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These latter are, for some purposes, parishes; and, if 1862. the power of appointing a Burial Board had been given The Queen to any “parish,” without defining that word, it might have Overseers of been a question whether the whole ancient parish, or each Walcot. of the ecclesiastical parishes or districts, were a “parish” within the meaning of that statute; but the interpretation clause, sect. 52, puts an end to all doubt, by defining “parish” to mean a place“ having separate overseers of the poor, and separately maintaining its own poor.” The original parish of Walcot remains a parish in that sense: although divided ecclesiastically, it still supports its own poor, and has officers for the whole parish for that purpose.
Then, has any subsequent legislation taken away from this parish its power to appoint a Burial Board ? Mr. Smith contended that it was a separate parish for the purposes of burial, and pointed out the 24th and 27th sections of stat. 58 G. 3. c. 45., under which a parish is divided into Districts for ecclesiastical purposes. Those sections contemplate that each District may have a separate burial ground; not that it must have such, nor that a District cannot be divided for ecclesiastical purposes without having such.
If either of the Districts had acquired a separate burial ground, and this case was subsequent to the passing of stat. 23 & 24 Vict. c. 64., it seems that a point might have been raised that the case would have come within the 4th section of the last mentioned statute, and therefore a Burial Board could not have been appointed for the entire parish without the sanction of the Secretary of State. But, in order to raise that question, the return must have shewn that the ecclesiastical parishes or districts, or one of them, had a separate burial ground, and that the Burial Board for the entire parish had been appointed
1862. since the passing of stat. 23 & 24 Vict. c. 64., and that The Queen the approval of the Secretary of State had not been Cors of given :-whereas the return rests simply on this; that,
after a parish has been divided into ecclesiastical parishes or districts, it is impossible that there should be a Burial Board for the entire parish.
Also, under stat. 20 & 21 Vict. c. 81. s. 5., either of these ecclesiastical parishes or districts, though not separately maintaining its own poor, and not having a separate burial ground, may appoint a Burial Board and acquire a burial ground; and whenever such an appointment has been made, a question of some difficulty will arise as to the effect of the proviso in that section, that all the powers of any other vestry and Burial Board, if any, shall cease and determine, so far as relates to such parish or district. As at present advised, I should agree with the Lord Chief Justice and my brother Crompton. But, in order to raise that question, the return ought to have alleged, as a matter of fact, that such an appointment had been made.
It is sufficient, in order to give judgment in the present case, to say that a parish, having separate overseers of the poor, and separately maintaining its own poor, is a “parish” competent, under stats. 15 & 16 Vict. c. 85. and 16 & 17 Vict. c. 134., to appoint a Burial Board ; and no subsequent legislation takes this power away from such a parish upon its division into separate parishes for ecclesiastical purposes.
MELLOR J. concurred.
Judgment for the Crown (a).
(a) See the next case.
The QUEEN, on the prosecution of the Burial Wednesday,
May 7th. Board of the Parish of St. SAVIOUR, Bath,
20 & 21 l'ict. against The Overseers of the Parish of Walcot c. 81.8.5.
Burial Board. St. SWITHIN, Bath.
District parish for ecclesias
tical purposes. Stat. 20 & 21 Vict. c. 81. s. 5. enacts that the vestry of any parish, new parish, township, or other district not separately maintaining its own poor, and which has no separate burial ground, may appoint a Burial Board ; and such vestry, and the Burial Board appointed by it, shall exercise and have all the powers which they might have exercised and had if such parish, new parish, township or district had had a separate burial ground before stat. 18 & 19 Vict. c. 79. ; provided that all the powers of any other vestry and Burial Board, if any, shall then cease and determine, so far as relates to such parish, new parish, township or district. A mandamus, reciting that the parish of W. had been divided into three parishes for ecclesiastical purposes, and that the vestry of the parish of St. S., being one of them, had appointed a Burial Board, and resolved that a burial ground should be provided, and that the Burial Board should be authorized to incur expences for that purpose, and that the Burial Board had certified that 491. 58. 9d. was required for defraying expences incurred, and directed the overseers of the parish of W. to pay such sum to the clerk of the Burial Board ; commanded the overseers to pay or raise the said sum according to the certificate. Return: that, before the meeting of the vestry of St. S. for determining whether a burial ground should be provided for that parish, a Burial Board was appointed for the original parish of W. Held no answer; as the appointment of a Burial Board for the original parish did not prevent the ecclesiastical parish of St. S. from appointing a separate Burial Board under stat. 20 & 21 Vict. c. 81. 8. 5.
