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Subject to trial at law if custom disputed.

Whether

temporal

court.

plainly supposes that the recovery of the money shall be solely in the spiritual court, as the recovery of the mortuary was before (z).

In the case of Johnson v. Oldham, in 12 Will. 3, a prohibition was moved for, to be directed to the spiritual court, to stay a suit there for a mortuary, upon a suggestion of the statute (21 Hen. 8, c. 6), and that there was no custom for the payment of it; and it was urged, that no mortuary was due but by custom, and therefore the custom here being denied, they ought not to proceed in the spiritual court. Against which, it was argued, that the statute has saved the jurisdiction to the spiritual court, where mortuaries have been usually paid; besides, they ought first to plead in the spiritual court, that there is not any such custom; and then, upon refusal to admit the plea there, is the time to move the court of King's Bench, and not before: but here they have not pleaded this matter in the spiritual court. And by Holt, Chief Justice: A prohibition cannot be granted, without a denying of the custom in the spiritual court, which is not done here. And afterwards the rule was discharged by the court (a).

But if the custom be denied, and the spiritual court will not admit that plea, a prohibition will go; and they shall not try the custom there (b).

But where the custom of paying a mortuary was owned, and the only question in the spiritual court was, whether it belonged to the vicar or impropriator, a prohibition in such a case has been denied (c).

In the case of Torrent v. Burley, in 13 Geo. 1 (d), in the recoverable in Exchequer, a bill was brought to discover, whether the defendant's husband died worth 407. so as to be liable to pay the plaintiff a mortuary; and praying relief. Upon answer admitting assets, but denying the custom, the plaintiff went into a proof of his right; and several witnesses were examined on both sides. And at the hearing, the bill was dismissed with costs, as to the relief, because that was properly at law, or in the spiritual court; and, in a bill against one person only, the right could not be established.

Or before justices.

In Manby v. Curtis (e) it was said to be a moot question whether mortuaries can be recovered at law, and whether they must not be sued for in the spiritual court, under the foregoing statute of 21 Hen. 8 c. 6; and that it would be difficult to say that they would be recoverable in a court of equity (f).

In Ayrton v. Abbott it was holden that mortuaries are not within 7 & 8 Will. 3, c. 6, s. 2, which authorizes justices of the

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peace to adjudicate upon complaints of subtraction of small tithes, offerings, oblations and obventions (g).

to defeat

By 13 Eliz. c. 5, all alienations of lands or goods to defraud Fraudulent creditors and others of their just debts, damages, penalties, for- alienations feitures, heriots, mortuaries, and reliefs, shall (as against such mortuaries claimants) be utterly void and of none effect.

void.

mortuaries.

By the first Tithe Commutation Act, 6 & 7 Will. 4, c. 71, As to coms. 90, it is enacted that: "Nothing in this act contained, unless mutation of by special provision to be inserted in some parochial agreement, and specially approved by the commissioners, in which case the same shall be valid, shall extend to any . . . mortuaries."

But by 2 & 3 Vict. c. 62, s. 9, it is enacted that "it shall be lawful at any time before the confirmation of any apportionment after a compulsory award in any parish, for the landowners and titheowners, having such interest in the lands and tithes of such parish as is required for the making of a parochial agreement, to enter into a parochial agreement for the commutation of . mortuaries

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(h).

SECT. 6.-Protection of the Dead.

Funeral expenses, according to the degree and quality of the Funeral deceased, are to be allowed of the goods of the deceased, before charges. any debt or duty whatsoever (i).

The carcase that is buried belongs to no one, but when buried Protection of in consecrated ground is subject to ecclesiastical cognizance, if dead bodies. abused or removed (k); and if not buried in consecrated ground is under the protection of the temporal courts (1). Though, as Lord Coke says, a corpse is nullius in bonis; yet taking up a dead body, though for the purpose of dissection, is an indictable offence at law, as an act highly indecent and contra bonos mores (m). 1 Jac. 1, c. 12, made it felony to steal dead bodies for the purposes of witchcraft, but is repealed by 9 Geo. 2, c. 5.

