done being widows; and that every such chaplain may have like liberty of non-residence, as they might have had if their said ladies and mistresses had kept themselves widows. § 33.

It shall be lawful to the king to give licence to every of his own [305] chaplains for non-residence] In the former part of the act it was expressed, that the several chaplains therein mentioned might be dispensed withal for their non-residence, during such time only as they should be and remain in the household of those who retained them but this clause seemeth to contain one exception [306] to that limitation, with regard to the chaplains of the king; who may (as it seemeth) by this clause give licence to any of his own chaplains for non-residence generally, and not only during the time of their attendance in the household: And this proviso seemeth only to be a saving of the king's right which he had before, as is set forth in the answer to one of the articuli cleri before mentioned, and in the comment thereupon. [And see the saving in 57 G. 3. c. 99. § 80.]

Shall take any husbands under the degree of a baron] If any of these retaineth chaplains, according to this statute, and afterwards taketh to husband one of the nobility (as it was in Acton's case, where the baroness Mounteagle, after such retainer, took to husband the lord Compton); the retainer remaineth in force notwithstanding such marriage, and the chaplains, so long as they tend upon her, shall not be adjudged non-residents within this act. 4 Co. 117. (See Pluralitp.) [The two following acts are not expressly repealed by 57 Geo. 3. c. 99. § 1.]

By the 25 H. 8. c. 16. Whereas by the statute of the 21 H. 8. c. 13. (§ 28. now Repealed by 57 G. 3. c. 99. § 1.) it was ordained, that certain honourable persons, as well spiritual as temporal, shall have chaplains beneficed with cure to serve them in their honourable houses, which chaplains shall not incur the danger of any penalty or forfeiture made or declared in the same parliament, for non-residence upon their said benefices; in which act no provision was made for any of the king's judges of his high court, commonly called the king's bench and the common pleas, except only for the chief judge of the king's bench, nor for the chancellor, nor the chief baron of the king's exchequer, nor for any other inferior persons being of the king's most honourable council: It is therefore enacted, That as well every judge of the said high courts, and the chancellor and chief baron of the exchequer, the king's general attorney and general solicitor, for the time that shall be, shall and may retain and have in his house or attendant to his person, one chaplain having one benefice with cure of souls, which may be absent from his said benefice, and not resident upon the same; the said statute made in the said oneand-twentieth year, or any other statute, act, or ordinance to the contrary notwithstanding.

By the 33 H. 8. c. 28. Whereas by the act of the 21 H. 8. [ 307 ]

c. 13. [§ 28. now Repealed by 57 G. 3. c. 99. § 1.] it was ordained, that certain honourable persons, and other of the king's counsellors and officers, as well spiritual as temporal, should and might have chaplains beneficed with cure, to serve and attend upon them in their houses, which chaplains shall not incur the danger of any penalty or forfeiture made or declared [308] in the said act for non-residence upon their said benefices; in which act no provision is made for any of the head officers of the king's courts of the duchy of Lancaster, the courts of augmentations of the revenues of the crown, the first fruits and tenths, the master of his majesty's wards and liveries, the general surveyors of his lands, and other his majesty's courts: It is therefore enacted, That the chancellor of the said court of the duchy of Lancaster, the chancellor of the court of augmentations, the chancellor of the court of first fruits and tenths, the master of his majesty's wards and liveries, and every of the king's general surveyors of his lands, the treasurer of his chamber, and the groom of the stole, and every of them, shall and may retain in his house, or attendant unto his person, one chaplain having one benefice with cure of souls, which may be absent from the said benefice, and non-resident upon the same; the said statute made in the said twenty-first year of his majesty's reign, or any other statute, act, or ordinance to the contrary notwithstanding. § 1.

Provided always, That every of the said chaplains so being beneficed as aforesaid, and dwelling with any the officers aforenamed, shall repair twice a year at the least to his said benefice and cure, and there abide for eight days at every such time at the least, to visit and instruct his said cure; on pain of 40s. for every time so failing, half to the king, and half to him that will sue for the same in any of the king's courts of record, in which suit no essoin, protection, or wager of law shall be allowed. § 2.

