COUNCIL.* THE BISHOP OF LIMERICK, APPELLANT; REV. £240 12s. 8d. was awarded under a commission of JUDICIAL COMmittee of tHE PRIVY decay contradicts. We, therefore, submit for the consideration of your Grace's Vicar-general whether, under the circumstances, there are good grounds for the vacator being exempt from any portion of the divisional charge under the second class." The appellant filed objections to this report in the Armagh Consistorial Court, upon the following grounds:-That by the 14th & 15th Vic. c. 73, s. 27, the test of the liability of the outgoing incumbent consists not in the character, but the cause of the dilapidations, the section enacting the liability only in those cases in which the dilapidations arose from the want of annual and necessary repairs. That the statute contemplated that the dilapidations which arose from either accident or from the want of permanent and substantial repairs and improvements, and are without wilful default, should be repaired by memorial and charge or by money raised on mortgage of the living. For these report was defective, upon the grounds that it reasons it was submitted by the appellant, that the omitted to state the cause from which the dilapidations had arisen, and appeared to have ranged all were immediately required, and those which were under two classes, namely, those repairs which not required, or to be executed until a future period, and that even adopting the classification of the commissioners as to the "annual and necessary repairs," and the "permanent and substantial repairs," the appellant was not bound to pay any portion of the items contained in the second class. The several objections having been argued before Dr. Radcliffe, the Vicar-general, he confirmed the said report in February, 1855, with the exception of certain items of trifling amount, which he held were not chargeable against the appellant. The ruling of the Vicar-general was to the effect that the classification of the items of dilapidation adopted in the schedule of the report was substantially equivalent to that contemplated by the statute, and that, no matter what may have been the cause, the outgoing incumbent was liable for all the dilapidations, either as immediate or prospective. THIS was an appeal from the order of the Lord Primate of the 19th of March, 1855. From the petition it appeared that the appellant was inducted to the Rectory of Clonfeacle in the Diocese of Armagh in 1829, and that at that time a sum of dilapidations to be paid by the representatives of the appellant's predecessor. The appellant held the Rectory till November, 1853, when he was promoted to the see of Limerick, and the respondent thereupon was presented to the rectory. On the 16th of March, 1854, a commission of dilapidations issued under the archiepiscopal seal to commissioners therein named. From the report of the commissioners it appeared that dilapidations had taken place to the amount of £1,620 8s. 8d., the particulars of which were divided into two, containing a different class of dilapidations in the schedule to the report. The first class were headed "annual and necessary repairs," amounting to £899 14s. 24d., and the second headed "substantial permanent repairs, perspective," £720 14s. 54d. As to the first, the commissioners found that as the appellant had a commission against his predecessor, and had received the amount found by it, they considered that he was not entitled to exemption from any part of the £899 14s. 21d. The commissioners apportioned the sum of £720 14s. 5d. contained in the second class, and charged the appellant with part of same to the amount of £593 8s. 11d. The commissioners specially reported in reference to the roofs of the glebe house and barn as follows: "We further beg leave to report that as it appears to us, by the documentary evidence received from the Registry Office, that the vacator used all due diligence and care to ascertain the extent and cost of the dilapidations which had taken place in the glebe and offices up to the time of his induction. We, therefore, beg leave to call your Grace's attention to the returns now made of the roofs of the glebe and barn, the former requiring renewing at the expiration of fifteen years, and the latter immediately, and as these parts of the edifices have been in use for fully a century we consider, from their present defective state, that they must have been in an advanced state of decay at the time of holding the last commission of dilapidations, though the amounts then paid would lead us to suppose they were in a state of comparatively good repair, which their now very advanced state of progressive Members Present :-Lord Chancellor, Moore, J., Baron Greene, Rt. Hon. R. Keatinge, Rt. Hon. A. Brewster and Right Hon. Joseph Napier, Ball, Q.C., and Griffin, for the appellant, argued that the construction given to the act by the VicarGeneral was erroneous, and that the correct interpretation was, that the outgoing incumbent was liable for all dilapidations which had arisen from the want of proper annual and necessary repairs, but no other; and that he was to be exempted from those