Abridgment of Ecclesiastical Laws, Treatise · Chapter 15
CHAP. XV.
Of Dilapidations.
1. What Dilapidation ſignifies; how many waies it may happen; the Remedies in Law in caſe thereof; and to what Court the cognizance thereof properly belongs.
2. Proviſion made by the Canon for prevention of Dilapidations.
3. Dilapidation twofold in conſtruction of Law; An Expoſition of the ſaid Canon; the Biſhops power of Sequeſtration in caſe of Dilapidation.
4. By whom the Body of the Church, and by whom the Chancel ſhall be kept in repair; How the charge of Repair in the caſe of Dilapidations ſhall be apportioned; and what the Law in ſuch caſes, where one Pariſh is divided into Two.
5. Dilapidation of Eccleſiaſtical Edifices, a good cauſe in Law of Deprivation.
6. The Injunction of King Ed. 6. for prevention of Dilapidations
7. Leaſes made by a Parſon, void by Statute for Non-reſidence, to prevent Dilapidations.
8. The waſting the Woods of a Biſhoprick, a Dilapidation in Law; ſuch Woods being the Dower of the Church.
9. A Vicar felling down Timber Trees and Wood in the Churchyard, is a Dilapidation, and good cauſe of Deprivation.
(1.) DIlapidation is the Incumbents ſuffering the Chancel or other the Edifices of his Eccleſiaſtical Living to go to ruine or decay, neglecting to repair the ſame; It extends alſo to his committing or ſuffering to be committed any wilful Waſte in or upon the Glebe-woods or other Inheritance of his Church. Againſt which proviſion is made by the Provincial Conſtitutions, whereof Sir Simon Degge takes notice in his Parſons Counſellor aParſ. Counſ par. 1. cap. 8.; though in truth the Canon there provides rather as to ſatisfaction for, than prevention of ſuch Dilapidations. Lindw. c. ſi Rector alicujus Eccleſiae, & Gloſſ. ibid. But the Canon Law is expreſs and full in all reſpects relating to this implicit Sacriledge, nor doth the Cuſtome of England or the Common Law leave the Church without ſufficient Remedy in this caſe, albeit it poſtpones the ſatiſfaction of dammages for Dilapidations to the payment of Debts, as the Canon Law prefers it before the payment of Legacies. Sir Simon Degge in the forementioned place makes mention of the Inhibition out of Chancery to the Biſhop of Durham by order of Parliament in Edward the Firſt's time, for waſting the Woods belonging to that BiſhoprickbCo. 11. 49. 2.. Alſo of the Archbiſhop of Dublin's being Fined three hundred Marks for disforreſting a Forreſt belonging to his ArchbiſhoprickcRot. Pa. 14 H. 3. in. 8.. Likewiſe, that by ſeveral Books of the Common Law, a Biſhop, &c. waſting the Lands, Woods, or Houſes of his Church, may be depoſed or deprived by his Superiour d20 H. 6. 46. a. 2 H. 4. 3. b. Co. 11. 94. b. 29 E. 3. 16. a. 9 E. 4. 34. a.. And in caſe any Parſon, Vicar, &c. ſhall make any Conveyance of his Goods, to defraud his Succeſſor of his Remedy in caſe of Dilapidations; in that caſe it is provided by the Stat. of 13 Eliz. c. 2. that the Spiritual Court may in like manner proceed againſt the Grantee, as otherwiſe it might have done againſt the deceaſed Parſon's Executors or AdminiſtratorseSt. 13 El. c. 2.: and all ſuch Grants to defraud any perſon of their juſt actions, were made void by a later StatutefSt. 13 El. c. 5.. It is agreed, That the cognizance of Dilapidations properly and naturally belongs to the Eccleſiaſtical Juriſdiction, and no Prohibition to lie in the caſe; or if ſuch happen to be granted, then the ſame to be ſuperſeded by a ConſultationgF. N. B. 51. f.: yet it ſeems Actions upon the Caſe grounded upon the cuſtome of England, have been brought in this caſe at Common Law, and Dammages recovered hVid. Parſ. Counſ par. 1. cap. 8.. It is alſo enacted by the Statute of 14 Eliz. That that Moneys recovered upon dammages for Dilapidations, ſhall be expended in and upon the Houſes, &c. dilapidatediSt. 14 El. c. 11..
