livings. Upon an exchange of livings by agreement, after mutual Chap. III. s. 4. institution and induction, one incumbent may sue the Remedy on other for dilapidation; and this, although neither party exchange of at the time may have contemplated any such claim. For they have the same rights as in a common case of presentation; and it cannot be implied in such an agreement that either party was not to be liable for dilapidations (). If, however, there be such an agreement, it is not necessarily simoniacal (m). A prebendary, or his personal representative, is liable to Liability of the successor for the waste of a prebendal house (n). And prebendary, in like manner a vicar-choral of a cathedral, or his repre- Vicar-choral, sentative, is liable at the suit of his successor in respect of dilapidations to the house which he held as vicar-choral (o). So, also, a sequestrator might be sued for dilapidations (p). Sequestrator. But since the passing of the Ecclesiastical Dilapidations Act, 1871, a sequestrator in whose hands a sum of money remains upon the death of the incumbent is not liable in respect of that sum for dilapidations not reported until after the death of the incumbent; for by that Act the claim for dilapidations in such a case is a debt due from the representatives of the late incumbent (g). An action Vicar acceptfor dilapidations lies by the succeeding vicar against his ing a benefice. predecessor, who, by taking a benefice, has lost his vicarage (r). It has been held, however, that a curate appointed by Curate withthe impropriator, and licensed by the archbishop, but not out institution or induction. Part I. Perpetual curate. Bishop. instituted or inducted, is not liable to be sued for dilapidations (s). But a perpetual curate not removable at the will of the patron is so liable (t). Although there exists no precedent of an action at common law by a bishop against his predecessor or representatives, and the custom, as generally pleaded in the old precedents, does not specify bishops (u), yet there seems to be no sufficient reason for doubting that upon principle such an action would lie. The action itself is an anomalous one, the right to which in the Temporal Courts was not settled till the end of the seventeenth century (e); and the authorities show that the fact that the precedents do not mention bishops, or that no such action has hitherto been brought, would not be conclusive against the existence of a right of action against such persons (). Not only may the Crown and the Metropolitan proceed against a bishop for dilapidations (x), but there seems to be one precedent at least of proceedings in the Court of Arches by a bishop against the representative of his predecessor, in which a claim was established to a very large amount in respect of dilapidations to the palace and cathedral ( y). D'Oyly, 2 T. R. 630. (x) See Jefferson v. Bishop of Durham, 1 Bos. & Pul. 105, 131, per Heath, J. And see Wither v. Dean, &c. of Winchester, 3 Mer. 421; Knight V. Moseley, Amb. 176. (y) The case is thus referred to in Nelson's Rights of the Clergy (2nd ed.), tit. Dilapidations:-"The prose"cution for this offence "was brought by Bishop Ban"croft against the son and "heir of his predecessor Bis"hop Aylmer; against whom "he obtained a sentence in Remedies have been from time to time provided by Chap. III. s. 4. particular statutes (z); but at the present day, as regards Remedy by parochial clergy, claims in respect of dilapidations fall statute. under the provisions of the Ecclesiastical Dilapidations Ecclesiastical Act, 1871 (a), which, while leaving unchanged the com- Act, 1871. Dilapidations mon law duty and liability of incumbents, has created a new machinery for enforcing them (b), and has made an important change in the form of remedy for dilapidations, by substituting, in lieu of the former action on the case, an action for an ascertained amount which becomes a debt. This Act came into operation on the 1st of August, 1871 (c). As a lengthened examination of its provisions would be out of place in these pages, it will be sufficient here to state shortly the purport of those sections which are more immediately connected with our present subject. "the Arches for 4,2107. for 66 dilapidations in the Palace "and Cathedral of his bishop"ric; and because the son "had not a personal estate "from his father sufficient to "satisfy the damages, the "Lord Treasurer Burleigh "was desired to exhibit a bill "in Parliament for the sale of "so much of Bishop Aylmer's "estate as might discharge "the same. "Tis true such a "bill is very equitable, espe"cially when the lands which "descend to the son were pur"chased with that money, "which should have been laid "out in repairing the Church; "and, therefore, the heir post, p. 208. (~) See 13 Eliz. c. 10; 14 Eliz. c. 11 (repealed in part by Statute Law Revision Act, 1863); 17 Geo. III. c. 53. See, too, 34 & 35 Vict. c. 43, s. 73. It is said also to be good cause of deprivation if an ecclesiastical person dilapidates the patrimony of the Church. 