By 57 Geo. 3. c. 99. § 1. so much of the 21 Hen. 8. c. 13. (8), 28 H. 8. c. 13., 13 El. c. 20., 14 El. c. 11., 18 El. c. 11., 43 El. c. 9., 3 C. 1. c. 4., as relates to spiritual persons holding of farms, and to leases of benefices and livings, and to buying and selling, and to residence of spiritual persons on their benefices; and so much of 12 Ann. st. 2. c. 12., and of 36 Geo. 3. c. 83., as relates to the maintenance of curates within the church of England, and making provision for appointing stipends for such curates; and the whole of 43 Geo. 3. c. 84., 43 Geo. 3. c. 109., and 53 Geo. 3. c. 149., are from and after the passing of this act, (viz. on 10th July, 1817) respectively repealed.

By § 72., in all cases in which the term "benefice" is used in this act, it shall mean "benefice with cure," and shall comprehend

(8) The penalty of 10l. imposed for non-residence, by 21 H. 8. c. 13. had been previously repealed by § 12. of 43 G. 3. c. 84. ; which latter act was itself repealed by the above section.

therein all donatives, perpetual curacies, and parochial chapelries. Thus, by § 81. no parsonage having a vicar endowed, (see S. P. 21 H. 8. c. 13. § 31. ante, tit. Plurality,) or a perpetual curate and without cure of souls, shall be deemed a benefice within this act.

From and after 10th July 1817, every spiritual person (9) holding any benefice, who shall without any licence or exemption, as by this act allowed, wilfully absent himself therefrom (1) for three months together, or to be accounted at several times in one year (2), and abide elsewhere than at some other benefice, donative, perpetual curacy, or parochial chapelry of which he may be possessed, shall, when his absence shall exceed such period, and not six months, forfeit one third of the annual value (3), deducting thereout all outgoings except curates' salary of the benefice, &c., from which he shall absent himself; and when such absence shall exceed six months, but not eight, he shall forfeit one-half of such value; and when it shall exceed eight months, two-thirds; and when the whole year, three-fourths thereof; to be recovered in his majesty's courts of record at Westminster or of Great Sessions in Wales (4), and no essoin, &c. allowed. The whole penalty shall

(9) Evidence that the defendant did several acts as parson, such as receiving tithes, &c. is sufficient without proving his admission, institution, and induction. Bevan v. Williams, 6 T. R. 535. n.

(1) The statute 21 H. 8. c. 13. did not extend to a spiritual person not wilfully absent: As, e. g. if there were no parsonage-house, (Butler v. Goodale, 6 Rep. 21. b. Čro. El. 590. Mo. 540. S. C.), or if he be imprisoned without covin, or was removed by advice of physicians, without fraud, for recovery of his health. (S. C. see Gibs. 887. 2 Bulst. 18. acc.) But sequestration of benefice with cure is no excuse for nonresidence (Doe v. Mears, 1 Cowp. 129. Lofft. 602.); and an information without the word "wilfully" is therefore bad. Collins v. Vaughan,

Cro. El. 100.

Α

(2) In Cathcart v. Hardy, in error, K. B. 2 M. & S. Rep. 534. similar wording of the 43. G. 3. c. 84. now repealed, was held to mean year "from the time when the action is commenced;" but by § 35. of this act a different regulation is introduced. See infra, 308n. As to suing for penalty, see Com.Dig. tit. Pleader, (2 S. 23.); and as to time of absence not covered by licence, but not amounting to three months, see note to § 45. As to several counts, see Fletcher v. Dickenson, 2 Bla. Rep. 906.

66

(3) The words, "annual value," in 43 G. 3. c. 84. now repealed by § 1. of the above act, were held to mean, average annual value. Cathcart, clerk, v. Hardy, in error, K. B. 2 M. & S. 534.

(4) No information on 21 H. 8. c. 13. lay at the assizes, Garland v. Burton, Stra. Rep. 1103. Andr. 291.; for 21 Jac. 1. c. 17. was never intended to give a new jurisdiction to the assizes, where they had it not before. So in Leigh v. Kent, 3 T. R. 362. B. R. held, after verdict, that an affidavit that the offence was committed in the county where the action was brought, and within a year before bringing it, according to 21 J. 1. c. 4. was not necessary in an action on 21 H. 8.

go to the person who shall inform and sue for the same, with such costs of suit as are allowed according to the practice of the court where the action is brought. § 5. (5)

Every spiritual person having any benefice, and no house of residence thereon, and who has resided nine months of the year within the limits of his benefice, or of the city, town, place or parish in which his benefice is situate, (provided such residence be within two miles from the church or chapel of his benefice,) shall not be liable to any penalties for non-residence, nor obliged to take out any licence in respect thereof, but the same shall be deemed a legal residence, and in all returns made by bishops, persons so residing shall be returned as resident. § 6.

