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The

QUEEN

v.

WESTGATE.

Mellish, forthe defendants.—On the first point. Sect. 18 1862. of stat. 18 & 19 Vict. c. 128. does not apply to a burial The Queen ground which is the property of private individuals. Burial Board of The Court cannot reject the words “ of any parish.” ST. JOHN, 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. perfectly distinct, and shew that the duty of the Burial The QUEEN Board is confined to maintaining the burial ground" of Buria card or any parish ;” and this is not such a burial ground.

St. John, I was at first persuaded by the argument of Mr.
WESTGATE.

Jones that the intention of the Legislature was to pro-
vide 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 church-
yard or burial ground “of any parish”—not “every
churchyard or burial ground in which burials are dis-
continued.” 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 in.
sensible, or that they might be transposed so as to be
read with the word “church wardens.” 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 non-
parochial 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.

For these reasons I think I give effect to the intention 1862. of the Legislature, and I am certain I give effect to the The Queen words used by them, by affirming the judgment of the Burial Board of

St. John, Court of Queen's Bench.

WESTGATE.

POLLOCK C. B. I am of the same opinion, for the reasons assigned by the Lord Chief Justice Erle.

BRAMWELL B. and KEATING J. concurred.

Judgment affirmed (a).

(a) Before the argument commenced, a question was made whether the Court should sit with four Judges only.

Mellish observed that the case in the Court of Queen's Bench was decided by three Judges.

ERLE C. J. That is a reason for hearing the case in this Court with four Judges only.

The Master, Sir Archer Croft, said that the number of Judges necessary to form the Court was not fixed.

MEMORANDUM.

In this Vacation, Michael O'Brien Esq., and Frederick Lowten Spinks Esq., were advanced to the degree of the coif, when they gave rings with the motto “ Aliud nobis est agendum.”

END OF EASTER VACATION.

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The Judges who usually sat in Banc in this

Term were:
COCKBURN C. J. CROMPTON J.
WIGHTMAN J.

BLACKBURN J.

Wednesday, The NEWPORT Dock Company, appellants; The June 4th.

Local Board of Health for the District of the Local Government Act, 1858,

Borough of NEWPORT, in the County of 21 & 22 Vict. c. 98. s. 55.

MONMOUTH, respondents. Rating of dock, adjuncts, and railways. The Newport Dock Company, incorporated under stat. 5 & 6 W. 4.

c. lxxv., were the owners and occupiers of a dock for the reception of ships, with quays, warehouses, cranes, weighing machines and other works, and also of railways or tramroads for transporting traffic to and from the dock, and communicating with their warehouses and with other railways. The railways or tramroads were made under the powers of their Act, and were free to the public on payment of certain tolls. By The Local Government Act, 1858, 21 & 22 Vict. c. 98. s. 55., the general district rates shall be made and levied upon the occupier of all such kinds of property as are assessable to the poor rate, subject to this, among other exceptions, that “the occupier of any land covered with water, or used

1862.

only as a canal or towing path for the same, or as a railway constructed under the powers of any Act of Parliament for public conveyance," is to be assessed at one fourth only of the net annual value. Held,

1. That the dock was “land covered with water," within the exception and therefore rateable at one fourth only of the net annual value.

2. That the warehouses and other adjuncts to the dock were rateable at the net annual value.

3. That the railways or tramroads were constructed “for public conveyance" within the exception, and therefore rateable at one fourth only of the net annual value.

NEWPORT

Dock Company

NEWPORT Local Board of Health.

CASE stated, under stat. 12 & 13 Vict. c. 45. s. 11.

The appellants were The Newport Dock Company, who are incorporated under stat. 5 & 6 W. 4. c. lxxv., and are the owners and occupiers of docks with railways round the same. • The respondents were the Local Board of Health for the district of the borough of Newport, in the county of Monmouth, to which borough the provisions of The Public Health Act, 1848, and The Local Government Act, 1858, have been duly applied.

The Newport Dock Company's docks, railways and works are situate and being within the district of that Local Board of Health, and the Dock Company are the owners and occupiers thereof.

On the 7th day of May, 1861, the respondents made a general district rate upon all the rateable property in their district. This rate was duly published; and in it the Company were assessed as follows:

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