In the Lent assizes holden at Leicester, in 11 & 12 Jac. 1, the Stealing case was, one William Haynes had digged up the several graves shrouds. of three men and one woman in the night, and had taken their winding sheets from their bodies, and buried them again, and it was resolved by the justices at Serjeants' Inn, in Fleet Street, that the property of the sheets remained the owner's, that is, in him who had the property therein, when the dead body was wrapped therewith, for the dead body was not capable of it, and that the taking thereof was felony (n).

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Bodies not

And a corpse once buried [in consecrated ground] cannot be to be removed taken up or removed without licence from the ordinary (o).

without a

faculty or lawful authority.

20 & 21 Vict. c. 81.

Licence from Secretary of State.

That is, to be buried in another place, or the like: but in the case of a violent death the coroner may take up the body for his inspection if it is interred before he comes to view it.

In the case of The Vestry of St. Pancras v. The Vicar and Churchwardens of the Parish of St. Martin-in-the-Fields (p), it appeared that in 1854 a local act of parliament was obtained to enable the granting of building leases of a certain portion of the cemetery, belonging to the parish of A., which had not previously (it was then supposed) been used for the purposes of interment, and which was particularly described in the schedule annexed to the act. The trustees, under the powers of the act, contracted for the sale of the ground so described in the schedule; but the contractor, on making excavations therein, found some coffins and remains of bodies. In June, 1858, on the representation that these did not exceed twenty in number, a licence or faculty issued from the Consistory Court of London for the removal of such coffins and remains, in order that they might be decently and properly interred in the inclosed part of the cemetery. Subsequently, without any further authority, between 400 and 500 more coffins were disinterred; and it was holden that the vicar and churchwardens, to whom the faculty had been directed, had exceeded the powers confided to them by the ordinary; that they must return the faculty into the registry, be admonished to re-inter decently all the remains that had been disinterred, and to refrain from disturbing the remains of the dead which had been interred in any portion of the cemetery; and that they must pay the costs of the proceedings.

In the case of Sarah Pope (q), a faculty to exhume a body for the purpose of discovering its identity, was granted by the Consistory Court of London.

It was holden in Reg. v. Sharpe (r), that it is a misdemeanor to remove without lawful authority a coffin from a burial ground belonging to Protestant Dissenters, though the object was to bury it in a consecrated churchyard.

By 20 & 21 Vict. c. 81, s. 25, "Except in the cases where a body is removed from one consecrated place of burial to another by faculty granted by the ordinary for that purpose, it shall not be lawful to remove any body, or the remains of any body, which may have been interred in any place of burial without licence under the hand of one of her Majesty's Principal Secretaries of State, and with such precautions as such Secretary of State may prescribe as the condition of such licence; and any person who shall remove such body or remains, contrary to this enactment, or who shall neglect to observe the precautions prescribed as the condition of the licence for removal, shall, on

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summary conviction before any two justices of the peace, forfeit and pay for every such offence a sum not exceeding ten pounds."

A faculty has been refused where the object was that the Whether for body should be taken up and cremated (s).

cremation.

Faculties have been granted for the removal of dead bodies Removal on from churches and churchyards on sanitary grounds (t).

sanitary grounds.

SECT. 7.-Monuments of the Dead.

Lord Coke says, "Concerning the building or erecting of Lord Coke's tombs, sepulchres, or monuments for the deceased in church, opinion. chancel, common chapel, or churchyard, in convenient manner, it is lawful; for it is the last work of charity that can be done for the deceased, who while she lived was a lively temple of the Holy Ghost, with a reverend regard and Christian hope of a joyful resurrection. And the defacing of them is punishable by the common law, as it appeareth in the book of the 9 Edw. 4, c. 14 (the Lady Wiche's Case, wife of Sir Hugh Wiche), and so it was agreed by the whole court, Mich. 10 Jac. 1, in the Common Pleas, between Corven and Pym. And for the defacing thereof, they that build or erect the same shall have the action during their lives (as the Lady Wiche had in the case of the 9 Edw. 4); and after their deceases, the heir of the deceased shall have the action. But the building or erecting of the sepulchre, tomb, or other monument, ought not to be to the hindrance of the celebration of divine service (u).

