebe, tithes, rentcharges, rents and other profits and emoluments of his benefice for the term of thirty-five years, the principal so borrowed being repayable by thirty annual instalments, with interest to accrue due thereon and in the same manner; and, subject to the like consents and provisions, an incumbent is empowered (g) to borrow any sum of money not. being less than one hundred pounds, and not exceeding three years' net income of his benefice, for the purpose of purchasing any lands or hereditaments, not exceeding twelve acres, contiguous to or desirable to be used or occupied with the parsonage house or glebe belonging to such benefice, or for the purpose of building any offices, stables or outbuildings, or fences necessary for the occupation or protection of such parsonage, or for the purpose of restoring the fabric of the chancel of the church of such benefice (when the incumbent is liable to repair the same), or of expenditure upon farm buildings upon lands appertaining to such benefice. Money employed in adding additional rooms to a parsonage Additions to house may be charged on the living under 17 Geo. III. c. 53 (h). parsonage. The incumbent may advance his own money (h). But the Who may money may not be advanced by a person whose duty it is to see that the provisions of the Act are properly carried out for the benefit of the living (i). advance money. mortgage. The mortgage and other necessary deeds must be in the forms Form of prescribed by statute (k); and the mortgage-money must be statutory paid to the person authorized to receive the same by the ordinary, patron and incumbent (7). "benefice." "Benefice" is to be construed to comprise "all rectories with Meaning of cure of souls, vicarages, perpetual curacies, and chapelries, the (g) 28 & 29 Vict. c. 69, s. 1. (k) 17 Geo. III. c. 53, Sched.; 21 Geo. III. c. 66, Sched. (1) 17 Geo. III. c. 53, s. 4. Chap. incumbents of which respectively in right thereof shall be XXIV. (ii.) corporations sole" (m). Successors bound. Charge for residence of bishop. Mortgage of benefice after sequestration. Powers of incumbent to mortgage to A mortgage made by an incumbent in manner above mentioned is binding upon his successors in office (n). The Act 1 & 2 Vict. c. 106, s. 62, authorizes the bishop, on the avoidance of a benefice not having a fit house of residence, to raise money for building a residence by mortgage of the glebe, tithes, rents, and profits, and prescribes a form of mortgage given in the schedule to the Act. And by sect. 70 of the same Act, the bishop is empowered to raise money by such mortgage for the purchase of a suitable residence elsewhere than on the glebe without any limit as to distance from the church. By the statute 5 & 6 Vict. c. 26, s. 13, where a benefice has been augmented under the statute 3 & 4 Vict. c. 113, the powers of incumbents to raise money by mortgage for purchasing, building, or improving their houses of residence are not to be exercised without the consent of the Ecclesiastical Commissioners signified under their common seal. Under the Ecclesiastical Dilapidations Act, 1871 (0), as amended by an Act of the following year (p), powers of borGovernors of rowing on mortgage from the Governors of the Bounty of Queen Anne's Bounty. Queen Anne are conferred upon an incumbent for the purpose of meeting expenses of repairs for which he is liable. These restricted powers are exerciseable by the incumbent concurrently with the above-mentioned general powers. The form of mortgage under these Acts, and the conditions and provisions under which such mortgages may be effected, are prescribed by the sections in the note hereto (9). A mortgage made by an incumbent to the Governors of Queen Anne's Bounty may be subsequently modified by the Governors by extending the time for repayment to them of the mortgage-money (r). Mortgages By the Ecclesiastical Commissioners Act, 1840 (s), it is enacted that the Ecclesiastical Commissioners may "authorize any dean or canon of any cathedral church to raise moneys on his deanery or canonry, for the purpose of building, enlarging, (m) 1 & 2 Vict. c. 23, s. 16. (n) 17 Geo. III. c. 53, Sched. ; 21 Geo. III. c. 66, Sched. (0) 34 & 35 Vict. c. 43. (p) 35 & 36 Vict. c. 96. (9) 34 & 35 Vict. c. 43, ss. 17, 38, 62, 64, and 73; 35 & 36 Vict. c. 96, ss. 1, 2, and 3. (r) 44 & 45 Vict. c. 25; 49 & 50 Vict. c. 34; 50 & 51 Vict. c. 8; 59 & 60 Vict. c. 13. (s) 3 & 4 Vict. c. 113, s. 59. or otherwise improving the residence house thereof, on such Chap. terms and conditions as the said Commissioners with the con- XXIV. (ii.) currence of the Bishop and the chapter shall approve.' And it is also provided that all the provisions of "an Act to amend the law for providing fit houses for the beneficed clergy" (t) shall be applied, mutatis mutandis, to all such cases in which any dean or canon shall be so authorized to raise moneys on his deanery or canonry for such purpose. It is further provided by the Ecclesiastical Houses of Residence Act, 1842 (u), that sect. 59 of the Ecclesiastical Commissioners Act, 1840, "shall be extended so as to make lawful the raising of moneys, in the manner and with the authority therein provided, by any dean and chapter, dean or canon, for any purpose of this Act." universities By the Universities and College Estates Act (x), powers of Mortgages by mortgaging their estates are given to the Universities and and colleges. Colleges of Oxford, Cambridge, Dublin, Winchester and Eton Colleges, with the consent of the Board of Agriculture. By the Universities and Colleges Estates Acts Extension, 1860 (y), further powers are conferred; and as to Winchester and Eton Colleges, see 31 & 32 Vict. c. 118, ss. 24, 25, and 28. By the Universities and Colleges Estates Act, 1898 (), the purposes for which money may be borrowed by a university or college include improvements, to which capital money under the Settled Land Acts may be applied. (t) 1 & 2 Vict. c. 23, sup. (u) 5 & 6 Vict. c. 26, s. 5. (x) 21 & 22 Vict. c. 44. (y) 23 & 24 Vict. c. 59. And see 43 & 44 Vict. c. 46. (z) 61 & 62 Vict. c. 55, s. 3. CHAPTER XXV. Statutory restrictions powers of corporations. OF MORTGAGES BY MUNICIPAL CORPORATIONS AND OTHER LOCAL AUTHORITIES. i.-Mortgages by Municipal Corporations.-By the common on borrowing law, a body corporate may deal with its property, by way of mortgage or otherwise, as freely as an individual. But restrictions upon the borrowing powers of municipal corporations have been from time to time imposed by the Legislature, as regards particular corporations, by various special Acts, and, generally, by the public Acts hereafter mentioned. Repealed statutes. Stat. 45 & 46 By the Municipal Corporations Act, 1835 (a), the councils of bodies corporate elected under the Act were restrained from mortgage and alienation of the lands, tenements, or hereditaments of the corporation, except with the consent of the Lords Commissioners of the Treasury, and after such notice as is required by the Act. By 6 & 7 Will. IV. c. 104, s. 1, and 7 Will. IV. & 1 Vict. c. 78, s. 28, the councils of corporate bodies were authorized to give new securities for old debts. And by the Municipal Corporations Mortgages Act, 1860 (b), in any case where Commissioners of the Treasury approve of any mortgage of any hereditaments of the body corporate of any borough to which the Act applies, they may, as a condition of their approval, require that the money borrowed on the security of such mortgage shall be repaid, with all interest thereon, in thirty years, or any less period, and either by instalments or by means of a sinking fund, or both, as the Commissioners may think fit. The Municipal Corporations Act, 1882 (c), repeals the three first-mentioned Acts generally, and the Municipal Corporations (a) 5 & 6 Will. IV. c. 76, s. 94. (c) 45 & 46 Vict. c. 50, s. 5. |