which had arisen from want of permanent and substantial repairs, unless he had been guilty of wilful negligence in not executing them at the proper time, by memorial and charge, or by money raised by mortgage-that the appellant should not have been held liable for any part of the items of dilapidations in the second class of the schedule to the report, inasmuch as the repairs which should under it be made are all admittedly permanent and substantial, and all prospective, and not requiring to be immediately effected, and that the amount which he was directed to pay should be diminished by the sum of £593 8s. Ild. Battersby, Q.C., and Wiley, for the respondentIn this case there is no evidence of accident, or in solvency, or that the house is too old to be re E paired, or of anything but of dilapidations arising dent-Sollers v. Lawrence, (Willes, 420; Gibbons, from time and want of repair. Accident, inability 31-2; Wiley, 19, 33)-or insolvency, (Conset. cap. in the incumbent or insolvency of a predecessor, by 10, s. 1, par. 2, p. 363; Clark Provis. Tit. 123, p. reason of which the successor was unable to re- 167; Wily, 44). The statute law was to the same cover for previous dilapidations, alone, exempt effect, but giving to the builder on a new site the from liability. Here the house was built in 1752, whole expenditure against his successor to the exat an expense of £984. Improvements at the ex- tent of two years' income; and in the case of repense of the parish were added, and charged by pairs or additions, three-fourths, which successor certificate to the amount of £1,273. In 1824, Dr. should receive two-thirds from his successor, and Wilson got from Dr. Davenport £483 for dilapi- he one-fourth from his successor— -10 W. 3, cap. 6, dations. In 1829 Dr. Griffin got from Dr. Wilson, ss. 1, 6, 8; 12 Geo. 1, c. 10, ss. 1, 2, 3, 4, 8, 9; his predecessor, £240, dilapidations, after five years' 7 G. 3, c. 9, s. 1 ; 1 & 2 G. 3, c. 17, ss. 3, 4, 5, 10.) occupation. In 1854, £1,492 has been awarded To consolidate and amend these laws the statute to Mr. Stevenson, against Dr. Griffin, after an oc- 14 & 15 V. c. 73 was passed, and sections 1 to 16, cupation of twenty-four years; and as to the sum inclusive, provide for the erection of new buildings, of £899 14s. 2d. for matters which require imme- or the completing of unfinished buildings, and diate repairs, no question arises. But as to the raising the amount by mortgage, each incumbent sum of £593 8s. 11d., part of the sum of £720 paying for every year of his engagement £2 10s. 14s. 5d. for repairs, which the commissioners say per cent of the principal outlay, instead of the first will be required in ten or fifteen years, it is objected improver having the whole from his successor, and that it is not chargeable against Dr. Griffith, but subsequent successors getting proportions from is to be charged on the benefice; because the roof their successors as formerly, this was according to on which the expenditure is required is old, and the the preamble of the Act. Section 27 enacts that, decay has arisen from the effect of time. Now," in case the mansion-house, &c., shall have been on comparing the schedule in the three certificates suffered to fall into decay for want of proper anof dilapidations, it will be observed that Dr. Wil-nual and necessary repairs, whether by the neglect son and Dr. Griffith were both allowed for the same sort of dilapidations that are stated in the present certificate to be "prospective," and the question is, whether, under the 14 & 15 Vic. c. 73, Dr. Griffin is now chargeable with these prospective repairs, after being allowed for them in part, and having occupied for twenty-four years, during which period he did not expend anything. The true mode of construing an Act of Parliament is, according to Lord Coke, 70 a, 381 a b, to look at the preamble, which is "a good means to find the meaning of the statute, and to construe one part of the statute by another part of the same statute, for that best expresseth the meaning of the makers ;" and "that construction must be made of a statute which is in suppression of the mischief and in advancement of the remedy." Here the preamble is to "consolidate and amend," and "to apportion more justly and equally the expenditure," and to "render the liability of ecclesiastical persons, in respect of dilapidations, less burdensome." The laws so to be dealt with, were the common law, the ecclesiastical law, and the statute law. By the common law the incumbent was bound to maintain the parsonage house and premises, and to keep them in good and substantial repairs, restoring and rebuilding when necessary, according to the original form, without addition or modern improvement. Wise v. Metcalfe, (10 B. & C. 299); Jones v. Hall, (3 Lev., 268); Platt, 284; Gibbons on Dilapidations, p. 48, s. 3; Woodfall, 438; Radcliffe v. Doyly, (2 T. R. 630). The ecclesiastical law was to the same effect-Conset. P. 1, c. 10, s. 1, p. 362; Clerk Prer. Tit. 122, p. 166; Deggs Parson's Counsellor, c. 8, par. 1, p. 134; Ib. cess. 9, p. 137-9; Lyndwode's, 250, Constitution of Edmond.; Deggs. Parson's