Q B.]

REG. v. TWISS.

burial ground set apart and duly consecrated for the use of the parishioners of the said parish.

The person on whose behalf this rule was applied for and obtained was not an inhabitant or a ratepayer of the parish of St. Leonard's, Shoreditch. About the middle of last century a piece of land which belonged to certain persons in the parish of St. Leonard's, Shoreditch, was vested in certain trustees; and in the year 1778 was consecrated by the then Bishop of London as a burial ground for the parish.

By an Act of 21 and 22 Vict. c. cxxxii., a board of guardians was established for the poor of the parish of St. Leonard's, Shoreditch, and (except as therein otherwise expressly provided) all the estates, lands, buildings, property, moneys, choses in action, &c., of which the trustees were seised, possessed, or in any way entitled at law or in equity, or otherwise howsoever, with the appurtenances, and not by that Act vested in the charity trustees, were transferred to and vested in the board of guardians according to the tenure, nature, and quality thereof respectively. Sect. 31 enabled the board from time to time to maintain, or, with the order or consent of the Poor Law Board, to take down, alter, rebuild, enlarge and repair all or any part of the then | present or any future workhouse of the parish, and to hire, enlarge, or repair any other house for the reception of the poor of the parish; and in order thereto, by agreement to purchase or take on lease any lands in the parish.

By an Order in Council dated 7th Jan. 1865, burials were ordered to be discontinued in the churchyard. No person had in fact been buried there for the previous forty years. No tombstones, mounds, or other external marks of previous burials had ever been erected, and divers buildings, consisting of cottages, outhouses, and other premises, had, from time to time, during those forty years been inadvertently erected upon portions of the churchyard. In the same year it having become necessary to build a new and larger workhouse under the authority of the Poor Law Board the guardians entered into a contract for that purpose, and the workhouse was erected, part of it being on a portion of the old consecrated ground in which no corpses had been buried. The guardians would appear not to have been aware of this fact until the workhouse was completed, when they applied by petition in the ordinary form to the Consistory Court for a faculty to use a portion of the consecrated ground for the purposes mentioned in the petition. namely, a portion for the workhouse itself and the rest for a chapel for the inmates of the workhouse. On the petition coming before the Consistory Court the Charity Trustees appeared and claimed that by virtue of several Acts of Parliament, and dealings with the property, the soil in the churchyard was in them, and not in the board of guardians, and they applied for an inhibition to the guardians from further proceeding to get the faculty. When that question came on to be argued, the judge of the Consistory Court decided that he had no jurisdiction to enter into the question of right, and refused the inhibition.

The argument of the rule nisi stood over from | time to time for various reasons, and now at length the matter came before the court for final adjudication; it being agreed between the parties that the only question for argument should be whether the Consistory Court had jurisdiction to grant such a faculty as was sought to be obtained from it by the board of guardians.

Amongst the documents made use of on the argument, was an affidavit made by Mr. Wm. Tarn Pritchard, proctor, of Doctors' Commons, to the effect that he had searched the records in the registry of the Diocesan Court of London, and had

[Q. B. found from those records that faculties or licences had been issued under the seal of the court in the following cases: On the 27th May, 1851, for the erection of a vestry room on the churchyard of the parish of St. Mary Abbotts, Kensington; for confirming the removal (which had taken place shortly prior to the grant of the faculty), of certain monumental tablets and gravestones, and for removing certain further tablets and gravestones in the churchyard; on the 14th March, 1859, for erecting on a part of the churchyard of the parish of St. Botolph, Bishopsgate, an infant school for that parish, and a dwarf brick-wall to enclose the school; on the 18th June, 1859, for the levelling, laying out, and planting as ornamental ground, of the churchyard of the parish of Christchurch, Spitalfields; on the 29th Nov. 1859, for authorising the use of a burial ground formerly used for the interment of the paupers of the parish of St. Luke, Old-street, in the county of Middlesex, as an addition to the airing court for the male inmates of St. Luke's Hospital for lunatics in that parish; on the 14th May, 1860, for confirming the erection (which had taken place without a faculty), of a national school on the churchyard belonging to the parish of St. Matthew, Bethnal-green; on the 9th Oct. 1869, for the erection of parochial schoolrooms for boys and girls, with class rooms and other necessary offices on a portion of the churchyard of the parish of St. Sepulchre, in the City of London; on the 20th March 1861, for removing the then existing vestry room, and building in lieu thereof a new and enlarged vestry room upon the same site, and upon a portion of the churchyard of the parish of St. James, Westminister; for excavating for that purpose a portion of the said churchyard, and removing certain coffins and remains therein interred; for converting a vault in the said churchyard into a muniment room for the records of the said parish, and for laying flat the upright head and foot stones, and lowering box tombs in the said churchyard, and for laying out the said churchyard in an ornamental manner; on the 8th June 1864, for the erection of national schools for the children of the poor of the parish of Christchurch, Newgate-street, upon certain ground, including part of a piece of ground called the lower burial ground, belonging to the said parish.

