Abridgment of Ecclesiastical Laws, Treatise · Chapter 28
CHAP. XXVIII.
Of Incumbents; as alſo of Reſidence and Non-Reſidence.
1. Incumbent, who properly ſuch; why ſo called, and what things preparatory to a compleat Incumbent.
2. The Rights of a Compleat Incumbent.
3. The Rights of an Incumbent's Executor as to the Glebe.
4. The Reſident Incumbents duty, that keeps a Curate.
5. Whether he be an Incumbent, who is in by the Kings Preſentation, where the King miſtakes his Title.
6. Whether an Incumbent may plead (as ſuch) who was not Incumbent ante impetrationem Brevis.
7. Whether the Non-Reſidency of an Incumbent were puniſhable by the High Commiſſioners.
8. How the 80 daies abſence in a year ſhall be underſtood to include Non-Reſidency, according to the Statute, &c.
9. The Laws in force concerning Reſidence and Non-Reſidence, and who are qualified for Non-Reſidence.
10. The Canon in the Provincial Conſtitutions touching the Non-Reſidence of Vicars on their Vicarages.
11. The Form of the Oath of Reſidence on a Vicarage.
12. Whether a Parſon inhabiting in a Meſſuage very nigh adjoyning to the Parſonage-houſe, which he keeps alſo in his own hands, be a Reſident within the intent of the Statute.
13. What the Law requires for Reſidence; and what are the juſt Cauſes of Non-Reſidence.
14. An Incumbent ſtands charged with the Arrerages of a Penſion, iſſuing out of his Church, that were behind in his Predeceſſor's time, as well as thoſe accruing in his own time.
15. The Conſtitution touching the Oath of Reſidence; as alſo how the Incumbent may be out of his Pariſh, and yet be reputed as Reſident.
16. What ſhall be accounted ſuch an Abſence or Non-Reſidence within the Statute, as to avoid a Leaſe made by the Incumbent.
17. Indictment againſt a Common Informer, exhibiting an Information againſt Two Parſons; one for Non-Reſidence, the other for taking a Farm.
18. Covenants as well as Leaſes made void by the intent of the Statute of 13 & 14 Eliz. by reaſon of Eighty days Abſence.
(1.) INcumbent, from incumbere (ſignifying as well to poſſeſs and keep ſafely, as to endeavour earneſtly) is a Clerk duly Poſſeſt of and Reſident on his Benefice with CureaCo. on L. fo. 119. b.. For the faithful diſcharge whereof he is to employ his ſtudy and utmoſt endeavourb10 H. 6. 7.: For which reaſon eſpecially he is ſo denominated. There are Four things preparatory to the being of a Compleat Incumbent: (1) The Patron's Preſentation, or his free Gift or Commendation of his Clerk to the Parſonage or Vicarage by writing in his favour to the Biſhop. (2) The Biſhop's Admiſſion of ſuch Clerk by his allowance or approbation of him after due Examination, and by making a Record of his Name accordingly. (3) The Clerks Inſtitution to ſuch Benefice or Vicarage by the Biſhops words, Inſtituto te, &c. (4) The Clerk's Admiſſion or Induction, whereby he is put into Actual poſſeſſion thereof by the Archdeacon's or others delivery to him of the Ring or Keys of the Church-door, ringing the Bells, &c. And until theſe things be done, he is not a Compleat Incumbent cArt. Cle. ch. 13, 14 H. 7. 28. Dyer 326. Co. 5. 58. 4. 79.. After which, and poſſeſſion Six months, there is ſuch a Plenarty as gives ſuch a Title to that Preſentation, as will barr pro hac vice any others in a Quare Impedit d21 El. 4. 34. & Kelw. 88. Co. 4. 79. 7. 38. on Litt. 344.. So that thoſe things that are to make a perfect Incumbent (after Preſentation had) do depend upon the duty of the Ordinary; as (1) Admiſſion, which requireth Examination of the Clerk; whereupon ſometimes enſueth Refuſal, and thereupon either Notice or no Notice (as the caſe requires) is to be given to the Patron. (2) Inſtitution. (3) Induction. Upon the Patron's not Preſenting within the time limited, the Lapſe incurrs to the Biſhop, from him to the Metropolitan, and from him to the Crown, where it reſteth. But if the Biſhop take his time, then is his Preſentation a Collation, and in the Right of the Patron himſelf.
