1862. The QUEEN v. Overseers of WALCOT ST. SWITHIN. Burial Board for the parish should be formed, is quite sufficient.] Petersdorff Serjt. was not called upon to reply. COCKBURN C. J. This is a case of great doubt, and I do not without great hesitation form an opinion upon it. The question is whether a parish for ecclesiastical purposes, carved out of a common-law parish, is entitled, under stat. 20 & 21 Vict. c. 81. s. 5., to appoint a Burial Board for itself, in order to the obtaining of a separate burial ground, there being already a Burial Board established for the entire parish, of which it is a component part. Section 5, in terms, gives power to such a part of a parish to appoint its own Burial Board and establish its own burial ground; and provides that, on its taking the necessary steps for that purpose, all the powers sof the general vestry of the entire parish, and of the Burial Board already constituted, shall at once cease and determine so far as relates to it. If that section stood alone, nothing could be clearer. But a difficulty arises in giving a construction to that section according to its plain meaning, consistently with the enactments in other statutes which are to be read with it. The great difficulty is that, under powers given by the previous Acts, the vestry of the entire parish are entitled to appoint a Burial Board and establish a burial ground for the entire parish, and such Burial Board is empowered to borrow money for the purposes of the burial ground, and to charge the rates of the entire parish with the payment of principal and interest. They are to apportion the charge over the component parts, if each part maintains its own poor and has its own poor rate; but, if not, as in the present case, they are to issue their certificates to the overseers to levy out of the general poor rates the whole amount required. But if, after a general Burial Board has been appointed, and a common burial ground has been obtained for a whole parish, and a charge has been imposed on the rates of the whole parish, a District parish may proceed, under the 5th section, to appoint a Burial Board and establish a separate burial ground of its own, there is great difficulty, though the solution of it is not necessary to the decision of this case, in saying how the powers of the vestry of the whole parish are to be kept alive, so as to enable that body to compel the District parish to contribute its share towards the common liability which has been already incurred and charged upon the rates of the whole parish. The enactment is express that, on the exercise by the District parish of the powers given to it by that section, the powers of the general Burial Board are at once to cease as to the District parish, and therefore the power of granting certificates to the overseers is at an end; and there is no other mode of making the District parish contribute. On the other hand, when we look to that part of the proviso in the same section, which, until a burial ground shall be provided for the new parish or District, with respect to the burial of parishioners of such new parish or District in the burial ground provided under previous Acts for the whole parish out of rates to which the new parish or District shall contribute or be liable, confers upon the incumbent of the new parish or District the same rights, duties and fees as if that burial ground were exclusively the burial ground of such new parish or District, it seems plain that the Legislature did contemplate that a District burial ground 1862. The QUEEN V. Overseers of WALCOT ST. SWITHIN. might be superadded to that already provided for the whole parish. When it becomes necessary to decide that question, it may probably be held that the powers of the general Board, though superseded with respect to the new parish or District for the future, are yet kept alive with reference to expenses and liabilities already incurred. It is sufficient to have suggested this as a difficulty in considering what is the proper construction to be put on the 5th section. With reference to the facts of the present case, and in the midst of this complicated, confused and embrangled legislation the only safe course being to adhere and give effect to the plain meaning of the terms used, I come to the conclusion that, although a Burial Board may have been appointed and a burial ground established for the whole parish, that does not supersede the power of the District parish, under stat. 20 & 21 Vict. c. 81. s. 5., to appoint a Burial Board and provide a separate burial ground for itself. Upon this view our judgment on this mandamus and return must be for the Crown. CROMPTON J. We have to consider the effect of stat. 20 & 21 Vict. c. 81. s. 5., where a Burial Board has been appointed by a smaller ecclesiastical parish or district, after the appointment of a Burial Board for the whole parish. In the preceding case (a) I expressed myself as feeling difficulties as to the construction of that section; and I am not able now to solve the difficulty as to the right of creditors. We have to see whether the prosecutors of this mandamus have brought themselves within that section, or (a) See p. 556. whether there is anything in the return to take them out of it. Upon the whole I think that, on this record, the prosecutors are within sect. 5. We ought to keep as near to the words of the statute as we can. It appears from the writ that St. Saviour is a new parish for ecclesiastical purposes, not separately maintaining its own poor, and that it had no separate burial ground; and therefore it is not within stat. 18 & 19 Vict. c. 128. ss. 12 & 13. But is it not within stat. 20 & 21· Vict. c. 81. s. 5.? By that section the vestry of a new parish, not separately maintaining its own poor, and which has no separate burial ground, may appoint a Burial Board with all the powers of a Burial Board for the whole parish under previous Acts, and among others the power of issuing certificates to the overseers of the parish for taxing that part of the parish which has come to the resolution of providing a separate burial ground; and there is a proviso that then all the powers of the vestry and of the Burial Board for the whole parish shall cease as to the new ecclesiastical parish. But for that proviso, there would be much in Mr. Smith's argument that when a Burial Board has been appointed for the whole parish, including one or more parishes for ecclesiastical purposes, those parishes would not have the power to appoint a separate Burial Board; just as when one of two sets of magistrates, having concurrent jurisdiction, gets seisin of a matter the other is functus officio,—though that is not exactly a parallel case, because the two bodies in the present case are not to do precisely the same thing. I should have doubted whether, in order to get rid of the difficulty, we might not have strained the language of the proviso in sect. 5, as introduced per incuriam, or, for greater caution, to guard 1862. The QUEEN V. Overseers of ST. SWITHIN. 1862. The QUEEN V. Overseers of against any thing whether possible or impossible; but, in the subsequent part of the proviso, the framers of the Act distinctly contemplate the case of a smaller ecclesiastical parish appointing a separate Burial Board, where a burial ground has been already provided for the whole parish, because it says, "If any burial ground has been or shall be provided under the recited Acts for the burial of the dead, or any or either of them, for any parish or parishes out of rates to which such new parish or district, or any part thereof, shall have contributed or contribute or be liable." If the smaller ecclesiastical parish is in a large parish, it may be convenient for its inhabitants to have their own burial ground. be The possible solution of the difficulty, where a liability has been previously thrown on the whole parish, may that the proviso restrains the Burial Board of the whole parish from doing any act to lay any fresh burden upon the new ecclesiastical parish, but that their powers to carry out what has been already begun, and as to liabilities already incurred, continue in force. Unless the Courts hold that existing liabilities remain and cannot be got rid of, and that the powers of the Burial Board of the whole parish quoad those liabilities remain also, the Legislature must interfere. However that may be, the Legislature appear to have given the smaller part of the parish, which has been constituted an ecclesiastical parish, power to provide a separate burial ground, and to tax themselves for that purpose. BLACKBURN J. The difficulty in the present case arises from the necessity of construing these statutes together. The proviso in sect. 5 of stat. 20 & 21 Vict. c. 81. appears to have been framed without reflecting |