3 Bl. Com. 91; Degge, p. 137; Wood's case, cited 12 Mod. 237; 3 Inst. 204; Bishop of Salisbury's case, Godbolt, 259; Combe v. De la Bere, 6 P. D. at p. 164. (a) 34 & 35 Vict. c. 43, amended by 35 & 36 Vict c. 96. The amendments effected by the later Act are not material for the purposes of this work. (b) See Wright v. Davies, 1 C. P. D. at p. 647, per Brett, J., and at p. 651, per Jessel, M. R. (c) 34 & 35 Vict. c. 43, s. 1. Part I. diocesan surveyors. The Act provides for the appointment of diocesan surInspection by veyors (d), who are to inspect and report upon the state of such of the houses of residence, chancels, walls, fences, and other buildings and things belonging to a benefice (e), as the incumbent is by law or custom bound to maintain in repair (f). Such inspections may take place either when the benefice is full, or upon a vacancy occurring. Execution of In the former case, where the incumbent fails to execute repairs. the repairs prescribed by the surveyor in his report, the bishop may raise the prescribed sum by sequestration of the profits of the benefice (g), and the repairs will then be executed under the direction of the surveyor, who may employ builders or contractors for the purpose (h). In the latter case, upon the bishop making an order stating the repairs and their cost, for which the late incumbent is, or his executors or administrators are, liable, the new incumbent is to cause the repairs to be executed, and the sum stated in the order as their cost is to be a debt due Recovery by new incumbent of cost of. (d) 34 & 35 Vict. c. 43, ss. 8-11. (e) The term "benefice" in the Act comprehends all rectories with cure of souls, vicarages, perpetual curacies, donatives, endowed public chapels, and parochial chapelries, and chapelries or districts belonging or reputed to belong, or annexed or reputed to be annexed, to any church or chapel. Sect. 3. (f) Sects. 4, 12-16, 29-34. The provisions of sect. 29 as to the time within which the bishop is to direct an inspection and report after the avoidance of a benefice, are directory only and not imperative. Caldow v. Pixell, 2 C. P. D. 562; Gleaves v. Marriner, 1 Ex. D. 107. (g) Sect. 23. The sequestrator is to pay the profits of the benefice (after certain deductions) to the Governors of Queen Anne's Bounty untilthe whole of the sum stated has been paid, and the governors are to pay such moneys to the credit of a dilapidation account to be opened by them. Sects. 20, 21. (h) Sect. 45. As to the vacation of a benefice after inspection and before a certificate of completion of repairs has been signed, and the liability of the outgoing and incoming incumbent respectively, see sect. 49. to him, and recoverable from the late incumbent or his Chap. III. s. 4. representatives (i). new incum If the new incumbent fails to have the specified repairs Failure by done they are to be executed under the direction of the bent to exesurveyor, who, as in the case already mentioned, may em- cute repairs. ploy persons for the purpose (j). Bounty. The Governors of Queen Anne's Bounty are empowered Loans from, to make loans, either to incumbents or new incumbents, to, Queen and payments and such loans are to be placed to the credit of a dilapida- Anne's tion account opened by the governors with the incumbent in question (). Any amounts recovered by a new incumbent from his predecessor, or his representatives, in respect of dilapidations, are to be paid to the governors to the credit of this dilapidation account (or, if no loan has been made to the new incumbent, to the credit of a dilapidation account then to be opened), and the new incumbent is also to pay to the governors, to the credit of the said account, such sum (if any) as together with the sums theretofore carried to the credit of the said account will make up the sum stated in the order as the cost of the repairs (1); and these payments may be enforced by sequestration (m). repairs. As regards the mode of payment for repairs executed, Payment for the Act provides that, to the extent of the moneys standing to the credit of the dilapidation account (if any has been opened), the governors are to pay for the repairs executed, but if any further sum is required for the completion of the repairs, the same is to be paid by the incumbent (n). (i) Sects. 34, 36, 42. The claim under the statute will therefore rank with the other debts of a deceased incumbent. See 32 & 33 Vict. c. 46. And see Judicature Act, 1875 (38 & 39 Vict. c. 77), s. 10. As to the difference in this respect between actions under the statute and actions upon (j) Sect. 45. (k) Sects. 17, 18, 38, 39. (n) Sects. 44, 45. There are no provisions in the Act for |