No. 1.- Wise v. Metcalfe, 10 Barn. & Cress. 300–302.

be repaired in the same manner only as buildings ought to be left by an outgoing lay tenant, who is bound by covenant to leave them in good and sufficient repair, order, and condition, the expense of such reparations amounted to £310, the painting, papering, and whitewashing not being included in the last estimate.

And if the former incumbent, William Metcalfe, was only bound to leave the rectory-house, buildings, and chancel wind and water tight, or in that state of reparation which an outgoing lay tenant of premises not obliged by covenant to do any repairs, ought to leave them, then the expenses of repairing the rectory, buildings, and chancel amounted to £75 11s.

*

The question for the determination of the Court is, [* 301] which of the above principles of valuation is the correct

The

one; and according to their decision the damages will stand for £399 18s. 6d., or be reduced either to £310 or to £75 11s. case was argued on a former day during these sittings, by Brodrick for the plaintiff. The principle first stated in the case is that upon which the estimate ought to be formed. The action for dilapidations is founded on the custom of England, which is the common law; by that custom the incumbent of a living is bound to leave the premises in the same state of repair as he ought to keep them in. The custom is thus described in Degge's Parson's Counsellor, p. 138, pl. 94. "Omnes et singuli prebendarii rectores, vicarii regni Angliæ pro tempore existentes, omnes et singulas domos et edificia prebendarum, rectoriarum et vicariarum suarum reparare et sustentare, et ea successoribus suis reparata et sustentata dimittere teneantur." That shows that they must be left to the survivor in the state in which the predecessor ought to keep them. By a legatine constitution of Cardinal Othobon, promulgated A. D., 1268, 52 H. 3, it is ordered that none through covetousness may neglect the house, nor suffer it to go into ruin or dilapidation. Gibs. Cod. Jus. Eccl. 751. Lyndewood, in his comment upon this constitution, and [302] upon the words "prout indiguerint " says, "necessariam refectionem importat; non ergo loquitur hic de refectione preciosa picturæ Parrhasii vel Apellis, immo nec de aliis voluptuosis impensis." But it appears from the expression "studeant" that some pains are to be taken that decent and respectable repairs be 1 Lyndewood's Provinciale. Constitutio Othoboni, tit. 17, De Domibus ecclesiarum reficiendis, p. 112. Ed. Oxon.

No. 1. Wise v. Metcalfe, 10 Barn. & Cress. 302, 303.

done. Dilapidations are such repairs and renovations as are proper to make the house habitable with decent convenience, respect being had to the value of the benefice to which the house belongs. Gibson, in the Codex, Appendix, 1554, under the head of directions in order to a parochial visitation, among the matters to be inspected mentions the mansion-house of the rector, and other houses, buildings, &c., thereto belonging, and the direction as to them is, "that all of them be kept in good and sufficient repair; and particularly that the mansion or dwelling-house (over and above the repairs which are deemed necessary) be kept in such decent manner as is suitable to the condition of the rector, vicar, or curate," and he refers to the words of Othobon's Constitution, "reficere studeant condecenter." Here the rector had from his rectory an income of £600 per annum; he ought, therefore, to have kept the premises in a state of repair, even as to painting, papering, and whitewashing, befitting for the occupation of a man of that income. In Godolphin's Repertorium, 176 edit. 1689, it is stated that by the injunctions of King Edward the Sixth to all his clergy, it is required that the proprietors, parsons, vicars, and clerks, having churches, chapels, or mansions, shall yearly bestow upon the same mansions or chancels of their churches, [* 303] being in decay, the fifth part of their benefices, till they be fully repaired, and the same so repaired shall always keep and maintain in good estate. The authorities establish that, by common law, the executors of a deceased incumbent are liable for dilapidations, but they do not define in what state the premises ought to be in order to make it necessary to put them into decent repair. But upon principle the incumbent ought to leave to his successor the premises in the same state of repair in which he is bound by law to keep them; viz., in a state fit for the occupation of a person holding such a benefice. In Percival v. Cooke, 2 Carr. & Payne, 460, BEST, C. J., at Nisi Prius, stated it to be his opinion that the executors of a deceased incumbent are bound to do nothing more than to restore what is actually in decay, and to make such repairs as are absolutely necessary for the preservation of the premises, and upon his intimating that opinion the case was compromised. There was no opportunity or occasion for questioning the correctness of the rule so laid down. It is no more than a dictum at Nisi Prius, and entitled to very little weight. The incumbent is bound to rebuild as well as

*

No. 1. -Wise v. Metcalfe, 10 Barn. & Cress. 303-305.

repair. The Bishop of Litchfield and Coventry was suspended for dilapidations, and the profits of the bishoprick were sequestered, and the episcopal palace built out of them. Doctor Wood's case, cited 12 Mod. 237. The ordinary may enforce such reparation as the ecclesiastical law requires during the life of the incumbent by sequestration of the profit, or by ecclesiastical censures even to deprivation. By the 57 G. III. c. 99, non-residents are required to keep their houses in good and sufficient repair; and s. 63 provides, that where a curate is appointed by the incumbent, and receives the whole profit of the * benefice, [* 304] he shall allow any sum not exceeding one fourth of such profit as shall have been expended in repair of the chancel, parsonage house, or residence.