Counsellor, 74; Brown Ecclesiastical Law, 155 note; Conset. cap. 10, s. 1; paragraph 3, p. 362. The ouly grounds of exemption were inevitable acc of the ecclesiastical person for the time being, holding, &c., or any of his predecessors, it shall be lawful to issue a commission, &c., and commissioners shall report the nature and extent of such dilapidation or waste, and the sum of money which they shall judge to be necessary for the effectual repairing of all such defects as shall so have happened by means of such dilapidation as aforesaid, and to restore the same to such staunch and habitable order and condition as that the same may be fit and proper for the residence of the said ecclesiasti cal person and his successors, and the nature of such repairs, and the manner in which same should be executed, and whether immediately or at some future time, and the probable cost and of expense executing the said repairs or improvements, and the amount which the ecclesiastical person, &c, should contribute to any such prospective repairs or improvements; provided always, that in case of dilapidations arising from want of any permanent and substantial repairs and improvements, and occasioned by inevitable accident, and without wilful default, and which might be effected by way of memorial and charge, or by money raised on mortmortgage payable in manner aforesaid, it shall be lawful for the said commissioners, and they are hereby required to make a special report in respect thereof, with a view to the exemption of same from any such estimate of dilapidation chargeable against any such ecclesiastical person, and the execution of said repairs by money raised by way of charge or mortgage, and in such case to inquire and report whether or not due and reasonable diligence has been exercised in effecting of the said repairs in a timely and seasonable manner, by memorial or otherwise; and also in case of dilapidations committed or suffered previous to the incumbency of the ecclesiastical person sought to be charged, to inquire and report whether such ecclesiastical per son used all reasonable diligence to obtain and en of his incumbency part of the charge for building, instead of getting the whole, as formerly, from his successors, after he has enjoyed for perhaps fifty years after the building; and as to "the liability in respect of dilapidations being rendered less burdensome," this will be by relief in case of accident, by mortgage, by gradual repayment of outlay at £2 10s. per cent., and by the apportionment of prospective repairs between the vacator and successor, instead of the whole being paid by the vacator, asformerly. Then, in the present state of benefices, the income is reduced about one-half, by the Church Acts and new taxes, many livings are already charged to the extent of four years' in come, and cannot be further charged under the existing law. The vacator is not to repair the buildings on them, as contended; such buildings must therefore continue their permanent and substantiaľ dilapidations until they fall. force a certificate of charge in respect thereof against his predecessor or his representative, and failed to do so from good and sufficient causes; and on the return of said report, person empowered &c., shall determine what portion of such repairs shall be done at the charge of (vacator), and what part thereof shall be done and executed by money raised by way of charge, or by money raised on mortgage in manner aforesaid, and to fix a time for the execution of the repairs of such dilapidations respectively, and to declare by whom and when the costs of said commission shall be paid." Section 30 provides for a commission on the application of the existing incumbent, and the effecting of repairs according to the nature thereof, as in the preceding sections. Section 31 provides for the rebuilding, in case the house be unfit for repairs. Prima facie this section, in the earlier part of it, which follows the previous statutes in its form and words, imposes the same liability, but the proviso LORD CHANCELLOR.-The final decision of this excepts two cases, in both of which the repairs re- matter rests with the Lord Lieutenant, and it will quired must be of a permanent and substantial be the duty of the Council to inform his Excelcharacter-one, the case of inevitable accident, lency of the opinion they have unanimously come without wilful default, where reasonable diligence to, and the view they take of the law. We therehas been exercised in effecting same in a timely fore do not pronounce a formal judgment, but, and seasonable manner; the other where dilapida- from what has transpired in the course of the artions have happened in a previous incumbency, and gument, I do not believe that any misapprehension all reasonable diligence has been used to obtain can exist as to the view the Council take of the and enforce a certificate of charge in respect matter, both on the general scope and purpose of thereof against the predecessor. In both those the Act, as they understand it, and the language cases the repairs may be done by money raised on of its provisions. The general