An agreement to forego such a claim would probably be simony. engrafted upon it the condition that neither party shall be liable to the other for dilapidations. I see nothing to show that; and I do not see any consequence derived from the admitted contract to exchange and the exchange actually completed, operating against the right of the party entering to claim for dilapidations. The facts found in this case preclude the necessity of the court considering the effect of a positive agreement to that effect; there is no such agreement here; the parties have the same right as they would have in case of a presentation to a living, when it is clear that the plaintiff would have a right to claim for dilapidations against his predecessor. I think, therefore, that the judgment must be in his favour." The judgment of Parke, B., is to the same effect. "I entirely agree," he says, "in opinion with the lord chief baron. The first question is, whether there is in this case any agreement between the parties, that if the living were exchanged each should omit to sue the other, and, in effect, give up to the other any claim for dilapidations. The case finds that there was no specific agreement; and it would be very wrong to infer from the facts stated in the case, that there was such an agreement; and even if there were, I cannot help concurring in the doubt which has been expressed whether it would be valid and binding. appears to me to savour of simony. It "The next question is, whether, by law, the claim for dilapidations does not apply to a successor by exchange as well as to another. The law upon that subject is expressed in the written declaration of what was the common course in the olden times. In the case of Wise v. Metcalfe, that declaration will be found to be the foundation of the judg ment of the court; and it is extended to all rectors. It states, in effect, that all prebendaries, rectors, vicars, &c., shall be required to repair and support their parsonages, and so on, and to deliver them to their successor repaired and supported; and if they do not, they shall pay such a sum to their successors as shall be necessary for the reparation, or necessary re-edification of the house or building. That statement of the law applies to all successors of persons ceasing to possess the living. If they have permitted dilapidations, they are to pay to their successors so much as shall be necessary to put the rectory into a proper state of repair. Such being the law, there is no doubt the plaintiff was the successor of the defendant. It is said that it could not be known till the exchange was com pleted, whether he would be his successor: there can be z 10 Barn. & Cres. 299; 5 Man. & Ryl. 235, 965. no doubt that it was a defeasible right to the living, until the other incumbent was inducted; but I do not think there can be any doubt, that when induction took place on his taking possession, he became the successor, and his predecessor became liable for the dilapidations. The circumstance of the right being defeasible, I do not think constitutes a defence; but it is unnecessary to decide that question here, because the other incumbent was inducted also. The case therefore appears to me to be clear on both points. It is found that there was no agreement between the parties that the one should give up the right to dilapidations as against the other, and there is no exemption to the operation of the general law applying to a case of mutual resignation, with a view to an exchange of livings." Rolfe, B., says, "I am of the same opinion. Suppose, instead of an exchange, it had been an acceptance by the other party of the living, there is no doubt the common law right would have attached; and I see no ground for making the slightest difference. This is an acceptance of a living under a special contract, a case in which the law allows a contract, that, in consideration of one resigning his living, the other shall resign also. I do not enter into the argument as to what would be the law in the intermediate period between the first and second presentation. I think the same principle would still apply; but there is a great analogy between this and the exchange of land; the exchange may become wholly void by the death of one of the parties before the transaction is completed. Upon the whole, I entirely concur in the opinion which has been expressed, and particularly in the doubt intimated, whether an agreement to waive the claim for dilapidations would have been a valid agreement." An exchange of portions of glebe lands may be effected Exchange of by incumbents, under the powers of and in the manner pro- glebe lands. vided by some recent acts of parliament; such exchanges are of a different nature, and altogether distinct from those which we have been considering in the present chapter, and will be found fully treated in the section which has been devoted to that purpose.b SECTION 4. Of forming and dissolving Unions of Benefices. Union is the uniting, consolidating, and combining two Union, what it See the whole case of Downs v. Craig, 9 Mees. & Wels. 166. b Ante, Book II. Chap. I. Sect. 4. is. Manner in which unions were formerly made. Whose concur to an union. churches into one, by which consolidation one of the benefices becomes extinct in law. And the principal reasons assigned for it by the canon law are for hospitality, nearness of the places, want of inhabitants, poverty, or smallness of the living. There appears to be some doubt whether, by the ancient common law, benefices might have been united and combined, or whether the fact of union or no union was a matter into which the common law courts could inquire. In Lord Raymond's Reports, a case is referred to in which it is said, union was made concurrentibus his quæ in hác parte de jure requirebantur; and exception was taken, that it was not said by whom the union was made; but it was answered that this was the act of a spiritual judge, and the common law would not examine it, no more than sentence of the spiritual court.d Unions were made by the ordinary, patron and parson, or during vacancy by the two former; and in some cases the king's consent was also necessary. For where the churches were very poor, and consequently the king's inrence necessary terest in them very small, it appears that his consent was not deemed necessary: but if they were of reasonable value, it then became essential, because an advowson was a thing which lay in tenure, and might be held in capite, and