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And again Lord Coke says, "If a nobleman, knight, esquire, &c., be buried in a church, and have his coat armour and pennions with his arms, and such other ensigns of honour as belong to his degree or order, set up in the church, or if a gravestone or tomb be laid or made, &c., for a monument of him, in this case, albeit the freehold of the church be in the parson, and that these be annexed to the freehold, yet cannot the parson or any take them or deface them, but he is subject to an action to the heir and his heirs in the honour and memory of whose ancestor they were set up" (x).

But Dr. Watson says, this is to be understood of such monu- Dr. Watson. ments only as are set up in the aisles belonging to particular persons, or if they are set up in any other part of the church, he supposes it to be understood that they were placed there with the incumbent's consent (y).

And Dr. Gibson observing thereupon, says thus: "Monu- Dr. Gibson. ments, coat armour, and other ensigns of honour, set up in

(8) Re Dixon, (1892) P. p. 386.

Vicar, &c. of Aldgate v. Parishioners, (1892) P. p. 161; Rector, &c. of St. Helens v. Parishioners, ibid. p. 259; Rector, &c. of St. Mary-at-Hill v. Parishioners, ibid.

p. 394; Rector, &c. of St. Michael
Bassishaw v. Parishioners, (1893)
P. p. 233. Vide supra, p. 664.

(u) 3 Inst. p. 201.
(x) 1 Inst. p. 18.

Wats. c. 39, p. 398.

Palmer v. Bp. of Exeter.

Whether any fee for erecting

monuments.

Monuments

by faculty.

memory of the deceased, may not be removed at the pleasure of the ordinary or incumbent. On the contrary, if either they or any other person shall take away or deface them, the person who set them up, shall have an action against them during his life, and after his death the heir of the deceased shall have the same, who (as they say) is inheritable to arms, &c., as to heirlooms; and it avails not, that they are annexed to the freehold, though that is in the parson. But this, as I conceive, is to be understood with one limitation, If they were first set up with consent of the ordinary; for though (as my Lord Coke says) tombs, sepulchres or monuments may be erected for the deceased in church, chancel, &c., in convenient manner, the ordinary must be allowed the proper judge of that conveniency, inasmuch as such erecting (for so he adds) ought not to be to the hindrance of the celebration of divine service; and if they are erected without consent, and (upon inquiry and inspection) be found to the hindrance of divine service, it will not, I hope, be denied that in such case the ordinary has sufficient authority to decree a removal without any danger of an action at law" (y).

And in Palmer v. The Bishop of Exeter (z), in 10 Geo. 1, it was holden that the ordinary may bring a suit to have monuments set up without his consent removed.

some.

Whether a fee is due to the incumbent for erecting a gravestone or monument in the churchyard has been questioned by It seems to be an argument in favour of the incumbent, that although it is necessary to bury the dead, yet it is not necessary to erect monuments; and after the soil has been broken for interring the dead, the grass will grow again, and continue beneficial in the incumbent; but after the erection of a monument, there ceases to be any further produce of the soil in that place. And if the incumbent's leave is necessary for the erecting a monument, it seems that he may prescribe his own reasonable terms; or if an accustomed fee has been paid, that such custom ought to be observed. In Bardin v. Calcott (a), where the office of the judge was promoted, Lord Stowell said, "Ancient Custom often annexes fees for erecting a stone or anything else by which the grave may be protected and the memory of the person interred preserved. It is no general common law right; but custom will interfere, and where it is shown to be customary such a practice will be supported "(b).

In the same case he said, "As to buildings of height the to be erected authority is reserved to the ordinary, and permission ought not to be granted without his authority in some manner interposed. The proper mode, strictly speaking, is to apply to the ordinary for a faculty, who calls on all persons having a right to show cause why it should not be done, and hears and determines on

(y) Gibs. pp. 453, 454. See also
Degge, pt. 1, c. 12.

(z) Nom. Palmer v. Episcopum
Exon., Stra., p. 576.
(a) 1 Consist. p. 14.

(b) In consecrated grounds provided by burial boards special statutory provision is made for the incumbent's fees by 15 & 16 Vict. c. 85, s. 33. Vide supra, p. 680.

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