(2.) Cardinal Othobon in his Canon [De Domibus Eccleſiarum reſiciendis] hath conſtituted and ordained, That all ſuch Eccleſiaſtical perſons as are Beneficed, take ſpecial care, that from time to time they ſufficiently repair the Dwelling-houſes and other Edifices belonging to their Benefices as oft as need ſhall ſo require; unto which duty they are earneſtly and frequently to be exhorted and admoniſh'd, as well by their Dioceſans as by the Archdeacons. And if they ſhall for the ſpace of two months next after ſuch Monition neglect the ſame, the Biſhop of the Dioceſs may from thenceforth cauſe it to be effectually done at the Parſon's charge out of the profits and fruits of his Church and Benefice, taking only ſo much and no more as may ſuffice for ſuch Repairs; And the Chancels of Churches to be in like manner repair'd by thoſe who are obliged thereto. And as to Archbiſhops, Biſhops, and other inferiour Prelates, they are by the ſaid Canon enjoyn'd to keep their Houſes and Edifices in good and ſufficient Repair ſub divini Judicii atteſtatione. Conſtit. Othobon. de dom. Eccl. re…i…. Sub divini Judicii atteſtatione (h. e.) damnationis aeternae in extremo Cal…ulo. glo. in ver. Sub divini. Conſt. Othobon. de reſident. Archiepiſc.
(3.) By the Gloſs on that Canon it is inferr'd, That a Parſon may be guilty of Dilapidations, or of a Neglect in that kind two waies, viz. either by not keeping the Edifices in good repair, or by not repairing them being gone to decay. That Canon chiefly refers to the Manſion-houſes of all Benefices Eccleſiaſtical, and that not only of all Parſonages and Rectories, but alſo of all Biſhopricks, and of all Curates and Prebends, and of all others having Eccleſiaſtical Livings; but not ſpecially (by the words of this Canon) unto their Farm-houſes, though they alſo are by the Canon Law provided for in caſe of Dilapidations. And ſuch as neglect the Reparations aforeſaid, may be accuſed and convicted thereof before the Dioceſan, who hath power to ſequeſter the Fruits of ſuch Benefice for the Reparations aforeſaid, Gloſſ. in ver. ceſſaverit. in dict. Can. ſuch Fruits thereof being in conſtruction of Law, as it were tacitly hypothecated by a certain kind of Priviledge for ſuch Indemnity; and for that reaſon the Biſhop in ſome caſes may for that end ſequeſter the ſame.
(4.) And whereas in the aboveſaid Canon it is ſaid, That Chancels ſhall be kept in repair by ſuch as are thereunto obliged, it is to be underſtood, that that is ſpoken by way of alluſion to the common Cuſtome in England, whereby the Body of the Church is uſually repaired by the Pariſhioners, and Chancels by the Rectors, who notwithſtanding ought to be at the care, though not at the coſts, of the other alſo; he being annually accountable to the Biſhop for the ſame, if the Biſhop ſo pleaſe; for which reaſon the Rector hath power to audit the Accounts of the coſts and charges about the ſame, as alſo what ſhall be given or bequeathed by way of Legacy for that end and purpoſe. And where this cuſtome prevails, That the Pariſhioners ſhall repair the Body of the Church, it is not to be underſtood, that this is incumbent on them as a Real, but as a Perſonal duty or burden; yet every Pariſhioner proportionably to that quantity of Land which he holds within the Pariſh, and number of Cattel he feeds on the ſame: Gloſſ. ibid. in ver. ad hoc tenentur. And in caſe one Pariſh be by legal Authority divided into Two, in that caſe, if ſuch diviſion were made by and with the conſent of theſe Four, viz. the Biſhop, the Patron, the Parſon, and the Pariſhioners, then the more Ancient Church ſhall not contribute to the Reparations of the New, for that now they are two dictinct Pariſhes. Gloſſ. ibid.
(5.)Co. Inſt. pa. 3. cap. 97. 29 E. 3. 16. 2 H. 4. f. 3. 9 E. 4. 34. Sir Ed. Coke in the third part of his Inſtitutes, having ſpoken of erecting of Houſes and Building, &c. tells us what he finds in the Books of the Common Law and Records, touching Dilapidations and decay of Buildings, and having Margined as here in this Margent, ſays, That Dilapidation of Eccleſiaſtical Palaces, Houſes, and Buildings is a good cauſe of Deprivation.
(6.) By the Injunctions of King Ed. 6. An. 1547. to all his Clergy, it is required, That the Proprietors, Parſons, Vicars, and Clarks, having Churches, Chappels, or Manſions, ſhall yearly beſtow upon the ſame Manſions or Chancels of their Churches being in decay, the fifth part of their Benefices, till they be fully repaired; and the ſame ſo repaired, ſhall alwaies keep and maintain in good eſtatekBiſhop Sparrow's Collect of Articles, &c. pa. 5.. Conſonant to which is the Thirteenth Article of Queen Elizabeths Injunctions, given to all the Clergy, An. 1559.
