1862. CRIPPS V. HARTNOLL. ultimately obliges him to pay, impliedly requests him to pay, and is as much liable to repay, as he would be on a direct request to pay money for him with a promise to repay it. In every case, therefore, in which there has been a payment of money by a plaintiff to a third party, at the request of the defendant, express or implied, on a promise, express or implied, to repay the amount, this form of action is maintainable." In Fitzgerald v. Dressler (a) Williams J. says, p. 385, "The statute only applies where the promise is made to the person entitled to the money." The present case is further distinguishable from Green v. Cresswell (b) in this, that in that case there was no count for money paid. Cur. adn. vult. The judgment of the Court was now delivered by CROMPTON J., who said that, without expressing any opinion as to what might be the judgment of a Court of error on the decision in Green v. Cresswell (b), this Court was bound by that decision. If that case was law, the distinction between it and the present, that the one arose on a bail bond in a civil suit and the other on recognizances for the appearance of a person in a Criminal Court, was immaterial. Neither was it necessary to consider the point whether in order to bring a case within the 4th section of the Statute of Frauds, 29 Car. 2. c. 3., the debt or default must be towards the promisee, as that point was taken and decided in Green v. Cresswell (b). For these reasons the nonsuit was right, and the present rule must be discharged. Rule discharged. (a) 7 C. B. N. S. 374. (b) 10 A. & E. 453, 1862. IN THE EXCHEQUER CHAMBER. May 14th. The QUEEN against The Burial Board for the Wednesday, Parishes of ST. JOHN, WESTGATE, and ELSWICK, in the Borough and County of NEWCASTLE UPON TYNE. Stat. 18 & 19 Vict. c. 128. s. 18., which enacts that in every case in which any order in council is issued for the discontinuance of burials in any churchyard or burial ground, the Burial Board or Churchwardens shall maintain such churchyard or burial ground of any parish in decent order, and also do the necessary repair of the walls and other fences thereof, and the expences shall be repaid by the overseers, upon the certificate of the Burial Board or Churchwardens, out of the poor rate of the parish or place in which such churchyard or burial ground is situate, unless there shall be some other fund legally chargeable with such expences, does not apply to a burial ground which is not a burial ground of any parish, but is the property of private persons: affirming the judgment of the Queen's Bench. JUDGMENT having been entered for the defendants in the Court below, upon demurrer to the return to the mandamus in this case (see vol. 1, p. 679), the prosecutors brought error. T. Jones (Northern Circuit), for the prosecutors.-First. The obligation imposed on the public by sect. 18 of The Burial Act, 18 & 19 Vict. c. 128., to maintain burial grounds in decent order, and keep the walls and fences in repair, extends to all burial grounds closed by order in council. [Bramwell B. If a private burial ground is closed, the proprietor might use that part in which there had been no burials as his private property.] Not if it was closed by order in council, and repaired at the public expence. The order in council would be an assumption of authority over it, and prevent the future acquisition of 18 & 19 Vict. c. 128. s. 18, Closed burial ground, Repair. profit from it. The scope of the Act is to give the Crown, for sanitary purposes, a discretion to close any burial grounds, and after they are closed to keep them from desecration. The true rule in construing statutes is not to confine the operation of the enactment within any special words in it, if the general intent shews that those words are redundant. Here sect. 18 enacts "in every case in which any order in council has been or shall hereafter be issued for the discontinuance of burials in any churchyard or burial ground, the Burial Board or churchwardens, as the case may be, shall maintain such churchyard or burial ground of any parish in decent order" &c. Construing this enactment by the above rule, the words "of any parish" are redundant; and then the section applies to any burial ground in a parish: or, the words "of any parish" may be read with "churchwardens," the intermediate words being put in a parenthesis. The section provides for two classes of burial grounds: first, those which are under the care of the churchwardens; and secondly, places for public interment such as this, not belonging to the parish. [Erle C. J. Otherwise the burial grounds of dissenters would be excluded from the section.] Secondly. The liability to maintain this burial ground in decent order and repair its fences was upon this joint Burial Board. Any number of parishes may concur in providing one common burial ground, and then the Burial Boards appointed for such parishes form one joint Burial Board. [He referred to stat. 15 & 16 Vict. c. 85. ss. 23. 24. and 24 & 25 Vict. c. 61. s. 21.; and was then desired by the Court to reserve his further argument on this question.] Mellish, for the defendants.-On the first point. Sect. 18 of stat. 18 & 19 Vict. c. 128. does not apply to a burial ground which is the property of private individuals. The Court cannot reject the words "of any parish." Every parishioner has a right to be buried in the churchyard; whereas the return states that this burial ground is the property of certain private persons, and that fact must be taken as admitted on the record. [Bramwell B. Suppose a writ issued to fence this burial ground, and the proprietors brought an action of trespass quare clausum fregit against the Burial Board?] Or suppose the proprietors did not like the fence and pulled it down, what remedy would there be against them? [Erle C. J. That reasoning would apply to the burial grounds of dissenters.] Throughout the legislation upon this subject a distinction has been made between parochial burial grounds, which cannot be devoted to any other purpose, and nonparochial burial grounds. [He referred to stat. 16 & 17 Vict. c. 134. ss. 2. 5.] If the parish wish that this burial ground should be maintained in decent order, and its fences be repaired at the public expence, the vestry may purchase it under sect. 8 of stat. 20 & 21 Vict. c. 81. ERLE C. J. This is a mandamus directed to the joint Burial Board for the parishes of St. John, Westgate, and Elswick, in Newcastle upon Tyne, to maintain a burial ground, situate in the township of Westgate, in decent order, and do the necessary repairs of the walls and fences thereof. It appears from the return to the mandamus that this burial ground is not the burial ground of any parish, but belongs to private persons. The words of sect. 18 of stat. 18 & 19 Vict. c. 128. are 1862. The QUEEN V. Burial Board of 1862. perfectly distinct, and shew that the duty of the Burial Board is confined to maintaining the burial ground "of Burial Board of any parish ;" and this is not such a burial ground. The QUEEN V. ST. JOHN, WESTGATE. I was at first persuaded by the argument of Mr. Jones that the intention of the Legislature was to provide for maintaining the fences of all burial grounds in which burials should be discontinued by order in council. But I am now satisfied that such was not the intention. The section enacts that "in every case" in which an order in council is issued for the discontinuance of burials in any churchyard or burial ground the Burial Board or Churchwardens shall maintain such churchyard or burial ground "of any parish"-not "every churchyard or burial ground in which burials are discontinued." Mr. Jones argued that the words "of any parish," which are clearly illogical as the sequence to the first part of the sentence, might be rejected as insensible, or that they might be transposed so as to be read with the word "churchwardens." But that is the ultima ratio when an absurdity would follow from giving effect to the words of an enactment as they stand. If section 18 applied to this burial ground, which is admitted on the record to be a private burial ground, there would be so far a violation of the rights of private property. Moreover, when I refer back to the original statute for discontinuing old burial grounds and providing others, I find a distinction made between parochial and nonparochial burial grounds; and in the subsequent statute that distinction appears to have been well before the mind of the Legislature; and therefore I infer that when this section was in terms limited to maintaining the burial ground "of any parish," those words were inserted purposely. |