W. T. Barnard, Tayer, and Dr. Pritchard now showed cause against the rule.-This matter is exclusively one for the cognisance of the Ecclesiastical Court; it has jurisdiction to deal with consecrated ground, provided secular rights are not interfered with, and the question whether such rights are interfered with is also for its determination. There is no example of this court granting a prohibition in a case like the present. The case of The Rector &c., of Saint George Hanover Square v. Stewart, 2 Strange, 1126, relied on by the other side in moving for the rule, is not inconsistent with this power to deal with consecrated ground; for there the prohibition to erect a charity school on a portion of the churchyard was granted partly on the ground that the Ecclesiastical Court cannot compel the rector and parishioners "without their consent." In that case an attempt was made to deal with the freehold without the consent of the owners; that is not so in the present case. Neither does any question arise here as that which was decided in Pew v. Cresswell, Ib., 1013, viz., that though the interrupting the use of a churchyard as a churchyard, is properly cognisable in the Ecclesiastical Court, yet the bounds of it, which is matter of freehold, ought not to be determined there. In Walter v. Montague, 1 Cur. 261, where a question arose as to making a new footpath across a churchyard, Dr. Lushington says as to the jurisdiction of the Consistory Court, "The churchyard being conse

Q. B.]

REG. v. TWISS.

[Q. B.