(7.) The Caſe was, where the Parſon made a Leaſe to the Plaintiff for 21 years after the Statute of 13 Eliz. of Lands uſually Lett, rendring the ancient Rent, the Patron and Ordinary confirmed it,Hill. 31 Eliz. B. R. Mott & Hal… 's Caſe. Cro. par. 1. the Leſſee lett part of the term to the Defendant, the Parſon died, the Succeſſor entered and leaſed to the Defendant; againſt whom the Leſſee brought Debt upon the former Leaſe, who pleaded the Statute of 13 Eliz. which made all Leaſes void, where the Parſon is not reſident, or abſent for 80 daies: It was Adjudged, That the Leaſe was void by the death of the Incumbent; for the Juſtices ſaid, The Statute doth provide againſt Dilapidations, and for maintenance of Hoſpitality; and therefore provided the Leaſes ſhall be void not only for Non-reſidence, but by death or reſignation; for otherwiſe Dilapidations ſhould be in the time of the Succeſſor, and he cannot maintain Hoſpitality.
(8.) The waſting of the Woods belonging to a Biſhoprick, is in the Law underſtood as a Dilapidation, as was formerly hinted. Note, By Coke Chief Juſtice, a Biſhop is only to fell Timber for Building,What Timber a Biſhop may fell, and for what purpoſes. for Fuel, and for his other neceſſary occaſions, and there is no Biſhoprick but the ſame is on the Foundation of the King; the Woods of the Biſhoprick are called the Dower of the Church, and theſe are alwaies carefully to be preſerved; and if he fell and deſtroy this, upon a motion thereof made to us (ſays the Lord Coke) we will grant a Prohibition: And to this purpoſe there was a great Cauſe which concerned the Biſhop of Dureſm, who had divers Cole-Mines, and would have cut down his Timber-Trees for the maintenance and upholding of his Works; and upon motion in Parliament concerning this, for the King, Order was there made, that the Judges ſhould grant a Prohibition for the King; and we will here (ſays he) revive this again, for there a Prohibition was ſo granted. And ſo upon the like motion made unto us in the like caſe, we will alſo for the King grant a Prohibition by the Statute of 35 E. 1. If a Biſhop cut down Timber-Tres for any cauſe, unleſs it be for neceſſary Reparations (as if he ſell the ſame unto a Stranger) we will grant a Prohibition: And to this purpoſe I have ſeen (ſaid he) a good Record in 25 E. 1. where complaint was made in Parliament of the Biſhop of Dureſm (as before) for cutting of Timber-Trees for his Cole-Mines, and there agreed that in ſuch a caſe a Prohibition did lie;Mich. 12 Jac. B. R. Chapman verſ. Jane Barnaby. Bulſtr. Rep. and upon motion made a Prohibition was then granted; and the Reaſon then given, becauſe that this Timber was the Dower of the Church; and ſo it ſhall be alſo in the caſe of a Dean and Chapter; in which caſes, upon this ground we will grant (as he ſaid) Prohibitions; and the whole Court agreed with him herein. Alſo in Sakar's caſe, againſt whom Judgment being given for Simony, yet he being by aſſent of parties to continue in the Vicarage for a certain time, this time being now paſt, and he ſtill continuing in poſſeſſion, and committing of great Waſte, by pulling down the Glaſs-windows, and pulling up of Planks, the Court granted a Prohibition, and ſaid, That this is the Dower of the Church,Mich. 13 Jac. B. R. The King againſt Zakar. Bulſtr. par. 3. and we will here prohibit them, if they fell and waſte the Timber of the Church, or if they pull down the houſes: And Prohibition to prevent Dilapidations, and to ſtay the doing of any Waſte, was in that caſe awarded accordingly.
(9.) In a Prohibition, the Caſe was this: A Vicar lops and cuts down Trees growing in the Church-yard; the Churchwardens hinder him in the carriage of the ſame away,Mich. 13 Jac. B. R. Knowll and All. verſ. Harvey. Bulſtr. par. 3. and they being in Trial of this Suit: The Churchwardens by their Counſel, moved the Court for a Prohibition to the Vicar, to ſtay him from felling any more. Coke Chief Juſtice, This is a good cauſe of Deprivation, if he fell down Timber-Trees and Wood, this is a Dilapidation; and by the Reſolution in Parliament, a Prohibition by the Law ſhall be granted, if a Biſhop fells down Wood and Timber-Trees. The whole Court agreed clearly in this, to grant here a Prohibition to the Vicar to inhibit him not to make ſpoil of the Timber, this being (as it is called in Parliament) the Endowment of the Church. Coke, we will alſo grant a Prohibition, to reſtrain Biſhops from felling the Wood and Timber-Trees of their Churches. And ſo in this principal Caſe, by the Rule of the Court a Prohibition was granted.