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PLURALITIES.

The old canon law with regard to pluralities, i.e., the holding by the same person of more than one benefice, was extremely strict, as the canon made in the Council of Lateran, A.D. 1215, ordained that whosoever should take any benefice with cure of souls, if he should before have obtained a like benefice, should ipso jure be deprived thereof, and if he should continue to retain the same he should be deprived of the other. The severity of this canon was softened by dispensations, but the old law on the subject possesses nothing more than historical interest, as the whole subject of Pluralities is now governed by the Pluralities and Residence Act, 1 & 2 Vict. c. 106, amended by 13 & 14 Vict. c. 98 and 48 & 49 Vict. c. 54. "The Pluralities Acts Amendment Act, 1885;" and as pointed out by Mr. Cripps, there is probably no branch of the law relating to ecclesiastical matters or affecting ecclesiastical persons which has been so completely altered by enactment (1).

The 2nd section of 1 & 2 Vict. c. 106 provides that no spiritual person (with an exception in favour of archdeacons) can hold more than one cathedral preferment and one benefice. This, however, is qualified by a provision that a dispensation to hold two benefices together may be obtained from the archbishop on a representation made by the bishop, and an appeal lies from the archbishop to the Queen in Council.

The effect of the two later Acts is that any clergyman may, with such licence or dispensation as is required for the holding together of two benefices, take and hold together any two benefices, the churches of which are within four miles of one another by the nearest road, and the annual value of one of which does not exceed two hundred pounds, or if on one of the said benefices there be no church, then the distance between the two benefices for the purposes of this Act shall be computed in such manner as shall be directed by the bishop of the diocese; but, except as aforesaid, it shall not be lawful for any clergyman to take and hold together any two benefices (2). If the population of one benefice is more than 3000, another cannot be held with it with a population above 500 according to the last census, whatever the distance or value, and vice versâ.

If a beneficed clerk is instituted to another benefice without

(') Cripps' Law of the Church and Clergy, 6th ed. 502.
(*) 48 & 49 Vict. c. 54, s. 14.

the necessary dispensation, the first benefice becomes ipso facto vacant (1).

RESIDENCE.

The strictness of the old canon law with regard to pluralities. found its counterpart in the corresponding rules on the subject of residence, but the subject is now governed by statutory provisions (chiefly contained in 1 & 2 Vict. c. 106).

Every incumbent of a benefice, with cure of souls, must "keep residence in his benefice, or one of them if he have more than one, and in the house of residence (if any)." This enactment is enforced by the following stringent penalties:—

If the absence in one year exceed three calendar months altogether, the incumbent forfeits one-third of the annual value of the benefice; if it exceed six months, one-half; if eight months, two-thirds; and if the absence be for the whole year, three-fourths of the annual value; unless he have his bishop's licence, or be resident in another of his benefices (2).

In addition to these penalties, residence may be enforced by monition, followed thirty days after its service in case of non-compliance, by an order to come and reside, which, after the expiration of a further period of thirty days, may be followed by sequestration of the benefice. It may also be enforced by the compulsory appointment of a curate.

A licence of non-residence may be obtained by petition to the bishop on various grounds enumerated in the Act, viz., dangerous illness of wife or child residing with the incumbent, want of fit house of residence, &c., &c. There may also be special licence granted on other grounds with the consent of the archbishop. Certain persons are, however, exempted from the law as to residence (3).

The widow of a deceased incumbent may remain in the house of residence, where her husband was residing at the time of his decease, for two calendar months (4).

(1) By 32 & 33 Vict. c. 69; 32 & 33 Vict. c. 109, provides that no proceedings are to be taken against any spiritual person for enforcing residence upon his benefice, or by reason of non-residence upon his benefice, except under 1 & 2 Vict. c. 106, and 13 & 14 Vict. c. 98, or of any Act amending the same; and no

penalty or forfeiture shall be incurred
in consequence of non-residence, save
and except such penalties as are pro-
vided by the said Acts, or any Acts
amending the same.

(2) 1 & 2 Vict. c. 106, s. 32, et seq.
(3) 1 & 2 Vict. c. 106, s. 42.
(*) 1 & 2 Vict. c. 106, s. 36.

INCUMBENTS' RESIGNATION ACT, 1871.

The "Incumbents' Resignation Acts, 1871 and 1887," enable an incumbent, who has held a benefice for seven years continuously, to make a representation to the bishop, in the prescribed form, alleging that he is incapacitated by permanent mental (1) or bodily infirmity, from the due performance of his duties. The bishop has then power to issue a Commission.

The Commissioners are empowered to allow a pension to the retiring clerk out of the revenues of the benefice. It must not exceed one-third part of the net annual value of the benefice, and shall leave at least a sufficient income to secure to the succeeding incumbent a stipend upon the scale of Curates' Stipends (under 1 & 2 Vict. c. 106, s. 5).

Where the revenues of the benefice are derived from tithe rent-charge or glebe lands, the pension is to vary with the fluctuating corn averages which govern the value of the tithe rent-charge.

This pension is a charge upon the income which the succeeding incumbent is to receive, and is recoverable from him as a debt.

