bishop,-are precisely the same as those of the first-mentioned act, which we have already explained and analyzed, and might probably have been more simply provided for by a reference to that act.

We have now gone through the several statutes providing for the erection of suitable and convenient houses of residence on lands which are already glebe.

It remains to be particularly observed, that the last of these statutes does not operate as a repeal of the former ones; and, moreover, that it is altogether inapplicable to the case of any living, until there has been an avoidance since the passing of the act.

It is clear, therefore, that any incumbent instituted prior to that time, August 14th, 1838, who should wish to avail himself of these provisions for building a new house of residence, must proceed according to the directions of the 17 Geo. III. c. 53, as altered by 1 & 2 Vict. c. 23. In such a case, consequently, the extent of the amount to be taken up at interest would be three and not four years' value of the income of the living, and the details of his proceeding would be regulated in all respects by the provisions of the former acts, which should be adhered to even in those cases where the latter act has introduced any variance.

In what cases the first acts are

still in force.

We have seen that the bishop, upon or at any time after Commission the avoidance of any benefice, is required to issue his com- may be issued mission. Whether or not this may be strictly consistent been filled. after living has with any discretionary power vested in him, it seems clear from the following section, which directs the report to be transmitted to the patron or incumbent (if any), that the proceeding may be under this statute, notwithstanding the benefice is filled.s

Since the passing of this last act, and in the year 1839, power has been given to archbishops and bishops to raise money on the mortgage of their sees, for the purpose of building and otherwise providing fit houses for their residence. It would, however, appear scarcely necessary to enter into the different provisions of the statute which directs the manner in which this money is to be raised, since the details are the same as those to be observed in the case of money raised by an incumbent of a benefice.

It will be observed in this section, that provision is made for compelling the insurance from fire of houses built under the provisions of the Gilbert Act, and Benefice Pluralities Act, and there appears to be every reason why the same should be made compulsory in the case of all houses of residence generally; for this, at a moderate expense, might prevent the benefice from becoming charged with the mortgage debt contracted for rebuilding in such a case.

2 & 3 Vict. c. 18.

Mortgages by

bishops for

same purposes.

The interest of the sum borrowed is to be paid halfyearly; one-thirtieth of the principal at the end of the third year, and the same at the end of every subsequent year, until the whole is repaid. The house purchased or built must be within the province or diocese, in the case of archbishops and bishops respectively. The money borrowed is to be paid to a nominee or nominees in the same manner, and whose duties are the same as those already mentioned. The houses built or purchased are, in the same manner, to be insured from fire. Power is also given to purchase land for the purpose of a site and premises; and incapacitated persons are authorised to sell land for such purposes. In the case of the avoidance of a see, the archbishop or bishop avoiding it, or his executors, are to pay a proportion of the half-yearly interest, and of the annual instalment of the principal; and the governors of Queen Anne's Bounty are in like manner, as in the other cases, authorised to advance the money at four per cent. interest.

Freehold of glebe, &c. in abeyance.

Crops growing

at decease of incumbent.

SECTION 7.

Rights as between Successive Tenants for Life.—
Dilapidations.

An important branch of the law relating to the real property of ecclesiastical corporations sole, is that by which the rights in it are adjusted as between the successive tenants for life; for under this is included the subject of dilapidations, and with the consideration of these subjects, we shall be enabled to conclude the present chapter.

Upon the death of the parson of a church, or of other ecclesiastical person seised jure ecclesia, the freehold of his glebe, or other ecclesiastical lands, is in abeyance," that is, in expectation, remembrance or contemplation of law, until a successor is appointed; and the fee simple in such lands may be said to be always in abeyance, and this is one of the few instances in which a freehold estate can be in abeyance; for it is a principle of the highest antiquity in our law, that there should always be a known and particular owner of every freehold estate, from reasons derived partly from general convenience, and partly derived from feudal times.

In case any incumbent, before his death, has caused any of his glebe lands to be manured and sown at his own proper costs and charges with any corn or grain, he may

n Litt. 674.

make and declare his testament of all the profits of the corn growing upon the said lands so manured and sown. * But, in such a case, it is presumed that the succeeding incumbent would be entitled to some share, or to compensation in respect of the profit which might have been made by him of the glebe lands since the time at which they came into his possession; for this is agreeable to the equity of succeeding statutes as to apportionment, and of the cases decided thereupon."

cumbents.

In a case where a lease for years, made by a rector, Apportionment had ceased by his death, the succeeding incumbent re- of rent between ceived from the lessee a sum of money as the rent due for successive inthe whole year, in the course of which the lessor had died. But upon a bill filed by the executor of the deceased rector against the succeeding incumbent, it was held that the plaintiff was entitled to an apportionment." This case was decided subsequently to and in pursuance of the statute 11 Geo. II. c. 19, which enacts, that where any tenant for life shall die before or on the day on which any rent was reserved or made payable, upon any demise or lease of lands, tenements or hereditaments, which determined on the death of such tenant for life, the executors or administrators of such tenant for life may, in an action on the case, recover from such under-tenant or undertenants of such lands, &c., if such tenant for life die on the day on which the same was made payable, the whole, or if before such day, then a proportion of such rent, according to the time such tenant for life lived of the last year or quarter of a year, or other time in which the said rent was growing due, making all just allowances, or a proportionable part thereof, accordingly. And in order that the payment of such year may be justly and equitably ascertained and adjusted between the successors and the parson, vicar, or incumbent, avoiding such living by death or otherwise, or his representatives, in such proportions as the profits of such living shall have been received by them respectively for the year in which such death or avoidance shall happen, it is enacted, that in case any difference shall arise in adjusting or settling the proportions aforesaid, the same shall be determined by two indifferent persons, the one to be named by the said successor, and the other by the person making such avoidance, or his representatives in case of his death; and in case such nominees shall not be appointed within the space of two calendar months next after such death or avoidance, or if