crated ground, this court has cognisance of the Square v. Stewart supports this. In The Rector and matter, and it is my duty to protect it against Churchwardens of Saint John, Walbrook v. The any unauthorised or illegal invasion whatever." Parishioners thereof, 2 Rob. 517, Dr. Lushington, If there is anything properly of ecclesiastical cog- in giving judgment, says: “I well remember that nisance in the subject matter of the faculty this an application was made to Sir Wm. Wynne, when court will not interfere by prohibition, but will pre- judge of the Arches Court, to grant a faculty for sume that the Consistory Court will not exceed the converting a part of the churchyard at Ewell in limits of its jurisdiction. In Hallack v. University of Surrey, into the public road requiring to be widened; Cambridge, 1 Q. B. 593, it was held that a prohibition and that learned judge refused the motion, stating to the Arches Court did not lie, where several dis- that nothing short of an Act of Parliament could tinct things were comprised in the faculty, some of enable him to accede to the prayer," the reason which might be granted consistently with common being, according to the reporter, "that a sentence law, though others might not. At p. 614, Lord of consecration is definitive." The same learned Denman, C. J., says: "It appears that the faculty judge says, in Campbell v. The Parishioners, &c. of prayed for has two objects. First, the confirming Paddington (sup.), "The Court is at all times realterations in the Church made by the university luctant to refuse an application which has reby agreement with the parishioners; and secondly, ceived the assent of the parishioners and the patron the appropriating the extensions to the members of of the living, who in this instance is the bishop of the university. It is not pretended that the grant- the diocese; but the court is, nevertheless, bound to ing a faculty as to alterations in a church, and as recollect the limits of its own power and authority. to the distribution of seats in general, is not matter When ground is once consecrated, no judge has of ecclesiastical cognisance; neither is it pretended power to grant a faculty to sanction the use of such that there is anything objectionable in the faculty ground for secular purposes." Again, in Harper v. now prayed for, so far as the first object of it goes. Forbes, 5 Jur. N. 8, 275, "I may at once declare The whole objection rests upon the second object what I believe to be undoubted law, that it is not ... and therefore this court is called upon to pro- in the power of any Ecclesiastical Court whatever to hibit the Ecclesiastical Court from entertaining the allow any portion of consecrated ground to be suit for the faculty altogether. This is obviously devoted to secular uses, or to grant a faculty premature. This court has no power to prohibit to confirm such an appropriation;" and in similar the Ecclesiastical Court from granting a faculty to language the old books speak of the perpetually confirm the alterations which have been made; inviolable character of ground once consecrated the suit, therefore, must proceed quoad them, in for the purposes of Christian burial. "The order that the Ecclesiastical Court, within whose parishioners," says Coke, 2 Inst. 489, "ought to proper jurisdiction that matter is, may deter- repair the inclosure of the churchyard, because the mine whether the faculty shall be granted or bodies of the more common sort are buried there, not. With respect to the other object of the and for the preservation of the burials of those that faculty, assuming, for the sake of the argument, were, or should have been whiles they lived, the that the extensions cannot be legally appropriated temples of the Holy Ghost: and cœmeterium is deas prayed, and also assuming that a prohibition rived of the Greek verb xoμaw, that is, dormio, and will lie in respect of an application ex gratia for therefore cœmeterium est quasi dormitorium quia mortui a faculty before it is granted (which is by no domire dicuntur usque ad resurrectionem, &c." So, in means a clear point), still we are not to presume the form of consecrating a churchyard, given in the that the Ecclesistical Court will not take care to App. to 2 Gibson's Cod.: "Idcirco, nos Johannes limit the faculty (if any be granted) to those archiepiscopus antedictus, authoritate quà fungimur objects which may be legally embraced in it." This in hâc parte, quantum in nobis est, ac de jure et reason for refusing a prohibition applies here, statutis hujus regni Angliæ possumus, decernimus because it is clearly within the competence of the quod imposterum perpetuis futuris temporibus omnes Consistory Court to grant a faculty for the building et singuli qui posthac infra dictam parochiam Sancti of the chapel, at any rate, on part of the consecrated Thomæ in Le Clive prædict' decedere, et ab hâc luce ground. In Campbell v. The Parishioners, &c., of Pad-migrare contigerint, infra dictum vacuum locum, &c., dington, 2 Rob. 558, a faculty was granted for the per parochianos et inhabitantes ibidem pro sepulerection of a vestry room on consecrated ground, turæ loco (ut præmittitur) comparat' sepelientur et Dr. Lushington observing that "a charity school is inhumabuntur: et quod dictus vacuus locus sive purely secular; but a vestry room is of rather a solum pro cœmeterio et loco sepulturæ dictorum different character-a vestry room is employed for parochianorum et inhabitantium perpetuis futuris ecclesiastical as well as secular uses." A further temporibus habeantur, ac omnibus et singulis priviground of objection to the application for a pro- legiis, loco religioso ac publicæ et Christianæ sepulhibition is that the promoter of the present oppo- turæ destinato debitis, munitum censeatur; quem quisition to the granting of a faculty is not a parishioner dem locum in cœmeterium et Christianæ sepulturæ of Shoreditch, or a person in any way personally in omne ævum duraturum tenore præsentium facimus, interested in the matter, but an entire stranger; constituimus et ordinamus," &c.: (1 Burn's Eccl. and the court will not interfere in such a case on Law, 323, also referred to, and the form of consethe application of a mere stranger. Finally, all that cration given in p. 333.) As to the argument that is now sought to be obtained by the faculty asked no precedents are to be found in the reports or old for is an immunity from ecclesiastical censures for books for prohibitions in cases like the present, the what has already been done. The practice disclosed answer is that such was the reverence paid in olden by the affidavit of Mr. W. T. Pritchard, as above times to ground once consecrated that the interferreferred to, was also relied on in support of the juris-ence of the court to prevent a desecration was not diction of the Consistory Court to grant a faculty in the present case.

The Solicitor General (Sir J. D. Coleridge) in support of the rule. It is not within the competence of any Ecclesiastical Court to alter a definitive sentence of the ecclesiastical authority recognised by the common law of the land, by which a portion of ground has been consecrated for the purposes of burial. The Rector, &c. of Saint George Hanover

needed.

