BEN 



222 



BEN 



c. 11, bonds and covenants, and by stat. 43 Elii. e. 9, j 

 nu-nis entered into or suffered in fraud of the slat. 13 Eliz. 

 c. 20, are made \ 



The 13 Eliz. c. 20, also renders void all charge* upon eccle- 

 siastical benefloes by way of pension or otherwise. This last 

 provision has been held to extend to mortgages and annui- 

 ties, even if made only for the life or incumbency of the 

 mortgager. But the strictness of the laws prohibiting all 

 alienations by or in favour of ecclesiastical persons, has in 

 in xlcrn times been somewhat relaxed by the legislature for 

 purposes of public convenience. Thus the General Inclosure 

 Act, 41 Geo. III. o. 109, and the Land-tax Redemption 

 Act (-12 Geo. III. c. 118, amended by 45 Geo. III. c. 77,50 

 Geo. III. c. 58, 53 Geo. III. c. 193, 54 Geo. HI. c. 17, and 

 57 Geo. III. c. 100) confer ample powers of purchase and 

 alienation for such purposes. 



Other acts, as 17 Geo. III. o. 53 (amended by 21 Geo. 



III. c. 66, and 6 Geo. IV. c. 89), empower ecclesiastical in- 

 cumbents, with consent of patron and ordinary, to raise 

 money by sale or mortgage of the profits of the benefice, li >r 

 a term, for the purpose of building and repairing parsonage 

 houses ; and the governors of Queen Anne's Bounty are 

 permitted to advance money for the same object. (See 

 also 43 Geo. III. o. 108, and 51 Geo. III. e. 116.) 



Again, the stat. 55 Geo. III. r. 147 (amended by 1 Geo. 



IV. c. 6, 6 Geo. IV. c. 8, and 7 Geo. IV. c. 6C) empowers 

 incumbents, with consent of patron and ordinary, and ac- 

 cording to tho forms prescribed by the act, to exchange 

 their parsonage houses and glebe lands, and to purchase and 

 annex to their beneflcc other parsonage houses and glebe 

 lauds. (See also 66 Geo. III. o. 141.) And by the above- 

 mentioned stat 1 and 2 Will. IV. c. 45, rectors and vicars 

 are enabled to charge their benefloes in favour of chapels of 

 ease within their cures. 



Although an ecclesiastical benefice cannot be alienated 

 for the satisfaction of the incumbent's debts, the profits may 

 be sequestrated for that purpose, even where the debt arises 

 from an annuity which the incumbent has attempted to 

 charge upon the benefice. (Vide it Darn, and Adolp. 784.) 

 And this is the ordinary practice upon a judgment against 

 a clergyman in one of the temporal courts. The writ </l 

 fieri facias issues against him as in the case of a layman, but 

 the sheriff returns that he is a benefteed clerk, having no lay 

 tea ; upon which a writ of levari facias issues to the bishop 

 of the diocese, by virtue of which the profits of the benefice 

 ore sequestrated until the whole debt is satisfied. (See 8- 



QUE8TRATION.) 



In case of a beneflced clergyman seeking his discharge 

 under the insolvent act, the assignees of his estate must 

 apply for a sequestration, in order to render the profits of 

 the beneBce available for the payment of his debts. (See 

 7 Geo. IV. c. 57, s. 28.) 



Tho duties and liabilities of spiritual persons come more 

 properly under the head of CLKROV, but it is not inconsist- 

 ent with the subject of the present article to mention the 

 non- residence of spiritual persons upon their benefices, which 

 (besides being cognizable in the ecclesiastical court.-.) is 

 visited with severe penalties by different acts of parliament. 

 The principal of the old enactments on the subject is slat 

 21 Hen. VIII. c. 13 (amended and enlarged by 35 Hen. VIII. 

 c. 16 ; 128 Hen. VIII. c. 13, and 33 Hen. VIII. c. 08), which 

 imposes certain penalties upon persons wilfully absenting 

 themselves from their benefices for one month together, or 

 two months in the year. 