Thesiger, contra. The principle last stated in the case is the one upon which the estimate ought to have been made, viz., that the incumbent is bound to leave the rectory-house, buildings, and chancel in that state of reparation only in which an outgoing lay tenant, not obliged by covenant to do repairs, ought to leave them. Damages are recoverable at law for dilapidations, upon the same principle on which they are recoverable in case of permissive waste. This appears not only from the import of the term itself, but from the light in which dilapidation was formerly viewed. With regard to the term, Cowell in his Dictionary says, “It is a wasteful spending or destroying, or the letting buildings run to ruin and decay for want of due reparation." Degge in his Parson's Counsellor, p. 134, says, "A dilapidation is the pulling down or destroying in any manner, any of the houses or buildings belonging to a spiritual living, or the chancel, or suffering them to run into ruin or decay, or wasting and destroying the woods of the church, or committing or suffering any wilful waste in or upon the inheritance of the church;" and to the same effect is Godolphin's Repertorium, p. 173, Black. Com., book 3, c. 7, p. 91. As to the light in which it was formerly regarded, it appears that dilapidation of the house of the bishopric was formerly good cause of deprivation, 3 Inst. 204; Stockman v. Wither, Roll. Rep. 86, and in that case, waste and dilapidation are treated as synonyIn the Bishop of Salisbury's case, Godb. Rep. 259, it was holden, that if a bishop, parson, or ecclesiastical person, do cut down trees upon the lands, * unless it be for repara- [* 305] tions of the ecclesiastical house, or do or suffer to be done

mous.

No. 1.-Wise v. Metcalfe, 10 Barn. & Cress. 305, 306.

any dilapidations, they may be punished for the same in the ecclesiastical court, and a prohibition will not lie, and the same is good cause of deprivation of their ecclesiastical livings and dignities. But yet for such waste done, they may be punished also at common law, if the party will sue there (meaning by the party the succeeding incumbent). So in 11 Co. Rep. 49 a, Lord COKE, referring to the Year Books, says, if a bishop or archdeacon abates or fells all the wood he has, as bishop, he shall be deposed, as dilapidator of his house. A milder course, however, was to proceed by prohibition, to restrain ecclesiastical persons from committing dilapidations or waste, Knowle v. Harvey, Roll. Rep. 335, 3 Bulstr. 158, and the Bishop of Durham's case cited in Liford's case, 11 Co. Rep. 49 a; but in Jefferson v. The Bishop of Durham, 1 Bos. & P. 105, it was held by the Court of Common Pleas that they had no power to issue a prohibition. The third course seems to have been founded on the constitution, already referred to, of Cardinal Othobon, 1268, 52 H. III. (Gibson's Codex, 751), requiring the bishops and archdeacons to admonish their clerks decently to repair the houses of their benefices and other buildings; and if they neglected for the space of two months, the bishop was to cause the same to be effectually done at the cost and charges of such clerk, out of the profits of his church and benefice, causing so much thereof to be received as should be sufficient for such reparation. The amount to be sequestered was originally left to the discretion of the ordinary. But by injunctions in the reigns of

Hen. VIII., Edw. VI., and Eliz., (mentioned in the notes. [* 306] to Gibson's Codex, p. 753), * the amount was restrained to one fifth, and by the Reformatio Legum Ecclesiasticarum to one seventh. This mode of repairing dilapidations during the incumbency prevails at the present day, and the ecclesiastical Court rarely allows more than one fifth. North v. Barker, 1 Phill. 309. These modes of proceeding, deprivation, prohibition, and sequestration, all indicate a spoliation or destruction of the property, as the groundwork of the proceeding.

Thus stood the law with regard to repairs during the incumbency, and so it partly remains at this day. But as it might frequently happen that an incumbent might resign or die before the repairs were completed, it was necessary to make a provision for such contingency. Accordingly, there is to be found in Lyndewood's Provinciale, lib. iii. tit. 27, p. 250, ed. Oxon., a very early

No. 1.-Wise v. Metcalfe, 10 Barn. & Cress. 306–308.

canon of Edmund, Archbishop of Canterbury, in the reign of Henry V., on the subject.

A remedy seems always to have existed at common law [307] against the executors of a deceased rector; though Gibson, in his Codex, 753, says, that the first writer who advanced the notion. of such an action in the temporal courts was Sir Simon Degge, and the first case in which the remedy was established was Jones v. Hill, 3 Lev. 268. After stating that prebends, rectors, and vicars are bound to repair and support their houses and buildings, Degge, in the Parson's Counsellor, Part I., c. 8, p. 138, states the custom, which is the foundation of this action, in the following words, which are nearly the same as in 1 Lutwidge, 116: "Et si hujusmodi prebendarii, rectores, et vicarii domus et edificia hujusmodi, successoribus suis sic, ut præmittatur, reparata et sustentata, non demiserunt et deliquerunt; sed ea irreparata et (not vel) dilapidata permiserunt, executores sive administratores bonorum et catallorum talium præbendariorum, rectorum et vicariorum, post eorum mortem de bonis et catallis decedentium successoribus talium præbendariorum, rectorum et vicariorum, tantam pecuniæ summam quantam pro necessaria reparatione et edificatione hujusmodi domorum et edificiorum expendi aut solvi sufficiet, satisfacere teneantur." By these expressions it is obvious that the measure of damages against the executor is that sum of money which would be required to repair and sustain that which is ruinous and dilapidated, and which was necessary to be repaired, &c.

"

Now the omission to repair what is absolutely neces- [* 308] sary is in fact the case of permissive waste. The foundation of this action is a tort, and it is an exception to the general rule, "actio personalis moritur cum personâ. In Sollers v. Lawrence, Willes, 421, WILLES, C. J., gives a reason for the action lying, that it is not considered as a tort in the testator, but as a duty which he ought to have performed; and, therefore, his representatives, so far as he left assets, shall be equally liable as himself. But the editors of the last edition of Saunders, vol. i. p. 216, observe, "that the action is in form an action on the case in tort, and that it could not possibly be framed in assumpsit, as on a contract, for the plaintiff must be the succeeding rector, who cannot be known until after the death of his predecessor, and of course could not contract with him." The ground of the action being an omission to perform a duty cast by law on the rector, it