A church dictionary

by Walter Farquhar Hook

For the words of resignation have always been, pure, sponte, absolute, et simpliciter; to exclude all indirect bargains, not only for money, but for other considerations. And therefore, in Gayton’s case, E. 24 Eliz., where the resignation was to the use of two persons therein named, and further limited with this condition, that if one of the two was not admitted to the benefice resigned within six months, the resignation should be void and of none effect; such resignation, by reason of the condition, was declared to be absolutely void.—God. 277. Gibs. 821. 1 Still. 334.

But where the resignation is made for the sake of exchange only, there it admits of this condition, viz. if the exchange shall take full effect, and not otherwise; as appears by the form of resignation, which is in the register.—Gibson, 821.

By a constitution of Othobon: Whereas sometimes a man resigneth his benefices that he may obtain a vacant see; and bargaineth with the collator, that if he be not elected to the bishopric, he shall have his benefices again; we do decree, that they shall not be restored to him, but shall be conferred upon others, as lawfully void. And if they be restored to him, the same shall be of no effect; and he who shall so restore him, after they have been resigned into his hands, or shall institute the resigner into them again, if he is a bishop, he shall be supended from the use of his dalmatic and pontificals; and if he is an inferior prelate, he shall be suspended from his office until he shall think fit to revoke the same.—Athon, 134.

5. No resignation can be valid till accepted by the proper ordinary; that is, no person appointed to a cure of souls can quit that cure, or discharge himself of it, but upon good motives, to be approved by the superior who committed it to him; for it may be he would quit it for money, or to live idly, or the like. And this is the law temporal, as well as spiritual; as appears by that plain resolution which hath been given, that all presentations made to benefices resigned, before such acceptance, are void. And there is no pretence to say, that the ordinary is obliged to accept; since the law hath appointed no known remedy if he will not accept, any more than if he will not ordain.—Gibs. 822. 1 Still. 334.

Lyndwood makes a distinction in this case, between a cure of souls and a sinecure. The resignation of a sinecure, he thinks, is good immediately, without the superior’s consent; because none but he that resigneth hath interest in that case. But where there is a cure of souls it is otherwise; because not he only hath interest but others also unto whom he is bound to preach the word of God; wherefore in this case it is necessary, that there be the ratification of the bishop, or of such other person as hath power by right or custom to admit such resignation.—Gibson, 823.

Thus in the case of the Marchioness of Rockingham and Griffith, Mar. 22, 1755, Dr. Griffith being possessed of the two rectories of Leythley and Thurnsco, in order that he might be capacitated to accept another living which became vacant, to wit, the rectory of Handsworth, executed an instrument of resignation of the rectory of Leythley aforesaid, before a notary public, which was tendered to and left with the archbishop of York, the ordinary of the place within which Leythley is situate. It was objected, that here doth not appear to have been any acceptance of the resignation by the archbishop, and that without his acceptance the said rectory of Leythley could not become void. And it was held by the lord chancellor clearly, that the ordinary’s acceptance of the resignation is absolutely necessary to make an avoidance. But whether in this case there was a proper resignation and acceptance thereof, he reserved for further consideration; and in the mean time recommended it to the archbishop, to produce the resignation in court. Afterwards, on the 17th of April, 1755, the cause came on again to be heard, and the resignation was then produced. But the counsel for the executors of the late marquis declaring that they did not intend to make any further opposition, the lord chancellor gave no opinion upon the resignation, or the effect of it; but in the course of the former argument he held, that the acceptance of a resignation by the ordinary is necessary to make it effectual, and that it is in the power of the ordinary to accept or refuse a resignation.

And in the case of Hesket and Grey, H. 28 Geo. II., where a general bond of resignation was put in suit, and the defendant pleaded that he offered to resign, but the ordinary would not accept the resignation; the court of King’s Bench were unanimously of opinion, that the ordinary is a judicial officer, and is intrusted with a judicial power to accept or refuse a resignation as he thinks proper; and judgment was given for the plaintiff.

6. After acceptance of the resignation, lapse shall not run but from the time of notice given: it is true the church is void immediately upon acceptance, and the patron may present if he please; but as to lapse, the general rule that is here laid down is the unanimous doctrine of all the books. Insomuch that if the bishop who accepted the resignation dies before notice given, the six months shall not commence till notice is given, by the guardian of the spiritualities, or by the succeeding bishop; with whom the act of resignation is presumed to remain.—Gibson, 823.

7. By the 31 Eliz. c. 6, s. 8. If any incumbent of any benefice with cure of souls shall corruptly resign the same; or corruptly take for or in respect of the resigning the same, directly or indirectly, any pension, sum of money, or other benefit whatsoever, as well the giver as the taker of any such pension, sum of money, or other benefit corruptly, shall lose double the value of the sum so given, taken, or had; half to the queen, and half to him that shall sue for the same in any of her Majesty’s courts of record.—Abridged from Burn.

On the subject of general bonds of resignation, see Simony.