COCKBURN, C. J.-I am of opinion that under all the circumstances of this case the rule must be discharged. At the same time I do not hesitate to express a very decided opinion that the doctrine laid down by Dr. Lushington in the case of The Rector and Churchwardens of Saint John Walbrook v. The Parishioners thereof (sup.) is perfectly correct, namely, that ground once consecrated for the

purposes of burial cannot, by any authority known in this country, short of an Act of Parliament, be divested of its sacred character, so as to become applicable to secular purposes. I think there is authority enough in the cases cited to affirm that as a general rule. But my reason for coming to the conclusion that the rule in the present instance must be discharged, rests on a much narrower ground. In the first place our attention has been called to the fact of the different purposes to which the consecrated ground is to be applied, or rather has been devoted already, the effect of the licence or faculty being only to give immunity from possible ecclesiastical censures for what has been done. The faculty has reference to different and separate matters. One of these is the erection of a chapel for the inmates of the workhouse, and I think the distinction made by Dr. Lushington between purposes of a secular and a sacred character may well be applied to this case; and we may well consider that though the faculty applied for with reference to the erection of a school, is not such as the Ecclesiastical Court could grant, yet the erection of a chapel is a purpose to which the consecrated ground might be applied. Now the case of Halluck v. The University of Cambridge (ubi supra) is an authority for saying that where the proceedings before an inferior court have reference to various purposes, some of which are within the competence of that court whilst others are not, this court ought not in the first instance to presume that the inferior court will go beyond its competency and jurisdiction. That case is, I think, in point, and is consistent with sound sense. If the whole matter before the inferior court is beyond its jurisdiction, then a prohibition ought to go; but if the proceeding before it is one as to part of which it has jurisdiction, and as to part not, we ought not to presume that it will go beyond its jurisdiction; as a prohibition may be applied for here after sentence as well as before. If the inferior court acts in excess of its jurisdiction, there is nothing to prevent the parties coming here after sentence. There is, in the last place, another ground why I think the rule in the present case ought to be discharged, and that is the consideration which has frequently been taken into account in this court, and is much insisted on by my Brother Blackburn, in Re Forster, 4 B. & S. 203, namely, that our interference is asked for here by an entire stranger, by one who does not appear to be a parishioner of Shoreditch, or in any manner interested in this matter, and who comes forward, I suppose, merely in order to try the abstract question whether a churchyard once consecrated as such can, without the authority of an Act of Parliament, be converted to purposes of a secular nature. I am in hopes that as to that what has been now said by the court following the case in Strange, and the decision of one of the first lawyers that ever sat in a court of justice, Dr. Lushington, that such a thing cannot be done; that you cannot remove the bodies of the dead and divest the consecrated ground of its sacred character without the authority of an Act of Parliament, will be considered sufficient to satisfy those persons who very naturally entertain strong feelings on this subject. Looking at all the circumstances of this case, seeing that the thing has been done, that there has been no intention to violate the law or to outrage the feelings of individuals, that the faculty is only asked for to indemnify against future possible consequences, and that the applicant for a prohibition is a stranger, I think a prohibition ought not to be granted, and that the rule must be discharged.

HANNEN and HAYES, JJ., concurred.

Rule discharged. *torneys: Mills and Lockyer; Henry Child.

Thursday, May 6, 1869.

DOUST v. SLATER.

[Q. B.

Notice of action-Metropolis Local Management Acts
Amendment Act (25 & 26 Vict. e. 102), s. 106-
Trespass to land in constructing sewers under order
from Board of Works.

The

defendant in constructing certain sewage drains, having received a notice to do so from the Metropolitan Board of Works, committed a trespass on the plaintiff's land to which he believed he had a title : Held, that the defendant did not come within the meaning of sect. 106 of 25 & 26 Vict. c. 102, which requires notice of action in case of proceedings against “the Metropolitan Board of Works, or any vestry or district board, or their clerk, or any clerks, surveyor, contractor, officer, or person whomsoever, acting under their or any of their directions, for anything done or intended to be done under the power of such board or vestry."

Action for breaking and entering on certain land of the plaintiff, driving into it divers posts, poles, and other wooden materials, and constructing upon it divers pipes, drains, and cesspools for carrying off the rain and sewage from certain premises adjoining, &c.

Plea, not guilty by stat. 18 & 19 Vict. c. 120, ss. 69, 73; 25 & 26 Vict. c. 102, s. 106. Issue thereon.

