$19 Resigna Resignation. FOR general bonds of resignation, see the title Simonp. 1. A resignation is, where a parson, vicar, or other benetion, what. ficed clergyman voluntarily gives up and surrenders his charge and preferment to those from whom he received the same. Deg. p. 1. c. 14. (8) To whom 2. That ordinary who hath the power of institution, hath power to be made. also to accept of a resignation made of the same church to which he may institute; and therefore the respective bishop, or other person who either by patent under him or by privilege or prescription hath the power of institution, are the proper persons to whom a resignation ought to be made. (u) And yet a resignation of a deanry in the king's gift, may be made to the king; as of the deanry of Wells. And some hold, that the resignation may well be made to the king, of a prebend that is no donative: But others on the contrary have held, that a resignation of a prebend ought to be made only to the ordinary of the diocese, and not to the king, as supreme ordinary; because the king is not bound to give notice to the patron (as the ordinary is) of the resignation; nor can the king make a collation by himself without presenting to the bishop, notwithstanding his supremacy. 2 Roll. Abr. 358. Wats. c. 4. [320] Whether it must be And resignation can only be made to a superior: This is a maxim in the temporal law, and is applied by lord Coke to the ecclesiastical law, when he says, that therefore a bishop cannot resign to the dean and chapter (w), but it must be to the metropolitan, from whom he received confirmation and consecration. Gibs. 822. And it must be made to the next immediate superior, and not to the mediate; as of a church presentative to the bishop, and not to the metropolitan. 2 Roll's Abr. 358. But donatives are not resignable to the ordinary; but to the patron, who hath power to admit. Gibs. 822. And if there be two patrons of a donative, and the incumbent resign to one of them, it is good for the whole. Deg. p. 1. c. 14. 3. Regularly, resignation must be made in person, and not by proxy. There is indeed a writ in the register, intitled, litera (t) The word Resignation is not good. 294, (a) n. 6. But there is a note there, contrary. Wats. c. 4. Dyer's Rep. that the judges held the (8) This being his own act, he is not entitled to emblements. Bulwer v. Bulwer, 2 Bar. & Ald. Rep. 471. (u) Ad eum fieri debet renunciatio ad quem spectat confirmatio. Inst. J. C. 1. 19. (w) 1 Roll. Rep. 137. procuratoria ad resignandum, by which the person constituted made in proctor was enabled to do all things necessary to be done in order person. to an exchange; and of these things, resignation was one. And Lindwood supposeth that any resignation may be made by proctor. (x) But, in practice, there is no way (as it seemeth) of resigning, but either to do it by personal appearance before the ordinary, or at least to do it elsewhere before a public notary, by an instrument directed immediately to the ordinary and attested by the said notary; in order to be presented to the ordinary, by such hand as may pray proper his In which case acceptance. the person presenting the instrument to the ordinary doth not resign nomine procuratorio, as proctors do; but only presents the resignation of the person already made. Gibs. 822. Deg. p. 1. c. 14. Wats. c. 4. (y) absolute 4. A collateral condition [a. g. to present any one] may not Must be be annexed to the resignation; no more than an ordinary may and not admit upon condition, or a judgment be confessed upon condition, conditional which are judicial acts. Wats. c. 4. For the words of resignation have always been purè, spontè, absolutè et simplicitèr, 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. Gibs. 821. (z) (x) And herewith the canon law agrees. Inst. J. C. 1.9. (y) Heyes v. Exeter College, Oxford. In this case the defendant Vye, by an instrument in the usual form, attested by a notary public, and directed to the bishop of Exeter, expressed his resignation of the vicarage of Merthoe in the county of Devon, and two other notaries public were constituted by him as his proctors to exhibit the same to the bishop. The instrument was sent by the post to the bishop, who merely endorsed it, and signed a memorandum of his acceptance of the resignation. [This is not a public and judicial, but a domestic act, requiring no registration, and satisfies the qualification in the grant of a living that the person to be presented should not at such time as the church should be void "be presented, insti"tuted, or inducted into any other living."] 12 Ves. 336. (z) If two parsons obtain licence from the ordinary to exchange their benefices, the exchange must be fully executed by both parties Must be accepted by the proper 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 bishoprick, 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 suspended 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 ordinary. 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. (9) 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 he will not ordain. Gibs. 822. 1 Still. 334. (1) Lindwood makes a distinction in this case, between a cure of souls, and a sine-cure. The resignation of a sine-cure, he thinks, is good immediately, without the superior's consent; because during their lives, otherwise all proceedings are void. See Reg. f. 306. B. 2 Rep. 74. b. Hob. 152. 3 Wils. 495. [and tit. Glebe Lands.] (9) Thus a presentation by the king before such acceptance was held void. Fane v. -, Cro. Car. 197. (1) Though it seems clear that the bishop may refuse to accept a resignation, on sufficient cause for refusal, it is undecided, 1. Whether he can at pleasure and without cause refuse to accept any resignation: 2. Who shall finally judge of the sufficiency of the cause: and, 3. By what mode he may be compelled to accept. In the case of the Bishop of London v. Ffytche, a question was proposed to the judges, Whether the ordinary is bound to accept a resignation. To which most of them answered, that this being an entirely new case, and not made a question of in the courts below, or ever argued at the bar of the Lords, they begged leave for the present to decline answering it. One, however, thought he was compellable by mandamus, if he did not shew sufficient cause: Lord Thurlow seemed to be of opinion he could not be compelled, particularly by mandamus, from which there is no appeal or writ of error. Another judge observed, that if he could not be compelled, he might prevent any incumbent from accepting an Irish bishopric, as no one can take that till he has resigned all his benefices in England. 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. Gibs. 823. Thus in the case of the marchioness of Rockingham and Griffith, Mar. 22, 1755. (a) 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 [322] 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 Heskett and Grey, H. 28 G. 2. 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 (b). 6. After acceptance of the resignation, lapse shall not run From wha but from the time of notice given: It is true, the church is void time lapse (a) S. C. 4 Bac. Abr. 472. (b) See Simony, II. 1. Whether the ordinary may refuse to accept a resignation without assigning any cause, or whether in such case he may be compelled to assign a sufficient cause, is undecided. See note (1). in last page. after resig- immediately upon acceptance, and the patron may present if he nation shall please; but as to lapse, the general rule that is here laid down, incur. 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 spiritualties, or by the succeeding bishop; with whom the act of resignation is presumed to remain. Gibs. 823. [323] 7. By the 31 El. c. 6. If any incumbent of any benefice Corrupt re- with cure of souls, shall corruptly resign the same; or corsignation. ruptly 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. § 8. Any pension] Before this statute, the bishop in cases of resignation might and did frequently, assign a pension during life, out of the benefice resigned, to the person resigning. Gibs. 822. And by the statute of the 26 H. 8. c. 3. intitled, an act for the payment of first fruits and tenths, it was enacted, that incumbents charged with pensions payable to their predecessors during their lives, should deduct the tenth part thereof out of such payment, inasmuch as they were charged by the said act to pay the tenths of their whole living unto the king. And by the same act it was provided, that no pension thereafter should be assigned by the ordinary, or by any other manner of agreement by collateral security or otherwise, upon any resignation of any dignity, benefice or promotion spiritual, above the value of the third part of the dignity, benefice, or promotion spiritually resigned. But now by the aforesaid act of 31 El. no pensions whatsoever can be reserved. See Pension. Respond, RESPOND was a short anthem sung, after reading three or Restoration of King Charles the Second. See Holidays. |