object of the stamortgage; but in the present case, the dilapidatute is announced in the preamble-namely, to tions, so far, at least, as they occurred within the make more just and equitable the distribution of last twenty-four years, have not happened in the the charges for the repairs of glebe houses-which time of a predecessor, and it will not be "render-stands in this way that whatever is in the characing the liability of ecclesiastical persons less bardensome," or apportioning more justly and equally the expenditure." If Dr. Griffin is to pay nothing for twenty-four years, and Mr. Stevenson and his parish must pay the whole expense of a new roof; besides all dilapidation arises from the want of annual and necessary repairs originally. A house does not decay at once, but first the end of a beam begins, then a second, and mortar falls from a small part of a wall, then more and more by degrees, in time part of the roof or wall falls in, and then it requires permanent and substantial repair. The commission requires a report of dilapidations arising from want of annual and necessary repairs. The return only distinguishes between those requiring immediate repair, and those which, though requiring repair, will yet last for some time-Brown, Eccl. L. 155 n. Even dry rot, which is the most general species of decay, is a subject for annual repairs-Hibbert v. Cook, (1 S. & S. 552; Wily, 47 n.,) Bishop of Waterford's case. Then in what case does the provision for prospective repairs apply, if not here? The proportion of Dr. Griffin is fixed at £227 5s. 6d., and that of Mr. Stevenson at £593 8s. 11d.; but it is con tended the latter must pay all, although there are no words in the Act saying that Dr. Griffin shall le exempt from any liability for his twenty-four years. It is unjust that he should be, but the preamble of the Act is satisfied, as to "a more just pportionment," by the improver paying every year ter of ordinary, annual, and necessary repairs is to be effected by the incumbent. If he is in default in respect to that, he is responsible, and a commission may issue at least he is responsible to his successor for any dilapidations arising from his neglect. The next point regards permanent and substantial repairs. These are to be done by a charge on the benefice, founded on the proceedings indicated by the second section, and others that have been referred to; and it is perfectly plain that improvements or repairs of this kind, of a permanent nature, prima facie are to be made a charge, not on the individual who makes them, but on the benefice, so that every person shall bear his proportion of the burden. There is a third case in which the Act of Parlia ment points to the liability of the incumbent, and that is where, by his default, the permanent repairs may have become necessary, or where, by his default in not doing them in proper time, greater injury must have ensued than want of proper repairs itself might have caused to the building; or where, by his default in not obtaining a proper remedy against his predecessor, a loss has occurred. All these cases are pointed out, and would appear to be proper, just, consonant to the spirit and meaning of the Act of Parliament, and capable of satisfactory adjustment in every respect. It is sought to add to these the condition of affairs represented by this particular glebe-house-namely, a necessity for some perma nent repairs, not occasioned by any want of annual, proper, necessary repairs; not occasioned by any default in the incumbent in not making permanent improvements; not occasioned by any default of his in not seeking against his predecessor the value of any dilapidations; but by the natural, long continuous, progressive decay of a building erected 100 years, the roof requiring a permanent restoration at some future time, which the architects employed calculate to be something about ten or fifteen years. Was that to be thrown as a charge on the incumbent, which did not occur in his own time, which was not occasioned by his own default, which he could not be expected to have done at his own expense, but which he was entitled to have done, and charged on the benefice? It is taking too narrow a view of the purpose of the Act to hold that a case of that sort comes within it. It might be within the scope of the old law, but according to the new code, which provides for all cases, and points to all constructions, it appears to us that the law was not intended to embrace a case like that, but that it has a most just and comprehensive scope-namely, that every man should have the benefit of the permanent and substantial repairs of this kind, according to his term of enjoyment, and that he should contribute according to that term. Mr. Stevenson would have the benefit of this house, keeping it in proper, annual, and necessary repairs, for the remainder of the fifteen years; and when the time came for making the repairs, he would be entitled to have them made at the expense and charge of the parish. In the absence of any default on the part of the predecessor, we think the report in that respect must be reformed, and that the charge