At the trial, which took place before Cockburn, C.J., and a common jury, at Maidstone, on the 10th March 1868, it appeared that the plaintiff kept a public-house, called the Pilot, in High-street, Deptford, at the back of which was a garden. The defendant is a painter and glazier in the same town, and the lessee of a number of houses in the same street, under a lease from the mayor and commonalty of the City of London. The defendant, in having certain drains to his houses, constructed under the requirements of the Board of Works (a notice from the clerk of the Board of Works to drain them having been sent to him), was guilty of a trespass on the garden of the plaintiff, to which garden the defendant, it seems, believed he had a right, and for this trespass the action was brought. The jury returned a verdict for the plaintiff, damages one shilling, leave being given to the defendant to prove to enter a nonsuit.

In Easter Term 1868 Daly obtained a rule nisi, calling on the plaiutiff to show cause why the verdict obtained in the cause should not be set aside, and a nonsuit entered instead thereof, on the ground that the defendant was entitled to notice of action under 18 & 19 Vict. c. 120, ss. 69 and 73, and 25 & 26 Vict. c. 102, s. 106.

Sect. 73 of 18 & 19 Vict. c. 120 (the Metropolis Local Management Act 1855) enacts that

If any house or building, whether built before or after the commencement of this Act, situate within any such parish or district, be found not to be drained by a sufficient into the same, to the satisfaction of the vestry or board of drain communicating with some sewer, and emptying itself such parish or district, and if a sewer of sufficient size be within one hundred feet of any part of such house or building, on a lower level than such house or building, it shall be lawful for the vestry or board at their discretion, by notice in writing, to require the owner of such house or building forthwith, or within such reasonable time as may be appointed by the vestry or board, to construct and make from such house or building into any such sewer, a covered drain and such branches thereto of such materials, of such size, at such level and with such fall, as shall be adequate for the drainage of such house or building, and its several

floors or stories, and also of its areas, water-closets, privies, and offices (if any), and for conveying the soil, drainage, and wash therefrom, into the said sewer, and to provide fit and proper paved or impermeable sloped surfaces for conveying surface water thereto, and fit and proper sinks, and fit and proper syphoned or otherwise trapped inlets and outlets for hindering stench therefrom, and it and proper water supply and water-supplying pipes, cisterns,

and apparatus for scouring the same, and for causing the same to convey away the soil, and fit and proper sand traps, expanding inlets and other apparatus for hindering the entry of improper substances therein, and all other such fit and proper works and arrangements as may appear to the vestry or board, or to their officers, requisite to secure the safe and proper working of the said drain, and to prevent the same from obstructing or otherwise injuring or impeding the action of the sewer to which it leads; and it shall be lawful for the said vestry or board to cause the said works to be inspected while in progress, and from time to time during their execution to order such reasonable alterations therein, additions thereto, and abandonment of part or parts thereof as may to the vestry or board or their officers appear, on the fuller knowledge afforded by the opening of the ground requisite to secure the complete and perfect working of such works; and if the owner of such house or building neglect or refuse during twenty-eight days after the said notice has been delivered to such owner, or left at such house or building, to begin to construct such drain and other works aforesaid, or any of them, or thereafter fail to carry them on and complete them with all reasonable despatch, it shall be lawful for the vestry or board to cause the same to be constructed and made, and to recover the expenses to be incurred thereby from such owner in the manner hereinafter provided.

Sect. 106 of 25 & 26 Vict. c. 102 (the Metropolis Local Management Acts Amendment Act, which is to be construed as one with the previous Act) pro

vides that

"No writ or process shall be sued out against or served upon, and no proceeding shall be instituted against the Metropolitan Board of Works, or any vestry or district board, or their clerk, or any clerk, surveyor, contractor, officer, or person chomsoever acting under their or any of their directions, for anything done or intended to be done under the powers of such board or vestry under the said Acts or this Act, until the expiration of one calendar month next after notice in writing shall have been served upon such board or vestry, or where the action or proceeding shall be against such officer or other person acting under their or any of their directions, shall have been delivered to him or left at his office or place of abode, stating the cause of action or grounds of the proceeding or demand, and the name and place of abode of the intended plaintiff or claimant, and of his attorney or agent in the cause or proceeding; and upon the trial of any action, the plaintiff shall not be permitted to go into evidence of any cause of action, except such as is stated in the notice so served or delivered, and, unless such notice be proved, the jury shall find for the defendant,

&c."