(2.) The Incumbent is that perſon in Law, to whom the Fruits of any Eccleſiaſtical Benefice do belong, inſomuch that the Fruits taken during the vacation or vacancy of a Benefice, ſhall be reſtored to the next IncumbenteSt. 28 H. 8. c. 11., who ſtands charged to the King for the Firſt-Fruits, to be accounted immediately from and after the Avoidance or Vacancy of any ſuch Benefice or Spiritual promotionfIbid.; and for that end, and towards the payment of the ſaid Firſt-Fruits, the next Incumbent ſhall have a reſtitution, of the Tithes, Fruits, Oblations, Obventions, Emoluments, Commodities, Advantages; Rents, and all other Revenues, Caſualties, and Profits whatſoever, certain and uncertain, belonging to any Archdeaconry, Deanary, Prebend, Parſonage, Vicarage, Hoſpital, Wardenſhip, Provoſtſhip, or other Spiritual promotion, Benefice, Dignity, or Office, growing or ariſing during the vacancy of any of the ſaid Spiritual promotionsgStat. ibid. & Coke pla. fo. 368.; and every Archbiſhop, Biſhop, Archdeacon, Ordinary, or any other perſon, having to his or their uſes received the ſame, that ſhall refuſe to render and reſtore the ſame to the next Incumbent, ſhall forfeit the treble value of what he hath ſo receivedhSt. ibid..
(3.) If any Incumbent happening to depart this life during the Incumbency or Plenarty, ſhall before his death have cauſed any of his Glebe Lands to be manured and ſowed at his proper coſt and charges with any Corn or grain, he may in that caſe make his laſt Will and Teſtament of all the profits of the Corn growing upon the ſaid Glebe-Lands by him ſo manured and ſowniIbid. 21 H. 6 fo. 20. 34 H. 6. fo. 38.. And if one be put into a Place, then removed, and another put in, the firſt ſhall have the Tithe happening in ſuch VacancykHil 18 Jac. Wood's Caſe.; for the ſucceeding Parſon ſhall have the Tithes happening during the Vacancy, deducting the charges of collecting the ſame, and ſerving the Cure during ſuch Vacancy. Alſo if an Incumbent be removed in a Quare Impedit, the Plaintiff ſhall not have the main profitslPer Co. Mich. 12 Jac. B. R. Caſe Gratnge and Howlett. Roll. Rep.. And an Incumbent being in by Uſurpation, he cannot be removed but by a Quare Impedit mMich. 13 Jac. B. R. Caſe of the King verſ. Biſh. of Norwich..
(4.) An Incumbent Reſident that keeps a Curate, is obliged to read the Common Prayers in his Pariſh-Church once a month in his own perſon, on pain of forfeiting Five pounds for every omiſſion nSt. 14 Car. 2. c. 14..
(5.) In Thomſon's Caſe, where T. Libelled for Dilapidations againſt the Executors of his Predeceſſors, and Henden moved for a Prohibition; for that that T. is not Incumbent, for his Preſentation was by the King ratione Minoritatis of one C. and the King had not any ſuch Title to Preſent: for where the King miſtakes his Title, the Preſentation is void, and he is no Incumbent. 6. Rep. 26. Green's Caſe. And Sir Tho. Gawdy's Caſe, where the King Preſented jure Prerogat. when he had another Title; and the preſent Action was adjudged void, and whether he is Incumbent or not, that ſhall be tried. But by the Court a Prohibition was denied, becauſe that he was now Incumbent. And the Judges would not take notice of the ill Preſentation of the King: But in caſe of Simony the Statute makes the Church void, and then the Judges may take notice of that, and grant a Prohibition, if the Parſon ſues for Tithes. But if a Quare Impedit be brought, and appears that the King had not cauſe of Preſentation, then a Prohibition may be granted: which was alſo granted by all the other Juſtices. Mich. 3 Car. C. B. Thomſon's Caſe. Hetley's Rep.