28 Hen. 8, c. 11.

y 11 Geo. 2, c. 19; 4 & 5 Will. 4, c. 22. Hawkins v. Kelly, 8 Ves. 308,

miscultivation

of lands.

they cannot agree in adjusting such proportions within the space of one calendar month after they shall have been appointed, the same shall be determined by some neighbouring clergymen, to be nominated by the ordinary, whose determination shall be final and conclusive between the parties; which nominations and determinations shall be made according to the forms for that purpose contained in the act.

And as to apportionments, the principle of the lasttioned act is extended by the stat. 4 & 5 Will. IV. c. 22, by which the principle of equitable apportionment is applied to all property which consists in periodical and fixed money payments, such as rents, rent charges, &c. Whether, therefore, under this statute, or independently of it, there can be no doubt but that the rent of glebe and other ecclesiastical lands would be fairly apportioned between the deceased or outgoing and the incoming tenant for life; nor would the case be different in principle, where the lands had been in the actual occupation of the former."

No action by But there is no law which compels the incumbent to a successor for cultivate the glebe lands in a proper and husbandlike manner, so that the successors may receive them in that state; nor could there be any actions for dilapidations, although the land had been miscultivated. For, as observed by Lord Denman, in order to render the executors of an incumbent liable for dilapidations, there must be something of demolition; and there is, consequently, no ground for saying they could be liable for mismanage ment of the glebe lands. And it was said by another of the judges in the same case-" An action by a landlord against a tenant for the mismanagement of his farm, lies on an implied contract to cultivate the lands in a husbandlike manner: no such contract can be implied between the parson and his successor."

Secus, for nonrepair of

hedges, fences, &c.

Duty of repair on new lands acquired as glebe, fences,

&c.

But the hedges, fences, gates, &c. upon glebe lands, are among the things of which the beneficed parson has the burden and charge of reparation; and there is no doubt that as to such things, the executors of a deceased incumbent are liable to the successor for dilapidations, if these have been allowed to become decayed or ruinous.

And the decision come to after deliberation in this same case is not only important in itself, but likely to become much more so from its applicability to the numerous cases in which, under the recent statutes, new lands may be acquired as glebe; for it was there decided, that an allot

a Sect. 2.

b Bird v. Ralph, 4 Barn. & Ad. 826. Littledale, J., in Bird v. Ralph, 2 Ad. & Ell. 773.

ment made to a vicar in lieu of tithes under an inclosure act, is subject to the law and custom of England as to dilapidations equally with the ancient glebe; and if when the vicar comes into possession of it there are fences upon it which he ought to repair, but which he dies leaving unrepaired, his executors are liable at the suit of his successor. In that particular case land was by the act to be first well and sufficiently fenced, in such manner as the commissioners should direct, at the public charge; but for ever afterwards to be repaired at the charge of the vicar and his successors. And an appeal was given to parties aggrieved by anything done in pursuance of the act, provided the appeal was brought within four months. The fences which were put up by the commissioners being calculated to last only three or four years, became ruinous, and so remained until the death of the incumbent, about eleven years after the inclosure; no steps having been taken by him to obtain a remedy for the neglect to fence properly. It was held, that as no appeal had been brought, the commissioners must be considered to have done what was necessary; and that the representatives of the deceased vicar were liable to the successor for dilapidation of the fences. And it was expressly stated by Mr. Justice Littledale in giving judgment, that this decision did not rest upon the particular directions of the act, which cast the burthen of repair on the vicar and his successors; but that as it came to the vicar in an inclosed and fenced state, he was bound by the common law to keep it so, at his own expense.d

If a benefice were endowed with new land, or with an allotment of common, or if any land were acquired to it as glebe, by virtue of any exchange or by purchase under the recent acts, or, as it is to be presumed, in any other manner, and there were no fences upon it, the incumbent would not, in the absence of special enactment or agreement, be bound to put up fences; for that would only be like the case above-mentioned of a mismanagement of the glebe lands; and there would be nothing of the nature of demolition, so as to render his representatives liable for dilapidation. But if he were in any such cases to put up fences, &c. he must then keep them in repair for the future; and if they should be left in a ruinous state, an action for dilapidations in respect of them would lie.f

cumbent upon

every acquisi

It becomes therefore of great importance in every case Duty of an in in which new land is to be acquired to any benefice as glebe, that the incumbent should take care that all those tion of new d See judgment of Littledale, 2 Ad. & El. 781. eBird v. Ralph, supra.

f Littledale, J., supra.

lands.