therefore the king might be prejudiced in his ward; and secondly, he might be barred of a casual profit, as a lapse, which in probability might happen sooner where there were two churches than where there was but one; but yet the ordinary was the chief actor; and therefore, if the consent of the king was subsequent, it was sufficient. Restraint of But it appears that previously to the 37th year of Henry union by statute. VIII. the law was very uncertain as to what churches were poor enough to be united; which uncertainty gave occasion to the making of the statute in that year, by which it was declared that an union or consolidation of two churches in one, or of a church and chapel in one, the one of them not being above the yearly value of 67. in the king's books, and not distant from the other above one mile, may be made by the assent of the ordinary and ordinaries of the diocese where such churches and chapels stand, and by the assents of the incumbents of them, and of all such as have a just right, title, and interest to the patronages of the same churches and chapels, being then of full age; which unions and consolidations so made shall be good and available in C Gibs. 920. d Vide Reynoldson v. Blake and the Bishop of London, 1 Ld. Raym. R. 195. the law, to continue for ever, in such manner and form as by writing or writings under the seal of such ordinaries, incumbents, and patrons, shall be declared and set forth. Provided, that where the inhabitants of any such poor parish, or the more part of them, within one year next after the union or consolidation of the same parish, by their writing sufficient in the law, shall assure the incumbent of the said parish for the yearly payment of so much money as, with the sum that the said parish is rated and valued at in the court of first fruits and tenths, shall amount to the full sum of 81. to be levied and paid yearly by the said inhabitants to the said incumbent and his successors, all such unions or consolidations made of any such poor parish as aforesaid, shall be void and of none effect. According to the case in Lord Raymond's Reports, it was the making of this statute which gave jurisdiction to the common law to examine if unions were well made, as marriages, it is there observed, though they were originally alterius fori, yet when the act of parliament meddled with them, it gave jurisdiction to the temporal judge; and therefore the common law took so far notice of unions after the act, that the judges granted a prohibition to the spiritual court for suing the parishioners to come to church upon an union where the union was void. But as this act was in the affirmative only, and not in the negative, that is to say, sanctioning in some cases but not restraining in others, it was held, in a case in the temporal courts, that unions might still have been made at common law of churches of greater value than that mentioned in the act. But this seems to have been a doubtful case, and there was a difference of opinion in the judges upon it; nor is it easily reconcilable with what has been said before, that the common law derived its jurisdiction in these matters from the statute. This statute gave jurisdic tion to the common law courts. Unions in cities and corporate towns formerly. In the seventeenth year of Charles II. another statute was passed, which provided for the union of churches in cities and corporate towns; and it was declared that, in case of such unions, the parishioners and inhabitants should pay such tithes and other duties as had belonged to the incumbent of the united church to the incumbent of the church to which it was united and annexed; but that, notwithstanding such union, each of the parishes so united should continue distinct as to all rates, taxes, &c., and that churchwardens should be elected and appointed Effect of the for each parish as before. By union, the one church union on the became extinct; and of the two benefices, the more worthy was retained; or it rather seems to have been con advowson. Union might be made prospectively. Repairs in of unions. sidered that both the old churches were extinguished, for that the church united was a new thing created, not the ancient rectory or vicarage of either retained, but novum aliquid tertium, composed of both. Thus, though the advowson of one of the united churches might have been appendant, yet the appendancy would have been destroyed by the union, for appendancy consists wholly in prescription, whereas the beginning of the new church and the advowson would be well known; and to make a new church appendant would be in effect to make that which is done at this day to be done long ago.i The advowson therefore of a church which has been united is necessarily an advowson in gross, and the patronage would go on every second turn to the several former patrons, or in any other manner upon which they might agree; but they could not by agreement create an appendancy. It has been said patrons of united churches have several rights, and that their possessions are also several, so that the one might usurp upon the other and drive him to his quare impedit; that tenants in common of an advowson have several rights but joint possessions; that coparceners of advowsons have several rights but possessions partly joint and partly several; but that patrons of united churches have both rights and possessions several; consequently that their writ of right ought to be de medietate advocationis.k In the same case from which the above is quoted it is said of the operation of an union, that it was generally made in time of vacancy of the church; for if the church was full, the act of the ordinary could not prejudice the incumbent, for by the union the incumbency would be destroyed; therefore if the church was full, the consent of the incumbent was necessary. But if the church was full, and the incumbent would not consent, the union could not be made de verbis in præsenti; but it might be made de verbis in futuro, quando vacaverit. And after the union the ordinary might compel the parishioners to come to the church to which the union was made, and to pay their tithes by process in his court, and no prohibition was grantable; and this was no prejudice to the parishioners, because their modus continued good; but the parish, as to taxes, duties, rates, reparations of the church, &c. concase tinued distinct. The reparations must be several, for otherwise it might be prejudicial to the parishioners, because |