MANDAMUS to the overseers of the poor of the
parish of Walcot St. Swithin, in the city of Bath. The writ recited that by an Order in Council, dated the 5th March, A. D. 1840, made upon a representation of the Commissioners for building new churches, the parish of Walcot St. Swithin was divided for all ecclesiastical purposes whatsoever into three distinct and separate parishes, under and by virtue of stat. 58 G. 3. c. 45., intituled “ An Act for building and promoting the building of additional churches in populous parishes,” and VOL. II.
B. & s.
1862. the three parishes were respectively named Walcot St. The Queen Swithin, St. Saviour and Trinity : that the parish of Overseers of St. Saviour did not separately maintain its own poor,
and had not theretofore had any separate burial ground: that since the division the inhabitants of each of the three ecclesiastical parishes had been accustomed to meet in separate and distinct vestries for ecclesiastical purposes, and to elect separate churchwardens : that it appearing that the place of burial in the parish of St. Saviour was insufficient, the churchwardens of that parish, under and by virtue of and according to the statutes concerning the burial of the dead, to wit, on the 27th January, A.D. 1859, convened a meeting of the vestry of the parish of St. Saviour for the special purpose of determining whether a burial ground should be provided for the parish of St. Saviour pursuant to the said statutes; and that public notice of such vestry meeting, and of the place and hour of holding the same, and of the special purpose thereof, was given in the usual manner in which notices of the meetings of the vestry were given seven days before holding such vestry meeting; and by which vestry it was resolved that a burial ground should be provided under the said statutes for the parish of St. Saviour; and a copy of such resolution, extracted from the minutes of the vestry, and signed by the chairman, was afterwards sent to one of the principal Secretaries of State pursuant to the said statutes : that after such resolution the vestry appointed certain persons, being not less than three nor more than nine, being ratepayers of the parish of St. Saviour, to be, and the same became and were, the Burial Board of the parish pursuant to the said statutes : that at a meeting of the vestry of the parish of St. Saviour, duly convened and held, and of
which due notice was given, it was afterwards resolved 1862. by the vestry, according to the provisions of the said The Queen statutes, that the Burial Board should be authorized to o incur expences to the amount of 27001. in providing ands laying out a burial ground under the Burial Acts, and building the necessary chapel or chapels thereon; and that the Board should be authorized to borrow any money required for the above purposes, and to charge the future poor rates of the said parish with the payment of such money and the interest thereof: that by a certificate under the hands of certain persons being members of the Burial Board, and duly authorized to exercise the powers of the Board, the said persons, on the 28th November, A.D. 1859, certified that the sum of 491. 5s. 9d. was required for defraying expences incurred by the Board for the parish of St. Saviour in carrying into execution the said Acts, and directed the overseers of the poor of the parish of Walcot St. Swithin to pay such sum to the clerk to the Burial Board for and on behalf of the Board : that the overseers had levied and collected from the parishioners of the parish of St. Saviour a separate rate, for the purpose of paying the sum of 491. 5s. 9d., so certified and directed to be paid, but that the defendants had refused to pay the said sum to the clerk of the Burial Board according to the said certificate, or to make and levy a rate for that purpose. The writ then commanded the defendants to pay, or, if necessary, raise the sum of 491. 58. 9d. to pay, to the clerk of the Burial Board for the parish of St. Saviour, according to the certificate of the Board, pursuant to the provisions of stats. 15 & 16 Vict. c. 85. and 20 & 21 Vict. c. 81.
Return. That, on a day which had elapsed before the day on which the meeting of the vestry of the parish of