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The following persons have been held liable to their successors for dilapidations. A prebendary, Radcliffe v. D'Oyley (1788), 2 T. R. 630, 1 R. R. 560; a perpetual curate, Mason v. Lambert (1848), 12 Q. B. 795, 17 L. J. Q. B. 366; a vicar choral, Gleaves v. Parfitt (1860), 7 C. B. (N. s.) 838, 29 L. J. C. P. 216, 6 Jur. N. S. 805; a rector, Wise v. Metcalfe, the principal case. In Pawly v. Wiseman, 3 Keb. 562, 614, a curate who was removable at will was held not liable for dilapidations, on the ground that he had no freehold. This view is supported by Wright v. Smythies (1808), 10 East, 409, 10 R. R. 337, and Browne v. Ramsden (1818), 2 Moore, 612, 8 Taunt. 559.

The personal representatives of the predecessor are liable for the dilapidations. Wise v. Metcalfe, supra. The personal representatives of the successor may maintain an action against the personal representatives of the predecessor. Bunbury v. Hewson (1849), 3 Ex. 558, 18 L. J. Ex. 258.

A similar rule is applicable upon an exchange of livings. There each is considered as the successor of the other, and may maintain an action against the other for dilapidations. Downes v. Craig (1841), 9 M. & W. 166. The opinions expressed in that case that an agreement, upon an exchange of livings, that neither should have a right of action in respect of dilapidations, would necessarily be simoniacal and void, cannot be regarded as law. If there was an honest belief that the amount recoverable by each as against the other would be practically equal, there is no objection to an agreement that the possessions shall be taken in their present condition. Goldham v. Edwards (Ex. Ch. 1856), 18 C. B. 389, 25 L. J. C. P. 223, 2 Jur. N. S. 493. And since the Ecclesiastical Dilapidations Act, 1871 (34 & 35 Vict. c. 43), the law remains the same. Wright v. Davies (C. A. 1876), 1 C. P. D. 638, 46 L. J. C. P. 41, 35 L. T. 188, 24 W. R. 841.

"By common law the parishioners of every parish are bound to repair the church, but by the canon law the parson is bound to do it, and so it is in foreign countries. In London the parishioners repair both church and chancel, though the freehold is in the parson, and it is part of his glebe, for which he may bring an ejectment." Per HOLT, CH. J., Ball v. Cross (1688), 1 Salk. 164; Pense v. Prowse (1696), 1 Ld. Raym. 59. But a section of the inhabitants of a parish might show that they were exempt by prescription. Craven v. Sanderson (1836), 4 Ad. & Ell. 666, 2 Nev. & P. 641. The inhabitants were liable by reason of occupancy, and actual residence was not necessary. Stephenson v. Case (1601), Cro. Eliz. 843; Anon. (1611), 1 Bulstr. 20. The obligation extended to the ornaments in the church. Anon., supra,

contra, 2 Inst. 489.

No. 1.-Wise v. Metcalfe.— Notes.

Ornaments however cannot be erected without the consent of the incumbent or the ordinary. Beckwith v. Harding (1818), 1 B. & Ald. 508, 19 R. R. 372. The church rate which used to be raised to discharge this obligation can no longer be enforced by legal proceedings. 31 & 32 Vict. c. 109. This act does not however change the incidence of the liability to repair the church, and the Ecclesiastical Dilapidations Act, 1871 (34 & 35 Vict. c. 43), expressly recognizes that the parson may be exempt from liability to repair part, at any rate, of the benefice.

There are conflicting opinions in the Court of Common Pleas whether a lay impropriator was liable to the same extent as a rector would have been. Anon., 3 Keb. 829; Wallwain v. Auberry (1678), 2 Vent. 35.

The obligation to repair is not co-extensive with the beneficial profits of the benefice. Thus where an incumbent is entitled to the surplus profits of lands vested in trustees, he is not liable for the dilapidations on the trust property. Wright v. Smythies (1808), 10 East, 409, 10 R. R. 337; Browne v. Ramsden (1818), 2 Moo. 612, 8 Taunt. 559.