cannot fall on the appellant. That is the opinion we intend to give to the Lord Lieutenant, and it will Le for his Excellency to determine whether he concurs with us in that view. ROLLS COURT. had been set down for hearing in the Lord Chancellor's list; but the petitioner and respondent not being ready for hearing, a consent was entered into on the 7th November, 1853, signed by the solicitors of the parties, whereby it was consented that the petition should be struck out of the Lord Chancellor's list for Michaelmas Term, and that the hearing of the cause should stand over till Easter Term-the petitioner to be at liberty to amend the petition, and the respondent to file further affidavits, and that the consent should be made a rule of court; but it never was actually made a rule of court. On the 17th of May, 1854, the following consent was entered into: "By consent of the parties, petitioner and respondent, testified by their respective solicitors, signing hereof, It is hereby consented to and agreed upon that the petitioner may be at liberty to amend the cause petition in this matter as he may be advised, and that the respondent, J. Archbold, shall have one month from the filing of such amendments to answer the same, and make such further proofs as he may be advised, and that this cause be set down for hearing in the Lord Chancellor's list of causes for hearing next Trinity Term, and that this consent be received and made a rule or order of this honorable court. "E. N. BARRON, Solicitor for Petitioner. "J. O'BRIEN, Solicitor for Respondent." David Sherlock moved, pursuant to notice, that the respondent might now be declared entitled to his costs, as the petition stood dismissed, under the 27th General Order, it not having been set down for hearing, aud that it might be referred to the Taxing Master to tax the costs. J. A. Lawson, for the petitioner, submitted that the 27th General Order was not applicable, as the petition had actually been set down for hearing, and no party had appeared. His Honor made no rule on the motion, holding that the 27th General Order did not apply to the case, as the petition had been set down in the Chancellor's list, and afterwards struck out on account of no party appearing; but that under the 20th General Order the petition stood dismissed for want of the petitioner appearing, and that the [Reported by RICHard W. Gamble, Esq., Barrister-parties could not, by the consent, prevent the ope at-Law.] PORTER V. ARCHBOLD.-Jan. 1856. Cause petition-Dismissal-Consent-Costs. Where a cause petition is set down for hearing in the Chancellor's list, and allowed to be struck out by consent, it cannot be reinstated by consent. If no party appears when the petition is called on, it stands dismissed, under the 20th General Order, without costs to either party; and though the petitioner and respondent enter into a consent (to be made a rule of court) that such petition may be set down for hearing for a certain Term, this will not entitle the respondent, by reason of its not being afterwards set down, to his costs in the matter, as in case of a petition being dismissed under the 27th General Order, A CAUSE petition had been filed in this case, and ration of this rule, and that, as no party had appeared, no party was entitled to costs. E. N Barron, Solicitor for Petitioner. BOLTON . CARMICHAEL-Jan. 28, 1856. Staying action at law — Attachment-Amending order-Costs-12 & 13 Vic. c. 53. An order was made on a solicitor to lodge a list of the credits he admitted against his bill of costs; but through mistake, not limiting any time within which to lodge them. An attachment was issued against him for not complying with the order. An action at law was then brought against the party, petitioner, but not against his solicitor, for issuing the attachment; Held, that the - court had no jurisdiction to stay the proceedings at law, they not being against a solicitor or officer of the court; but that the original order for lodging the list of credits might be amended by inserting the time within which the list of credits should be lodged, reciting in the order that the omission was through mistake. liciously to injure, harrass, and oppress him, and claiming damages £500. The petitioner, on whom the plaint had been served, made an affidavit denying the allegation of malice in the most express terms, and stating he believed he was entitled to credits to the amount of £139 5s. out of the bill of costs. THIS matter came before his Honor, by motion on Hughes, Q.C., now moved for an order to stay notice for the sitting of the court, to stay proceed further proceedings in the action at law, and for ings in an action at law which had been brought the costs of the motion.