[Q. B.

person whomsoever," in sect. 106 of 25 & 26 Vict c. 102.

Edmund Thomas in support of the rule. The defendant in the present case had a statutable duty cast upon him, and he was acting in performance of it when the trespass was committed. Where a contractor employed by the Board of Works to enlarge a sewer running into a tidal creek, erected a dam in the sewer, the water above which was removed by pumping, and owing to his negligence in not working the pumps, the sewage flowed back into the plaintiff's premises and injured them, it was held, in Poulsum v. Thirst (L. Rep. 2 C. P. 449; 8 L. T. Rep. N. S. 324), that the injury was occasioned by acts" done, or intended to be done," under the powers of the Metropolitan Board of Works, within the meaning of sect. 106 of 25 & 26 Vict. c. 102, and that the defendant was entitled to notice of action. [LUSH, J.-But the defendant in that case was a contractor, and therefore came within the express words of the section.] M. Smith, J., says, "it is not necessary that the act should be done under the immediate direction of the Board of Works; if it is done by a person in the course of fulfilling a contract into which he has entered for the purpose of carrying out the objects of the board, it is sufficient." The defendant in the present case was acting under the express directions of the board contained in a notice to drain, and therefore may be said to have been acting "under the powers of" the board within the meaning of the Act; and, if so, he was entitled to notice of action. [LUSH, J.-If he had drained without an order from the board to do so, he would still be acting under the statute; and what difference is there between that case and the present ?]

COCKBURN, C. J.-The defendant was not acting under the orders of the Board of Works in committing the trespass, which is the ground of

LUSH and HAYES, JJ. concurred.

Rule disc ar jed.

Attorney for plaintiff, E. C. Morley.
Attorney for defendant, H. Harris.

action in this case; neither was he acting by their Warton now showed cause against the rule, and authority at all, but simply in performance of a contended that notice of action was not neces- duty imposed on him by the Act of Parliament, sary under the circumstances of this case. In which, if he did not perform, the board are emWilliams v. Golding, L. Rep. 1 C. P. 69, on the con- powered to call on him to discharge. Such an act struction of a similar section (sect. 108) in 18 & 19 does not come within the meaning of the statute. Vict. c. 122, which rendered necessary notice of What was intended by it is something done by action in case of proceedings against "any district virtue of the powers vested in the board and done surveyor or other person for anything done or in- under their authority. tended to be done under the provisions of the Act" it was decided that a person employed by a building owner to erect a building adjoining the house of another was not an "other person "within the meaning of the section. Erle, C. J., said: "I think some limitation must be put upon those words. The statute clearly was not intended to protect every person who, meaning to do something under the Building Act, might be guilty of a wrong to his neighbour. I come to that conclusion because I find that there were several previous statutes in which this sort of protection was given to every person acting in pursuance of their provisions; whereas here the protection is confined to any district surveyor or other person,' which, to my mind, shows that it was intended to restrict it to a class of persons ejusdem generis with the district surveyor, and that a tradesman who is employed by a building owner in doing work on his own premises for the better enjoyment of them, and upon whom no duty is cast by the statute, is not an 'other person' of the same class as the district surveyor. I think that class was intended to embrace only those who are clothed with an official character, or upon whom some statutable duty is cast, so that they may be said to be acting or intending to act in pursuance of the statute." The same construction must, for similar reasons, be given to the word, "or

Wednesday, April 21, 1869. GRIFFITHS (app.) v. PLACE (resp.) Weights and measures-Store, place, &c., where goods are sold, or weighed for conveyance-Farmer's barn5 & 6 Will. 4, c. 63, s. 28.

ppellant, a farmer, had in his barn or outhouse a balance or portable weighing-machine and two iron weights, which were found by the inspector of weights and measures to be light. The inspector saw no produce about the appellant's premises, and could not prove that he exposed or kept for sale, or weighed for conveyance or carriage, any goods or produce. Appellant having been convicted by justices under sect. 28 of 5 & 6 Will. 4, c. 63: Held, on α

wrong.

case stated, that the conviction was

Case stated by justices under 20 & 21 Vict. c. 43.
This is a case stated by two of Her Majesty's