358

1862.

V.

Overseers of
WALCOT.

Further, neither of the ecclesiastical parishes into The QUEEN which the original parish was divided had power to form a separate Burial Board for itself. Under stats. 18 & 19 Vict. c. 128 .s. 12. and 20 & 21 Vict. c. 81. s. 5. districts not separately maintaining their own poor have the power of appointing a Burial Board; but there is nothing in those Acts to take away the power of the original parish to appoint one. [He referred to sect. 35 of stat. 15 & 16 Vict. c. 85.] Although it is not alleged in the writ, the Burial Board was in fact appointed before the passing of stat. 23 & 24 Vict. c. 64., so that sect. 4, which provides that where a parish has been divided into Districts for ecclesiastical purposes, and one of them has a separate burial ground, the entire parish shall not appoint a Burial Board without the approval of one of the Secretaries of State, does not apply. That enactment however assumes that, notwithstanding such division, the entire parish had the power of appointing a Burial Board.

Montague Smith (Kingdon with him).- Where a parish is divided into distinct and separate parishes for ecclesiastical purposes under sect. 16 of stat. 58 G. 3. c. 45., it is enacted, by sect. 24, that the churches assigned to such districts shall be the District parish churches of such District parishes "for all purposes of ecclesiastical worship and performance of ecclesiastical duties, and as to all marriages, christenings, churchings and burials, and the registering thereof respectively within the same, and in relation to all fees, oblations and offerings;" and, by sect. 27, "that all Acts of Parliament, laws and customs relating to publishing banns of marriage, marriages, christenings, churchings and burials, and the

registering thereof, and to all ecclesiastical fees, oblations or offerings, shall apply to such separate and distinct parishes and District parishes so made as aforesaid" &c. Sect. 33 enables the Commissioners to accept sites for building churches and providing churchyards for new District parishes. These sections shew that the division of the parish applies to burials as well as other purposes more strictly ecclesiastical. [Cockburn C. J. I never heard that a parishioner was denied his right to burial in the old parish burial ground because he resided in a new District parish. Crompton J. Would a house having a faculty for a pew in the old parish church lose it when, by the division of the parish, it ceased to be in the old parish?] A prescription for such a pew would no longer be good. [Cockburn C. J. Is not burial a secular as well as an ecclesiastical right? The Legislature treats it as a secular matter, because it gives to the vestry the power of determining whether a new burial ground shall be provided. Mellor J. The sanitary objects contemplated by the Burial Acts to a great extent supersede the ecclesiastical. Crompton J. Burial cannot be called wholly an ecclesiastical matter when a wall or fence is erected between the consecrated and the unconsecrated parts of the burial ground, the one for members of the church and the other for dissenters.] The definition of the word "parish" in sect. 52 of stat. 15 & 16 Vict. c. 85. does not exclude a parish which does not separately maintain its own poor; Regina v. The Sudbury Burial Board (a). [Crompton J. The test of how the money for the expences of the joint burial ground could be raised was not applied in that case: if it had, the result might have been different.

(a) E. B. & E. 264.

1862.

The QUEEN

V.

Overseers of
WALCOT.

1862.

The QUEEN

v.

Overseers of
WALCOT.

Blackburn J. In that case the Court said that the words "shall mean" in sect. 52 were to be read as "shall extend so as to include."] Sect. 23 enables the vestries of several parishes to provide a burial ground for the common use of their parishes, and to have one joint Burial Board: if it was wished to have a common burial ground for the three ecclesiastical parishes or districts into which the old parish has been divided, proceedings for that purpose should have been taken under that section. [Cockburn C. J. That section applies where independent parishes concur.] It could not have been the intention of the Legislature that there should be a burial ground for the whole parish and a burial ground for each ecclesiastical parish or district. [Cockburn C. J. We must take it that there was a common burial ground for the whole parish; and that neither of the ecclesiastical parishes or districts has a Burial Board or separate burial ground,-de non apparentibus et non existentibus eadem est ratio.] By stat. 20 & 21 Vict. c. 81. s. 5., "the vestry, or meeting in the nature of a vestry, of any parish, new parish, township, or other district not separately maintaining its own poor, and which has had no separate burial ground, may appoint a Burial Board." [Cockburn C. J. But you must go the length of saying that this power given to the minor parish created under stat. 58 G. 3. c. 45. ousts the power of the common-law parish. Suppose that, under the powers of stats. 15 & 16 Vict. c. 85. and 16 & 17 Vict. c. 134., the original parish had appointed a Burial Board, and had raised money for the purpose of establishing a new burial ground, and charged it on the poor rates of the whole parish, how can one of the component parts, when formed