The liability extends to the residence. Radcliffe v. D'Oyley (1788), 2 T. R. 630, 1 R. R. 560. Where the parsonage house is destroyed by fire the parson is liable to repair that damage. See Sollers v. Lawrence (1743), Willes, 413. After the great fire of 1666 parsons, vicars, and incumbents were relieved from this obligation by statute; 22 Car. II. c. 11. This liability is now modified by 34 & 35 Vict. c. 43, s. 47. The incumbent is charged with the maintenance and repairs of all hedges, fences, ditches, and other things of a like character. 2 Burn's Ecc. Law. 150; approved Bird v. Relph (1835), 2 Ad. & Ell. 777. Felling wood for timber otherwise than for repairs or fuel is an act of waste for which the incumbent is responsible, as for a dilapidation. Knowle v. Harvey (1638), 3 Bulst. 158; Herring v. Dean, &c. of St. Paul (1819), 3 Swanst. 492, 2 Wils. Ch. 1, 19 R. R. 259. Where however the timber on the benefice was inconveniently situated, the dean and chapter were permitted to sell the timber and apply the proceeds in the purchase of other timber on the spot, as the purchased timber was employed in a legitimate manner. Wither v. Dean, &c. of Winchester (1817), 3 Meriv. 421, 17 R. R. 107. A sale of timber generally to provide a building fund is not authorized. Sowerby v. Fryer (1869), L. R. 8 Eq. 417. Mines may now be leased with the consent of the Ecclesiastical Commissioners by 5 & 6 Vict. c. 108. Ecclesiastical Commissioners v. Woodhouse (1895), 1895, 1 Ch. 552, 64 L. J. Ch. 329, 72 L. T. 257, 43 W. R. 395. The action will not lie for anything in the nature of meliorating waste. Huntley v. Russell (1849), 13 Q. B. 572, 18 L. J. Q. B. 239, 13 Jur. 837. An action will not lie for the removal of buildings resting on foundations, if the building is not

No. 1.Wise v. Metcalfe. - Notes.

itself part of the freehold. Huntley v. Russell, supra; Martin v. Roe (1857), 7 Ell. & Bl. 237, 26 L. J. Q. B. 129, 3 Jur. N. S. 465.

An action will not lie against the executors for miscultivation of the glebe. Bird v. Relph (1833), 4 B. & Ad. 826, 1 Nev. & M. 415. In Ross v. Adcock (1868), L. R., 3 C. P. 655, 37 L. J. C. P. 290, 19 L. T. 202, 16 W. R. 1193, the Court held that an action would not lie against the representatives of an incumbent for waste committed by digging gravel. This determination is apparently in conflict with that of the Court of Queen's Bench in Huntley v. Russell, supra, which was however distinguished in Ross v. Adcock. It would seem at first sight that as the estate of the incumbent is presumably enriched by the sale of the gravel, the case should form an exception to the rule actio personalis moritur cum persona. It is however to be observed that the action at law has always been rested on a special custom, and that, so far as is now known, no action has ever been allowed against the representatives in respect of anything that was not a building or structure. It is upon the footing that the claim rests entirely on custom, that the claim against the estate of a deceased incumbent was postponed in the admintration of his estate to specialty and simple contract debts. Bryan v. Clay (1852), 1 Ell. & Bl. 38, 22 L. J. Q. B. 23. The law has since. been altered in this respect, as noted below.

The acts of an incumbent may be called in question upon a visitation. At one time Courts of common law used to grant a prohibition, but this remedy is now obsolete: see the observation in Jefferson v. Bishop of Durham (1797), 1 Bos. & P. 105, which is apparently the last case in which this form of action was tried. The Ecclesiastical Courts, as is mentioned in the principal case, have also been resorted to. The most effective remedies seem to be by injunction, if the incumbent is in occupation of the living, or by an action upon the case. The patron is the proper person to apply for an injunction to restrain waste by an incumbent. Holden v. Weekes (1860), 30 L. J. Ch. 35, 9 W. R. 94. The majority of the later common law cases before cited have been actions on the case.

Where damages for dilapidations were payable out of the estate of a deceased incumbent, they ranked in administration after specialty and simple contract debts, so far as they were payable out of legal assets. Bryan v. Clay (1852), 1 Ell. & Bl. 38, 22 L. J. Q. B. 23, 17 Jur. 276. In the case of equitable assets, they ranked pari passu with specialty and simple contract debts. Bisset v. Burgess (1856), 23 Beav. 278, 26 L. J.Ch. 697, 2 Jur. N. S. 1221. They are now payable pari passu with specialty and simple contract debts, whether the assets are legal or equitable. In re Monk, Wayman v. Monk (1887), 35 Ch. D. 583, 56 L. J. Ch. 809, 56 L. T. 856, 35 W. R. 691.