(6.) In Dame Chichleys Caſe againſt the Biſhop of Ely it was ſaid by Henden, That an Incumbent by the Statute of 25 Ed. 3. c. 7. cannot plead (quatenus ſuch) unleſs he be Incumbent ante diem impetrationis Brevis, unleſs he be Incumbent pendente lite he cannot plead, &c. Hutton, If one be Preſented, Inſtituted, and Admitted before the Writ, and Inducted after, and before his Pleader, he may plead welloPaſch 3 Car. C. B. in dict. Caſ. Chichley. Hetley's Rep..
(7.) A Libel was againſt H. Vicar of S. in the High Commiſſion-Court at York, becauſe that he was not Reſident, but lived at Doncaſter, and neglected to ſerve his Cure; and that divers times he, when the High Court viſited, ſpoke ſo loud, that he was offenſive to many, and being reproved for that, he gave a Scornful Anſwer: And that there was one Wright in the Pariſh, who had a Seat in the Church, and that the Vicar would Spit in abundance into the ſaid Seat, and that when Wright and his Wife were there. And that in his Sermon he made Jeſts, and ſaid, That Chriſt was laid in a Manger, becauſe he had no mony to take up a Chamber, but that was the knavery of the Inn-keeper; he being then in contention with an Inn-keeper in the Pariſh. And that in time of Divine Service he thruſt open the door of Wright's Seat, and ſaid, That he and his Wife would ſit there, in diſturbance of Divine Service. And for that a Prohibition was prayed and granted; for the High Commiſſion cannot puniſh Non Reſidency, nor breaking the Seat in Divine Service: And the other were things, for which he ſhall be bound to the good behaviour; and the Complaint ought to be to the Ordinary pHowſon's Caſe. Herl. Rep. 13 Eliz. c. 20 That Statute ſpeaks of Abſence not above 80 daies in a year in the Parſon; 40 daies in a Curate..
(8.) Note, by Tanfield, that by the Statute of 13 Eliz. cap. 20. of Non-Reſidency, That if the Parſon be Abſent 80 daies in a year, although it be at ſeveral times (viz.) ten daies at one time, and twenty daies at another time, until eighty daies, &c. That is within the Statute, by which it hath been AdjudgedqSidner verſ. Calver. Noy's Rep..
(9.) The perſonal Reſidence of all Eccleſiaſtical perſons on their Cures reſpectively is a duty ſo incumbent on them for the better diſcharge of their Sacred Function, the prevention of Dilapidations, and the maintenance of Hoſpitality, that it is enacted, That every Spiritual perſon promoted to any Archdeaconry, Deanary, or Dignity in any Church Cathedral or Collegiate, or Beneficed with any Parſonage or Vicarage, ſhall be perſonally Reſident and abiding in, at, or upon ſuch Dignity, Prebend, or Benefice, or one of them at the leaſt; and that if any ſuch perſon wilfully Abſent himſelf from his ſaid Benefice, &c. by the ſpace of a Month at one time, or two Months at ſeveral times in any one year, to be accounted at ſeveral times, that ſuch perſon ſo abſenting ſhall forfeit ten pounds for every ſuch defaultrSt 21 H. 8. cap. 13.. It is alſo further provided, That the Parſon or Vicar ſhall be Reſident in and upon his Parſonage or Vicarage-Houſe (if he have any) and not at any other Houſe in the Pariſh; but if he hath no Houſe on his Glebe, or be removed without fraud for his Health, or without fraud Impriſoned, or be beyond Sea in his Majeſties Service, or without fraud abide in any Univerſity within this Realm to ſtudy, or be a Chaplain qualified for Plurality by the Statute of 21 H. 8. either of theſe may excuſe his Reſidence for the timesCo. 6. 21. b.. Alſo the King may give a Licenſe to any of his own Chaplains to be Non-Reſident t21 H. 8. c. 13.: And any Eccleſiaſtical perſon may be Non-Reſident for ſuch time as without fraud he is attending a Suit in Chancery. There are alſo other Chaplains of other perſons that are qualified for Non-Reſidence u25 H. 8. cap. 16. 33 H. 8. c. 28. 21 H. 8. c. 13. Vid. Parſ. Counſ. p. 1. cap. 7., which for brevities ſake are here omitted. And where a Chaplain is qualified in reſpect of his Service for Plurality, if his Lord die, or be Attainted, or be removed from his place, it will not it ſeems ſuffice that he be Reſident only upon one of his Livings, without the King's Special Licenſe with a Non obſtante xCo. 4. 119. a..