The retired clerk is still amenable to the ecclesiastical discipline; and for certain ecclesiastical offences may have the pension forfeited or suspended as if he were still incumbent. If he is admitted to another benefice, or undertakes clerical duties elsewhere than within the benefice from which he retired, the pension is to cease, or the bishop may order some temporary or permanent reduction of it (2).

The nature of a pension payable to a retired clerk under the Incumbents' Resignation Act, 1871, was much considered by the Court of Appeal in a case decided in 1880. There a retired clerk brought an action against the incumbent of a benefice for payments of the arrears of a pension allowed him under the Act, and the question arose whether the incumbent could set off against the arrears a judgment debt previously due from the plaintiff; the Court of Appeal (affirming the decision of Sir George Jessel) deciding this point in the negative.

The Act, said the judges of the Court of Appeal, does not say "shall not be assigned," but it says "shall not be transferable." Now "transfer" is one of the widest terms that can be used. That very word was used by the legislature not only to

(1) Where the incumbent is found a lunatic, the committee of his estate is to act for him.

(2) See as to resignation not under this Act, Reichel v. Bishop of Oxford,14 App. Cas. 259, affirming 35 Ch. D. 48.

Resignation.

prevent the incumbent from assigning himself, but for prevent-
ing any transfer by operation of law in invitum, not only to
prevent a voluntary dealing by an incumbent with an annuity,
but to prevent the annuity vesting in a trustee in bankruptcy,
or being seised or attached under a garnishee order by an
execution creditor, or otherwise transferred.
He is only
allowed to withdraw from his incumbency with the consent of
the bishop, and subject to such control as to the bishop or the
patron may seem right, by reason of his infirmity, of age, or
otherwise. One sees why that provision was put in. Provision
is made so that an aged clergyman resigning, and in many
instances receiving a very small sum, as is the case in nine-
tenths of the cases in this country, should have the entire
allowance during the continuance of his infirmity, and not be
driven to live in the workhouse, which would not be a very
creditable result of such a section of the Act of Parliament.

The effect of the section is that while it is a pension, that is to say, while it remains a charge on the benefice, or while it remains suable for as a debt from the incumbent, it is that which the late incumbent cannot by any act of his own transfer to another. So, in my opinion, it cannot be transferred to another by operation of law in consequence of that other person having got a judgment or other process of law, by which, if it were the absolute property of the debtor without any parliamentary fetter, the creditor could make himself master of the fund and say, "I am entitled to receive it" (1).

The Act provides that if a retired clerk shall on retirement have become liable to the payment to his successor of any sum on account of dilapidations under the Ecclesiastical Dilapidations Act, 1871 (post, p. 1131), and shall not have paid such sum in manner in that Act mentioned, it shall be lawful for the incumbent of the benefice for the time being to withhold the amounts due from time to time in respect of any pension granted under the principal Act, and to apply the same in discharge of the sum due for dilapidations as aforesaid until the whole debt shall have been discharged. This, however, is subject to a proviso that the amount so withheld in any one year shall not exceed one-half the total amount of the pension for such year without the consent of the bishop of the diocese in which such benefice shall be situate.

(1) Gathercole v. Smith, 17 Ch. D. 1, 9.

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CURATES.

The term "curate" would appear to have originally comprehended all clerks who had cure of souls, but it is now applied to temporary or stipendiary curates who are employed and paid by a rector or vicar.

Where any benefice which has a licensed curate becomes vacant, the successor may give the curate six weeks' notice to quit, but this privilege can only be exercised within six months from the time of his institution. In all other cases the incumbent of any benefice, whether resident or nonresident, must give six months' notice, and must obtain the permission in writing of the bishop of the diocese, before so doing (1).

No curate shall quit any curacy to which he shall be licensed until after three months' notice of his intention given to the incumbent of the benefice and to the bishop, unless with the consent of the bishop in writing, upon pain of paying to the incumbent a sum not exceeding the amount of his stipend for six months, at the discretion of the bishop (2).

A bishop has power, after giving a curate sufficient opportunity of showing reasons to the contrary, to revoke his licence summarily, subject to an appeal to the archbishop (3).

curacy.

A curious question arose in 1888 with regard to the validity Notice to of a notice given by an incumbent to a curate to quit his quit curacy. The Act 1 & 2 Vict. c. 106, s. 95, prescribes that in all cases in which proceedings under the Act are directed to be by monition and sequestration, the monition shall issue under the hand and seal of the bishop, and such monition and any other instrument or notice issued in pursuance of the provisions of this Act, and not otherwise specially provided for, shall be served by shewing the original notice to the party served, and leaving with him a copy, and if he cannot be found, by leaving a copy at his last residence, and affixing another copy to the door of his parish church, and the original notice with an affidavit of service is then directed to be filed in the Consistorial Registry of the diocese (*). It was decided that these provisions did not apply to the notice to quit the curacy which was given under s. 95 of the Act.

() 1 & 2 Vict. c. 106, s. 95. An
appeal from the bishop's refusal within
one month lies to the archbishop.
(2) 1 & 2 Vict. c. 106, s. 97.

(3) 1 & 2 Vict. c. 106, s. 98.
(4) Tanner v. Scrivener, 13 P. D.
128, 129.

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