into a

18C2.

V.

Overseers of
WALCOT.

new parish or ecclesiastical district, release itself from the obligation of contributing to defray THE QUEEN the common expences?] By sect. 5 of stat. 20 & 21 Vict. c. 81. it is provided that, when the new parish has appointed a Burial Board, "all the powers of any other vestry or meeting and Burial Board, if any, shall then cease and determine," so far as relates to such new parish. [Cockburn C. J. The new parish can only avail itself of that provision if it has appointed a Burial Board before the entire parish has exercised its right of appointing a Burial Board. The assent of one of the Secretaries of State was made necessary by stat. 23 & 24 Vict. c. 64. s. 4. for the purpose of meeting this inconvenience.]

Kinglake Serjt., in reply.-Stat. 20 & 21 Vict. c. 81. s. 5., at any rate, does not apply until the new ecclesiastical parish or district has acted under it. Stat. 58 G. 3. c. 45. s. 24., which enacts that the new Districts shall be separate and distinct District parishes for ecclesiastical purposes, mentioned burials amongst those purposes solely because the mode of burial is matter of ecclesiastical cognizance; 1 Burn. Eccl. Law, by Phillimore, p. 262, 9th ed. [He was then stopped.]

COCKBURN C. J. We are all agreed that this return is bad, and that our judgment ought to be for the Crown. In the first place it is important to see how the case would have stood if stat. 15 & 16 Vict c. 85., which was passed for the metropolis but was extended to the rest of England by stat. 16 & 17 Vict. c. 134., had stood alone. By sect. 10 a meeting of the vestry of the parish is to be convened for the purpose of determining whether a burial ground shall be provided for the parish; and,

1862.

The QUEEN

v.

Overseers of
WALCOT.

if they resolve that a burial ground shall be provided,
sect. 11 requires them to appoint a Burial Board, and
the following sections give that Board the necessary
powers, among others, that of providing and laying out
a burial ground, and of charging the price on the poor
rates of the entire parish, to be repaid in a given number of
years, and of charging the annual expences on those rates.
There is no reference in the Act to parts of an entire
common-law parish, into which it may have been divided
for ecclesiastical purposes under stat. 58 G. 3. c. 45., or
other Church Building Acts; and by the interpretation
clause, sect. 52, "Parish' shall mean every place
having separate overseers of the poor, and separately
maintaining its own poor." The whole scheme of the
statute is to throw the expence of burial upon the
poor rates of those parishes which may avail them-
selves of its provisions. There is no provision for
ecclesiastical parishes into which a common-law parish
may have been divided; and, inasmuch as the expences
of the burial ground are to be defrayed out of the
poor rates of each parish maintaining its own poor,
it is plain that an ecclesiastical parish, as distinguished
from the aggregate parish maintaining its own poor,
no means of meeting those expences. But it cannot be
supposed that when the Legislature gave power to Her
Majesty in council, upon the representation of one of
the principal Secretaries of State, to close places hitherto
used for burial, and enabled parishes to provide new
places of burial, they could have intended to deprive
ecclesiastical parishes of the right to bury in the new
burial ground. Therefore it is only consistent with com-
mon sense and reason to construe the word "parish,"
in sect. 10 of stat. 15 & 16 Vict. c. 85., in the largest
sense, as embracing the whole parish, into however

has