(10.) The Canon made by Cardinal Otho, and afterwards Confirmed and de novo Eſtabliſhed by Othobon, ſeems very ſevere as to Vicars in caſe of Non-Reſidence; for in their Conſtitutions it is Ordained, That if any Non-Reſident ſhall receive the profits or Fruits of a Vicarage, he ſhall reſtore the one Moity thereof to the Church, one half of the other Moity to the Poor of that Pariſh, and the reſt to the Archdeacon of the place, if he diſcharge his duty in making a diligent Enquiry yearly herein, and ſhall forthwith make it known to the Biſhop; and whoever ſhall diſobey the Premiſſes by one Month, ſhall alſo be deprived of his other Benefices, if he have any, and be rendered incapable of ever having that Vicarage again, or any other Benefice for Three years: And in caſe the Archdeacon ſhall neglect what herein is enjoyned him, he ſhall be deprived of that part allotted him as aforeſaid, and ſuſpended ab ingreſſu Eccleſiae. Conſtit. Othobon. de Reſidentia Vicariorum.
(11.) The Oath of Reſidence on a Vicarage is as followeth, viz. Ego A. B. juro, Quod ero Reſidens in Vicaria mea, niſi aliter diſpenſatum fuerit à Dioeceſano meo. What Spiritual perſons may be diſcharged of Reſidence, and by what means, vid. St. 21 H. 8. 13.
(12.) In an Information upon the Statute of 21 H. 8. cap. 13. of Non-Reſidency, Hill. 8 Jac. 1610 Canning verſ Dr. Newman. Brownl. pa. 2.it was found by Special Verdict, That Dr. N. was Incumbent, inveſted in the Rectory of S. and that he was alſo ſeized of a Houſe in S. aforeſaid, ſcituate within twenty yards of the Rectory, and that the Manſion-houſe of the ſaid Rectory was in good Repair, and that Dr. N. held that in his hands and occupation with his own proper Goods, and did not Lett it to any other, and that he inhabited in the ſaid Meſſuage, and not in the Parſonage. The Statute of 21 H. 8. cap. 13. provides, That every Parſon promoted to any Parſonage, ſhall be Perſonally reſident, and abiding in, at, and upon the ſaid Benefice: And in caſe any ſuch Spiritual Parſon keep not Reſidence at his Benefice, as aforeſaid, but Abſent himſelf wilfully by the ſpace of a Month together, or two Months to be accounted at ſeveral times in any one year, and makes his reſidence or abiding in any other places by ſuch time, that then he ſhall forfeit for every ſuch default Ten pounds, the one half to the King, the other half to the Informer. The Queſtion was, Whether the ſaid Dr. N. were Non-Reſident, and incurred the penalty of this Statute? It was Argued by Houghton, that he had incurred the penalty of the Statute, and was Non-Reſident within the intent thereof; he ſaid, that to ſome intent all the Pariſh may be ſaid the Benefice of the Parſon, for that he