Houses purchased by governors of queen Anne's bounty, though not situate within the parishes for which they are purchased, but approved by the bishop by writing under his hand and seal, and duly registered in the registry of the diocese, shall be deemed houses of residence appertaining to such benefices. 6 7.

In cases of rectories having vicarages endowed (see § 81.), the residence of the vicar in the rectory-house shall be deemed a legal residence, provided the vicarage-house be kept in proper repair to satisfaction of the bishop. § 8. Such rectories having vicarages endowed without cure, are not within this act. §81.

The bishop in every case where there is not a house of residence belonging to any benefice within the diocese, may allow any fit house within or (if so contiguous as to be sufficiently convenient) without the limits of the benefice and belonging thereto, to be the house of residence thereof; and such allowance and adjudication in writing under hand and seal of the bishop shall be registered in the registry of the diocese, and such house shall be thenceforth deemed the house of residence for time being to all intents and purposes. §9.

By 10. No spiritual person being chancellor, vice chancellor, or commissary of either university of Oxford or Cambridge, or being warden or other head of any college within such universities, or holding any professorship or public readership within such universities, being actually resident within the precincts of such universities, or actually residing and reading lectures therein; no scholar under thirty years of age abiding for study without c. 13.; however, the offence must be laid in the proper county. Bull. N. P. 196.

(5) This (says Bishop Gibson, in his comment on the penalty of 107. imposed for a like offence by 21 H. 8. c. 13.) is a coercion on incumbents which may be used by any person or persons whatsoever, and does not supersede or affect the right that the ordinary has, by the laws of the church, to punish non-residence by ecclesiastical censures; which, in case of obstinacy on the part of the incumbent, may be carried to deprivation. Gibs. 887.

fraud at either university; no chaplain of the king or queen, or their children, brethren, or sisters, during so long as he shall actually attend in discharge of his duty as such chaplain in the household to which he belongs; no chaplain of any archbishop or bishop, or temporal lord of parliament, or other person authorized by law to appoint chaplains (see 21 H. 8. c. 13. § 14. &c. tit. Plurality, for so long as such chaplain, &c. shall abide and dwell, and daily attend in actual performance of his duty as such in the household to which he so belongs (6); and no chaplain to the house of commons, clerk, or deputy clerk of his majesty's closet, or clerk or deputy clerk of the closet of the heir apparent, or chaplain general of his majesty's forces by sea or land, or chaplain of his majesty's dock yards, while actually attending and performing the duties of

[Nota. This note was inserted in the former editions of Burn as applying to the then existing statutes of residence: and is here retained as elucidating the present enactments on this subject. Ed.] (6) No chaplain of any archbishop or bishop, or temporal lords of parliament The service of the bishop is allowed by the canon law to be a sufficient licence for non-residence: For the necessary care and business of a diocese do require, that the bishop should have the assistance of ore or more clergymen. And since it is much easier to find a proper curate to serve a parish, than a proper person to advise and assist the bishop in the general care of the diocese; the law considers the person who abides with the bishop for these purposes as more usefully employed, than if he were confined to the care of one parish only. Bishop Sherlock's charge in the year 1759, p. 9. And the statute hath extended this exemption to other cases not expressly mentioned in the canon law; as to the chaplains of the nobility and great officers of the crown; though cases of this kind had usually been dispensed with before the act : which dispensations were founded upon the general power reserved to the bishop by the canon law, to dispense where there appeared to him to be a just and reasonable cause. And since the virtue and example of great and potent families must necessarily have a great influence upon the manners and religion of any country; it was thought reasonable to dispense with the personal attendance of an incumbent in his parish whilst he was employed in performing the offices of his function in such families. Id. p. 9, 10.

During the time that they shall so abide and dwell without fraud or covin, in any of the said honourable household] The statute considers the service of the chaplain in the household of his lord, as the only ground of the exemption; and it cannot be doubted (Dr. Sherlock says) but that service is only meant as is proper and peculiar to the office of such chaplain. And therefore a mere retainer (he says) of a clergyman to be chaplain to a nobleman, unless he actually abides and dwells in the household, is no title to the exemption of the statute; and if one retained and titled chaplain abides in the household to do any other service, and not the service of a chaplain, it is not such an abiding as the statute intends, but is fraudulent. Gibs. p. 10, 11.