-Advantage seems to have by the respondent, James Carmichael, a solicitor, been taken of an omission in the order of your against the petitioner, the Rev. L. H. Bolton, un-Lordship for the taxation of the costs, as it was der the following circumstances. On a petition omitted in making up the order to state that the for the taxation of costs, an order had been made list of credits was to be furnished "within the like by the Master of the Rolls, on the 6th July, 1855, period," that is, within the ten days; but the enwhereby it was ordered that the respondent, James dorsement on the order, that unless the costs and Carmichael, should, within ten days from service of credits were furnished within ten days, that the the order, furnish to the petitioner's solicitor all party would be liable to be attached, ought to be costs claimed by him against the petitioner, and it sufficient. In McKinnon v. Palmer, (7 Ir. Eq. was referred to the Taxing Master to tax the same, R. 496,) the Master of the Rolls held, that where and it was further ordered that the said respondent an action at law had been brought for irregularly should "furnish to the said petitioner on oath a issing an attachment, the court had jurisdiction to list of all credits to which the said petitioner was restrain the action. In that case the counsel did entitled against the said costs." This order was not deny the authority of the cases cited, nor the duly served on the 25th July, and again on the 7th power of the court to restrain its proceedings, if it August, and again on the 13th November, accom-thought fit to do so, and his Honor cites the words panied by the notice prescribed by the 104th Ge- of Lord Brougham in Aston v. Heron, (2 My. & neral Rule. On the 20th November petitioner's Kee. 390,) in which he said, "When an irregulasolicitor read a letter from the respondent, asking rity has been committed in executing the process further time for furnishing the costs; but he re- of the court, if the court has declared the execuplied, that unless he got special directions from his tion irregular, and discharged the party from cusclient, he would be obliged to proceed. Accord-tody, nothing can be more clear than that he has ingly, on the 21st November, an attachment was been illegally detained, and that he would have a 'issued against the respondent, returnable on the right to bring his action for the false imprisonment 11th of December, and same was lodged with the unless the court interfered to prevent such a prosheriff on the 22nd November. The respondent ceeding;" his Honor then says, "and after observ*then, on the 7th December, furnished his bill of ing that such interference was considered both by costs, but without giving any list of credits, as di- Lord Eldon and himself as a very strong jurisrected by the order. A notice was served with the diction,' he continues, For what, indeed, was it bill of costs, cautioning petitioner against proceed- but saying, a subject has been falsely imprisoned, ing on the attachment, and offering to pay the costs and yet he shall have no remedy before a jury, beof it; but he, in reply, served a notice on the 11th cause the injury done was committed in executing December, stating that he could not withdraw the the process of the Court of Chancery.' In a case attachment without the order of the court, or until of a trivial and light nature, when no real or sethe order was complied with by furnishing the list rious injury resulted from an irregular execution of credits. The attachment was then renewed on of an order within the jurisdiction of the court to the 14th December, but was not afterwards lodged make, the court would exercise that strong juriswith the sheriff. The petitioner's solicitor after- diction, and take the case in its own hands." wards informed respondent, that if he thought he was [Master of the Rolls.-The difficulty that arises not bound to furnish the list of credits, he might ap-here is, that there is no case where proceedings ply to the court, and he would attend on such motion; but no such application having been made, the costs were lodged for taxation on the 29th December, and on the 31st December the list of credits was furnished, accompanied by a letter, saying respondent did not think himself bound by the order to lodge a list of credits, or that any attachment could issue against him for not doing so. Petitioner heard nothing further from respondent J. A. Lawson contra.-We have not had time to till, on the 23rd January, inst., a summons and answer the affidavits saying there was no malice; plaint was served on him at the suit of the respon- but we think it was totally unnecessary to do so, dent, complaining that he had wilfully and mali- because there never was a case where the ground ciously caused an attachment to be issued against of the action was malice, that the court has interhim for not furnishing said costs, and had same de- fered to stay the proceedings-Frowd v. Laulivered to the sheriff, with the intent wrongfully torence, (1 Jc. & Walker, 645.) This is a singular procure him to be arrested, and indirectly and ma-application because the respondent does not say can be stayed unless the act is that of an officer of the court. It has been decided in the Exchequer that where the act complained of is not done by an officer of the court, the court cannot stay the proceedings.] I think this case may be brought within thase cases, because the petitioner says that he left the entire matter to his solicitor, and that the attachment was issued by him. |