hath Benefit out of it, and he is called Parſon of ſuch a Town or Pariſh; but this is not the Benefice that the Statute intends, upon which he ought to be Reſident, &c. Alſo he ſaid, That there were Seven cauſes of making the ſaid Statute, whereof but Two are to our purpoſe; the one is Hoſpitality, the other Relief of the Poor, and theſe are to be done in the Parſonage-houſe, for this is the Free Alms of the Church: And ſo it was Adjudged, 34 Eliz. B. R. Broom and Hudſon; and 40 Eliz. B. R. between Butler and Goodall. Coke 21. b. That he ought to be Reſident upon the Parſonage-houſe, and not elſewhere; and he agreed, That Impriſonment without deceit, and Sickneſs, are good Excuſe. For the Defendant, Barker Serjeant argued, That it appears by the Special Verdict, that Dr. N. held the Parſonage-houſe in his own hands, and did not Lett it; whence he inferr'd, That his Servants were reſident upon it, &c. and that by the Council of Lateran all the Pariſh is made the Benefice of the Parſon, &c. Alſo, that before the ſaid Statute every Spiritual man was obliged and compellable by the Eccleſiaſtical Law to be Reſident; yet if he were in the Kings Service, or an Officer of the Chancery, he ſhould be excuſed, as appears in the Regiſter, fo. 51. b. though that he were Dean, the which Office meerly requires his Perſonal Reſidence, as it is there ſaid. This Caſe was compounded by the Lord Coke, but he intended this was no Reſidence within the Statute, for this was not his Benefice, but the Tenants part of that, as he ſaid hath been Adjudged in the Exchequer.
(13.) In Butler and Goodall's Caſe,Vid. More's Rep. Co. 5. Butler and Goodall's Caſe. 40 Eliz. B. R. it was Reſolved upon the Statute of 21 H. 8. That a Parſon of a Church ought to ſtay and be commorant upon his Rectory (viz.) upon the Parſonage-houſe, and not in any other Houſe, although it be within the Pariſh; but lawful Impriſonment without Covin, is a good cauſe of Non-Reſidence: Alſo, if there be no Parſonage-houſe (for impotentia excuſat Legem) alſo Sickneſs without fraud, if the Patient remove by advice of his Counſel in Phyſick, bona fide, for better air and recovery of his health. The Statute is intended not only for ſerving the Cure, but alſo for maintaining the habitation of the Parſon, for him and his Succeſſors, and for Hoſpitality. Vid. Co. 6. pa. 21. & Cro. par. 1.
(14.) In the Caſe between Trinity Colledge and Tounſtall it was Reſolved,Cro par. 1. That an Annuity by Preſcription for a Penſion iſſuing out of the Church lay againſt the Incumbent, as well for the Arrearages due in the time of his Predeceſſor, as in his own time; for that the Church it ſelf is charged with it in whoſe hands ſoever it comes.