But this act exc.epts the chaplains to the king and royal 

 family, those of peers, peeresses, and certain public officers, 

 during their attendance upon the household of such as re- 

 tain them ; and also all heads of colleges, magistrates, and 

 professor* in the universities, and all students under a cer- 

 tain age residing there bonafide for study. And the king 

 may grant dispensations for non-residence to his chaplains, 

 even when they are not attending his household. The resi- 

 dence intended by the law must be in the parsonage house, 

 if there be one; but if there be no house of residence, the 

 incumbent must reside within the limits of the benefice, or 

 of the city, town, or parish where the benefice is situate, pro- 

 vided such resilience be within two miles from the church 

 or r Impel of the benefice: and in all such coses a residence 

 may l>c appointed by tho bishop, even without the limits of 

 the benefice. These acts (which extend also to an 

 ronrios, deaneries, and dignities in cathedral and colle- 

 giate churches) have been consolidated and amended by 

 btat. 57 Geo. 111. c. 99. By this act, every incumbent ab- 



senting himself from a benefice with cure, without licence, 

 fur the period of three months consecutively, or at sc< 

 times for so many days as are equal to this period, and 

 abiding elsewhere than at some other benefice, l 

 for an absence exceeding three months, but not above six 

 months, one-third of the annual value of the benefice, clear 

 of all outgoings except the curate's salary. Absences of a 

 longer duration are subjected to proportional penalties, and 

 the whole of the penalty in each case is given to the party 

 suing, together with such costs as are allowed by the prac- 

 tice of the court where the action is brought. All who 

 were exempt from residence before the last statute are still 

 exempt, and tho exemption is extended to several other-. 

 including public officers in either of the two universities and 

 tutors and public officers in any college. Students in the 

 university are exempted till they are thirty years of 

 and the king's prerogative to grant dispensations for non- 

 residence to his chaplains is not affected by tho statute. 

 But no person can have the benefit of nn exemption, unless 

 he make a notification of it every year, within i-ix weeks 

 from the 1st of January, to tho bishop of the diocese, lie- 

 sides the exemptions, the bishop may grant a licence for 

 non-residence for the illness or infirmity of an incumbent, 

 his wife, or child, and for other causes specified in the act) 

 and if the bishop refuses a licence, the incumbent may up- 

 peal to the archbishop. The bishop may also grant he, 

 for non- residence for causes not specified in the act, but in 

 that case the licences must be allowed by the archbishop. 

 Licences may bo revoked, and no licence can continue in 

 fui-iv above three years from the time of its being granted, 

 or after the 31st of December in the second year after that 

 in which it is granted. The act also contains directions 

 with respect to the lists of exemptions and licences fur non- 

 residence, which are to be kept in the registry of each dio- 

 cese for public inspection. 



The act 57 Geo. III. c. 99 provides also for the appoint- 

 ment of licensed curates in benefices, the incumbents of 

 which are absent with or without licence or exemption, and 

 regulates the salaries of such curates upon a scale propor- 

 tioned to the value of each benefice, and the number of the 

 population within its precincts; and in all cases of non-resi- 

 dence from sickness, age, or other unavoidable cause, tho 

 bishop may fix smaller salaries at his discretion. 



There are other liabilities which parsons, vicars, and other 

 spiritual persons necessarily incur in respect of their bene- 

 fices. Thus, by 43 Klu. c. '2, they are rateable in respect of 

 their benefices for the relief of the poor; and, although the 

 burden of the repairs of the body of the church falls upon 

 the parishioners, the rector (and, where the parsonage is ap- 

 propriated, the impropriator) is liable for the repairs ef the 

 chancel. And the stat. 35 Ed. I. sess. 2, the object of which 

 was to prohibit rectors from cutting down trees in church- 

 yards, contains an express exception of the case where such 

 trees are wanted for the repair of the chancel. 



Besides the liability implied in the last-mentioned prohi- 

 bition, all ecclesiastical incumbents are liable for dilapida- 

 tions. A dilapidation is said to be tiie pulling down or de- 

 stroying in any manner any of the houses or buildings be- 

 longing to a spiritual living, or suffering them to run into 

 ruin or decay, or wasting or destroying the woods of the 

 church, or committing or suffering any wilful waste in or 

 upon the inheritance of the church. Such proceedings may 

 l>e prevented by the spiritual censures of the ordinary : and 

 tho profits of the benefice may be sequestered until tho 

 damage be repaired ; and the Court of Chancery will, at 

 the suit of the patron, grant nn injunction to restrain this as 

 well as every other species of waste. Or the next incum- 

 bent may recover damages for dilapidations either in tho 

 Spiritual Court, or in an action on the case at common law 

 against his predecessor, or, if ho be dead, against his per- 

 sonal representatives. 



The remedies for the subtraction of tithes given by the 

 law of England to the clergy arc suflieicntly ample. Thus 

 stat. 2 and 3 Kd. VI. enables them either to recover the 

 tithes themselves in the Spiritual Courts, together with tho 

 double value of such tithes in addition, or to recover the 

 trehlu value in the temporal courts. Some recent statutes, 

 and particularly 53 Geo. III. c. 127, and 7 Goo. IV. o. 15, 

 No given it summary remedy for the recovery of tithes 

 under a certain amount before two justices of the peace, 

 who are emp uuered <o levy them by distress. But ques- 

 tions of title to tithes belong to the temporal courts only, 

 and are generally determined by a suit on the equity bide 