VOL. IX. 28

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The object of the Ecclesiastical Dilapidations Act, 1871 (34 & 35 Vict. c. 43), is not to vary the liability of persons, but merely to provide a convenient method for the ascertainment and recovery of dilapidations. (Per curiam Wright v. Davies (C. A. 1876), 1 C. P. D. 638, 46 L. J. C. P. 41, 35 L. T. 188, 24 W. R. 841.) Under this statute surveyors are appointed for each diocese (s. 8). The surveyors make reports after inspection upon the complaint of the archdeacon, rural dean, or patron, or upon the request of the incumbent (ss. 12 & 14). The report must contain a detailed specification of the works required, the estimated cost, and the time within which the works should be executed (s. 15). The Act also makes provision for benefices under sequestration (ss. 13 & 14). The incumbent or sequestrator is entitled to object to the report on any grounds of fact or law, and the objection is to be determined by the bishop (s. 16). There is also a provision made for the residences of the higher church dignitaries (ss. 25 to 28). Where no objections are taken to the report of the surveyor, and the living is sequestered, the sequestrator is not justified in expending a larger sum than is estimated by the report as necessary. Kimber v. Parravicim (1885), 15 Q. B. D. 222, 54 L. J. Q. B. 471, 53 L. T. 299, 33 W. R. 907.

The avoidance of the living occurring after the report does not affect the report, order, or proceedings thereunder, but the report is to be acted upon as if the report had heen made after a vacancy (s. 24).

The provisions respecting the carrying out of the order made on the report are contained in sections 19, 20, 21, and 23. Where a complaint is made to the bishop by the archdeacon, rural dean, or patron, if the incumbent, within 21 days after notice of such complaint, informs the bishop in writing that he intends to put the buildings in proper repair, the bishop may give him a reasonable time to do so, and if satisfied that the necessary repairs have been executed must abstain from further proceedings. The bishop is however entitled, during the progress or after the completion of the repairs, to direct the surveyor to inspect and report on the repairs, and if the repairs are reported to be insufficient may proceed as if the incumbent had not given notice of his intention to do the repairs (s. 22).

When the repairs are finished to the satisfaction of the surveyor, he gives a certificate which is conclusive evidence of the due execution of the prescribed works (s. 46). No further order can be made, except at the request of the incumbent himself, for the execution of further works for a period of five years from the filing of the certificate, and if the incumbent dies within that period his personal representatives are exempted from liability, but this exemption does not extend to an act of wilful waste (s. 47). There is another exception of damage by fire where the buildings are not insured against fire (s. 47).

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Within three months after an avoidance, the bishop may direct an inspection by the surveyor for the purpose of making a report on dilapidations, unless the late incumbent is free from liability by reason of section 47 (s. 29). The three months refer to the direction of the bishop and not to the report of the surveyor. Gleaves v. Marriner (1876), 1 Ex. D. 107, 34 L. T. 496, 25 W. R. 539. The section has been held to be directory, and a direction may be given by the bishop after the expiration of the three months. Caldow v. Pixell (1877), 2 C. P. D. 562, 46 L. J. C. P. 541, 36 L. T. 469, 25 W. R. 773. The procedure is practically the same as under the earlier sections: (see sections 30, 31, 32, 33, 34, and 35). The sum stated in the order made by the bishop is "a debt due from the late incumbent, his executors or administrators, to the new incumbent, and shall be recoverable as such at law or in equity (s. 36). The sum so stated may be proved pari passu with the debts of the other creditors of a deceased incumbent. In re Monk, Wayman v. Monk (1887), 35 Ch. D. 583, 56 L. J. Ch. 809, 56 L. T. 856, 35 W. R. 691.

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The statute enacts (s. 53), "No sum shall be recoverable for dilapidations in respect of any benefice becoming vacant after the commencement of this Act, and to which this Act shall be applicable, unless the claim for such sum be founded on an order made under the provisions of this Act." Where the benefice is under sequestration at the death of the incumbent, the sequestrator cannot be made liable for dilapidations ordered to be repaired under section 34. Jones v. Dangerfield (1876), 1 Ch. D. 438, 45 L. J. Ch. 161, 34 L. T. 387, 24 W. R. 203. In that case, as the deceased incumbent had left no estate, the new incumbent was left without a remedy, although there were surplus profits from the benefice accrued in the lifetime of the late incumbent. The Act applies to all such houses of residence, chancels, walls, fences, and all other buildings and things as the incumbent of the benefice is by law or custom bound to maintain in repair" (s. 4).

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AMERICAN NOTES.

This principle has no place in American jurisprudence.

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