(15.) By Cardinal Otho's Conſtitution [De Inſtitutione Vicariorum] it is Ordained, That none ſhall be Admitted to a Vicarage, unleſs he firſt take his Oath, that he will have his perſonal and conſtant Reſidence thereon; otherwiſe his Inſtitution thereto to be null and void, and the Vicarage to be conferred on another. Conſt. Othon. de Inſtit. Vicarior. From which Canon the Gloſs thereon doth raiſe this Queſtion, viz. Whether a Vicar not having poſſibly any Dwelling-houſe yet built for his habitation in the Pariſh, and living for that reaſon in ſome neighbour-place, and at another man's Table out of his Pariſh, may according to the Oath aforeſaid enjoyned by the ſaid Canon, be ſaid to be Reſident? where the Queſtion though argued in the Negative, yet is Reſolved in the Affirmative; and that he ſhall be reputed as Reſident, if he be ſo nigh ſcituate to his Pariſh, that the Inhabitants thereof may conveniently have acceſs to him, as oft as the Pariſhioners have need of his Miniſtry, and ſo as on all requiſitions he be ready to adminiſter the Sacraments within the Pariſh; for in conſtruction of Law, he is ſaid to make his reſidence ſufficiently there or in that place, where he doth diſcharge his work and duty, albeit he lives elſewhere: L. cum quidam facit. ff. defun. inſtruct. Likewiſe, the Law in requiring ſuch Reſidence aims as well at Hoſpitality as at the diſcharge of the Miniſtry. Alſo, he that is Abſent only about the affairs of the Church, is reputed in Law as Preſent and Reſident: Alſo the Biſhop may diſpenſe with his Non-reſidence notwithſtanding ſuch Oath aforeſaid: Glo. in ver. Reſidentiam. dict. Conſt. Otho. Yea, he may alſo be ſometimes Abſent not only upon neceſſary, but alſo upon his Family-occaſions, with Licenſe from the Biſhop, as alſo for his Recreation, where it is for recovery of his health, or prevention of Sickneſs. Gloſſ. ibid.
(16.) In an Action upon the Caſe, for a Promiſe, upon a Non aſſumpſit pleaded, a Special Verdict was found, upon which the Caſe appeared to be this: The Defendant by Indenture did Demiſe unto the Plaintiff all his Tithe of Corn and Hay, and the Agreement between them was this,Paſch. 7 Jac. B. R. Shepherd verſ. Twolſie. Bulſtr. Rep. par. 1. the Plaintiff ſhould pay him for the Tithe fifty five ſhillings, and this by agreement was to be paid at a day certain, then following: The Defendant having this Tithe, paſſed the ſame in this manner to the Plaintiff, and upon this Agreement and Promiſe, being not performed, the Plaintiff brought his Action. It was found, that the Defendant confeſſed the Agreement to be ſo, but in Barr he pleaded the Statutes of 13 Eliz. cap. 20. and of 14 Eliz, cap. 11. for the avoiding of Leaſes made by a Parſon, by his Abſence from his Living by the ſpace of eighty daies in one year, and alſo ſhews that one Stallowe who was Parſon of Sharrington, to whom theſe Tithes did belong (and in whoſe Right the Defendant claimed them) was Abſent from his Parſonage by the ſpace of eighty daies in one year, and ſhews in what year, and ſo by this his intereſt determined, and Agreement with the Plaintiff by this made void; but they found further (as the Plaintiff made it to appear) That Stallowe the Parſon of Sharrington was not Abſent in manner as it was alledged, for that they found, that he did dwell in another Town adjoyning, but that he came conſtantly to his Pariſh-Church, and there read Divine Service, and ſo went away again: They did alſo find, hat he had a Parſonage-houſe in Sharrington fit for his habitation; and whether this were an Abſence within the Statute, as to avoid his Leaſe, they left that to the Judgment of the Court. Yelverton Juſtice, This is a good Non-Reſidency within the Statute of 21 H. 8. cap. 13. but not an Abſence to avoid a Leaſe made within the Statute of 13 Eliz. cap. 20. It cannot be ſaid here in this Caſe, that he was Abſent, for he came four daies in every week, and in his Pariſh-Church did read Divine Service. Williams Juſtice, upon the Statute of 13 and 14 Eliz. the Parſon ought not to be Abſent from his Church eighty daies together in one year (à Rectoria ſua;) but this is not ſo here, for he came to his Church, and read Divine Service there every Sunday, Wedneſday, Friday, and Saturday, and therefore clearly this cannot be ſuch an Abſence, within the ſcope and intention of theſe Statutes, as thereby to avoid his Leaſe. Yelverton Juſtice, he ought to be Abſent eighty daies together, per ſpatium de Octogin. diebus & ultra, and this to be altogether at one time, and ſo the ſame ought to have been laid expreſly, the which is not ſo done here, for that it appears here, that he was at his Parſonage-houſe, and did read Prayers every Sunday, Wedneſday, Friday, and Saturday; and ſo the whole Court were clear of Opinion, that this Abſence here, as the ſame appeared to be, was not ſuch an Abſence by the ſpace of eighty daies in one year, to avoid his Leaſe within the ſaid Statute, and ſo the Defendants Plea in Barr not good, and therefore by the Rule of the Court Judgment was entered for the Plaintiff.
