against J. S., rector of D., the defendant pleading that he was demurrant and conversant at B. in another county, the plea was overruled; for since the defendant denied not that he was rector of the church of D., he shall be deemed by law to be demurrant and conversant there for the cure of souls (c). The acts 21 Hen. 8, c. 13 (d), 25 Hen. 8, c. 16, 28 Hen. 8, Privileged c. 13, and 57 Geo. 3, c. 99, contained provisions for exempting persons from residence the chaplains of certain distinguished persons. exempted. formerly These acts, however, have all now been repealed. by non Peccham. "We do decree, that rectors who do not make Hospitality personal residence in their churches, and who have no vicars, to be kept shall exhibit the grace of hospitality by their stewards according residents. to the ability of the church, so that at least the extreme necessity of the poor parishioners be relieved; and they who come there, and in their passage preach the word of God, may receive necessary sustenance, that the churches be not justly forsaken of the preachers through the violence of want, for the workman is worthy of his meat, and no man is obliged to warfare at his own cost" (e). before 1 & 2 It may be well to mention some of the excuses for non- Excuses for residence which were holden to exempt the party alleging them non-residence from the penalties imposed by the 10th section of 57 Geo. 3, Vict. c. 106. c. 99:-Total want of health, such that the incumbent could not reside but at the risk of life, was holden a sufficient excuse for an absence of twenty years (f), but neither the want of a parsonage-house excused the incumbent's residing out of the parish (g), nor a sequestration upon a fieri facias of a benefice with cure (h). The non-residence on one benefice under a licence from the diocesan thereof was holden not equivalent to actual residence thereon, so as to excuse the incumbent's nonresidence on another benefice: therefore a bishop's retrospective certificate that he would have granted a licence for non-residence because the incumbent was performing the duties of another (c) 2 Inst. p. 625; and see the last note. (d) Acton's case, 4 Co. p. 117. It may be useful to preserve the authorities, both judicial and from text writers, cited in the edition of Dr. Burn (published before the enactment of 57 Geo. 3, c. 99), upon the legal construction of this statute of Henry the Eighth. They were as follows: as to the meaning of "dignity," Gibs. p. 886; Boughton v. Gousley, Cro. Eliz. p. 663 of " benefice," Jenkinson v. Thomas, 4 T. R. p. 665: of "personal residence," Sands v. Piner, Cro. Eliz. p. 898; Gibs. p. 886; 13 Eliz. c. 20; Canning v. Newman, 2 Brownl. p. 54; Lord Mansfield's decision in Low v. (e) Lind. pp. 132, 133. (f) Scammell v. Willett, 3 Esp. p. 29, per Buller, J. (g) Wilkinson v. Allott, 2 Cowp. p. 429. (h) Doe d. Rogers v. Mears, 1 Cowp. p. 129; Lofft, p. 602. Licence for non-residence before 1 & 2 Vict. c. 106. Canon 47. benefice, within two miles of which he lived by licence from another diocesan, not being allowed by the archbishop, was void, but good with the archbishop's certificate, though granted after 1st July, 1814 (i). If a clergyman who had two livings resided within one of the parishes wherein there was no house of residence, it was a sufficient residence there to exempt him without licence from the bishop from penalties for not residing on the other benefice (). A private statute annexed the rectory of H. to the deanery of Windsor, and recited that the necessary residence on the deanery, and the dean's attendance on her Majesty as registrar of the Order of the Garter, would oblige him to be often absent from H., and the statute compelled him to appoint a stipendiary curate constantly resident at H.; and it appeared that this, without more, conferred an excuse for nonresidence at H., although in the subsequent act of 43 Geo. 3, c. 84, imposing residence on all benefices not therein excepted, this is not enumerated as a ground of exemption or of licence (/). It seems to have been doubtful whether a clergyman was wilfully absent from his benefice during the time he was in custody for debt, under an arrest made while he was residing out of his parish (m). Where a licence for non-residence had been obtained previously to the 14th of July, 1814, pursuant to 54 Geo. 3, c. 54, but the allowance by the archbishop required by 43 Geo. 3, c. 84, s. 20, had not been obtained till after that period, the licence, when ratified, was valid from the time when it was originally granted (). A licence of non-residence on a benefice within an archbishop's peculiar locally situated in another diocese, need not be registered in the registry of the diocese, but ought to be registered in the registry of the archbishop (o). A licence to an incumbent to absent himself from a living might be revoked under peculiar circumstances (p). Canon 47 of 1603, requiring every beneficed man licensed not Non-resident to reside upon his benefice, to cause his cure to be supplied by a curate, has already been given (q). to have curate. Conditions under old law. By the old faculty of dispensation a pluralist was required "in that benefice, from which he shall happen to be most absent, to preach thirteen sermons every year, and to exercise hospitality for two months yearly; and for that time, according to the fruits and profits thereof, as much as in him lieth to support and relieve the needy inhabitants of that parish, especially the poor and needy" (r). The offence of non-residence is now, under 1 & 2 Vict. c. 106, Under 1 & 2 restrained in three ways:-1. By monition and sequestration of Vict. c. 106. the benefice, to be treated of hereafter in Chapter VII. of this Part of this Work. 2. By the infliction of penalties. 3. By the compulsory appointment of a curate. non-residence benefice. As to the infliction of penalties, sect. 32 of the Act provides, Penalties for "That every spiritual person holding any benefice shall keep on incumbent residence on his benefice, and in the house of residence (if any) not having a belonging thereto; and if any such person shall, without any such licence or licence or exemption as is in this act allowed for that exemption, purpose, or unless he be unless he shall be resident at some other benefice of which he may resident on be possessed, absent himself from such benefice, or from such house another of residence, if any, for any period exceeding the space of three months together, or to be accounted at several times in any one year, he shall, when such absence shall exceed three months and not exceed six months, forfeit one-third part of the annual value of the benefice from which he shall so absent himself; and when such absence shall exceed six months and not exceed eight months, one-half part of such annual value; and when such absence shall exceed eight months, two-third parts of such annual value; and when such absence shall have been for the whole of the year, three-fourth parts of such annual value." This statute, however, allows non-residence in certain specified instances, as follows: house not Sect. 33. "It shall be lawful for any bishop, upon application Licence in in writing by any spiritual person holding any benefice within certain cases his diocese whereon there shall be no house or no fit house of to reside in residence, by licence under his hand and seal, to be registered in belonging to the registry of the diocese, which the registrar is hereby required benefice. to do, to permit such person to reside in some fit and convenient house, although not belonging to such benefice, such house to be particularly described and specified in such licence, and for a certain time to be therein also specified, not exceeding the period by this act limited, and from time to time, as such bishop may think fit, to renew such licence; and every such house shall be a legal house of residence for such specified time to all intents and purposes: Provided always, that no such licence shall be granted to such spiritual person to reside in any house unless it be within three miles of the church or chapel of such benefice; nor in case such church or chapel be in any city, or market or borough town, unless such house be within two miles of such church or chapel." actions at common law as to nonresidence are:-Whitehead v. Wynn, 5 M. & S. p. 427; 2 Chit. p. 420; Beran v. Williams, 3 T. R. p. 635; Still v. Coleridge, Forrest, p. 117; Cathcart v. Hardy (in error), 2 M. & S. p. 534; but compare this with Hardy v. Cathcart, 5 Taun. p. 2. For the practice of the common law courts on this action, see Wright |