(17.) An Information was Exhibited againſt Two Parſons by J. S. Mich. 10 Jac. B. R. J. S. againſt Mar…yn and Gunnyſtone. Bluſtr. par. 2.upon the Statute of 21 H. 8. cap. 13. againſt one of them for Non-Reſidency, and againſt the other for taking of a Farm; the one of them pleaded Sickneſs, and that by the Advice of his Phyſicians he removed into better Air, for Recovery of his health; and this is juſtifiable by the whole Court: vid. more for this Coke 6. par. fo. 21. in Butler and Goodall's Caſe. The other pleaded, That he took the Farm for the maintenance of his Houſe and Family: And this alſo is juſtifiable by the Opinion of the whole Court. Crooke moved the Court for the Defendants, That the Plaintiff was a Common Informer, and that he did prefer this Information againſt them, only for their vexation, and ſo to draw them to compound with him, as formerly he hath ſo done by others, for which they proſecuted an Indictment in the Countrey, upon the Statute of 18 Eliz. cap. 5. made to puniſh Common Informers for their Abuſes. The whole Court did adviſe them to proſecute this Indictment againſt him. Crooke moved for the Defendants, That in regard the Informer is a man of no means, that the Court would order him to put in ſufficient Sureties to anſwer Coſts, if the matter went againſt him, and that then the Defendants would preſently anſwer the Information. Williams Juſtice, nullam habemus talem legem, this is not to be done; but the Rule of the Court was, That the Defendants ſhould not anſwer the Information, until the Informer appeared in perſon.
(18.) In an Action of Covenant the Plaintiff in his Declaration ſets forth,Trin. 14 Jac. B. R. Rudge verſ. Thomas. Bulſtr. par. 3. that the Defendant was Parſon of D. and did Covenant, That the Plaintiff ſhould have his Tithes of certain Lands for thirteen years; and that afterwards he Reſigned, and another Parſon Inducted, by which means he was ouſted of his Tithes, and for this cauſe the Action brought. The Defendant pleads in Barr the Statutes of 13 Eliz. cap. 20. and 14 Eliz. cap. 11. for Non-Reſidency, upon which Plea the Plaintiff demurr'd in Law. It was urged for the Plaintiff, That the Plea in Barr was not good, becauſe it is not averred, that the Defendant had been Abſent from his Parſonage by the ſpace of Eighty daies in a year, for otherwiſe the Covenant is not void by the Statutes. For the Defendant it was alledged, That the pleading of the Statute of 13 Eliz. is idle, but by the Statute of 14 Eliz. this Covenant is made void; for by the Statute, all Covenants ſhall be all one with Leaſes, made by ſuch Parſons: And in this caſe, if this had been a Leaſe, this had been clearly void by Surrender of the Parſon; and ſo in caſe of a Covenant. Doderidge and Houghton Juſtices, The Statutes of 13 and 14 Eliz. do not meddle with Aſſurances at the Common Law, nor intended to make any Leaſes void, which were void at the Common Law; and therefore this Covenant here is not made void by the Statute, unleſs he be Abſent Eighty daies from his Parſonage. Coke Chief Juſtice agreed with them herein. They all agreed in this Caſe for the Plaintiff, and that by the Preamble of 14 Eliz. it is ſhewed, the intent of the Statute to be to make Covenants void, within the Proviſion of 13 Eliz. by Abſence for Eighty daies: And Judgment in this Caſe was given for the Plaintiff.