1866. FOSTER

V.

DODD.

On the 2nd September, 1859, a letter having been addressed to the Secretary of State on behalf of persons interested, stating that the Bridewell Precinct Burial Ground still remained in the same state, the under Secretary for the Home Department directed a government inspector to inspect the burial ground and report pursuant to sect. 1 of stat. 22 Vict. c. 1.

On the 6th September the inspector made his report that nothing appeared to have been done to remove the building materials, or to level the ground, or to cover the surface with fresh soil or to sow grass seed as directed by the order, and that its general appearance was very disorderly.

On the 15th September, 1859, the Secretary of State directed to the churchwardens of the parish of St. Bride the following notice ::

"To the churchwardens of the parish of St. Bride in the city of London. Whereas it appears to me the Right Hon. Sir Geo. C. Lewis, Bart., one of Her Majesty's principal Secretaries of State, on the representation of Philip Henry Holland, Esq., a person authorized by me to inspect the Bridewell Precinct Burial Ground, in the parish of St. Bride, in the city of London, in relation to which an order in council has been issued under sect. 23 of" stat. 20 & 21 Vict. c. 81., "that certain acts which by such order in council are ordered to be done by or under the direction of persons other than the churchwardens having the care of such burial ground have not been done and performed within a reasonable time and according to the intent of such order in council. Now I do hereby, by this writing under my hand, authorize and direct you the churchwardens of the parish of St. Bride, in the city of London, in which the said

burial ground is situate, forthwith to do or complete the acts in the said order mentioned, or such of them as remain undone. Given under my hand at Whitehall, the 15th day of September, 1859.

"G. C. Lewis."

On the 16th September this order was delivered to the defendants.

On the 5th October, 1859, the defendants, as churchwardens of the parish of St. Bride, caused to be delivered to the Earl De la Warr, Mr. Soward and the plaintiff, a letter or notice, which, after reciting the order in council dated the 12th August, and the order of the Secretary of State dated the 15th September, gave them notice "to remove and take away from the burial ground all the rubbish, materials and other things now lying or being thereon or therein which belong to you respectively and are not part of and appurtenant to the burial ground, within fourteen days from the date hereof, and that in default of your so doing we shall cause the said rubbish, materials and other things to be sold, and that, after deducting and paying the expenses of such sale from and out of the proceeds thereof, we shall be ready to pay the residue of such proceeds, if any, to you or such of you as shall establish a right thereto, or to part thereof, by such proofs as our counsel in the law may deem satisfactory. And we also give you notice that after the expiration of the said period of fourteen days we shall proceed to cause the said order in council to be carried into effect."

Neither the Earl De la Warr, nor Mr. Soward, nor the plaintiff, nor any person on his or their behalf, performed any of the acts or works required to be done by the orders and report or either of them.

1866.

FOSTER

V.

Dodd.

1866.

FOSTER

V.

DODD.

On the 24th October, 1859, the defendants, being such churchwardens, did, in consequence of those orders, cause the land to be entered as complained of by the plaintiff, and committed the alleged trespasses.

The Court was at liberty to draw any inference of fact from the facts stated which a jury might draw.

The question for the opinion of the Court was, whether the plaintiff was entitled to recover upon the first count of the declaration in respect of any part, and if any which part, of the alleged acts of trespass. If the Court should be of opinion that he was so entitled then judgment was to be entered for the plaintiff on that count accordingly, with such damages as should be determined by an arbitrator. Such arbitrator to decide whether any and what further sum should be paid to the plaintiff under the second count beyond the sum paid into Court.

Stat. 20 & 21 Vict. c. 81. s. 23. "It shall be lawful for Her Majesty, upon the representation of one of Her Majesty's principal Secretaries of State, by and with the advice of her Privy Council, from time to time to order such acts to be done by or under the directions of the churchwardens or such other persons as may have the care of any vaults or places of burial, for preventing them from becoming or continuing dangerous or injurious to the public health; and every such order in council shall be published in the London Gazette, and such churchwardens or other persons shall do or cause to be done all acts ordered as aforesaid, and the expenses incurred in and about the doing thereof shall be paid out of the poor rates of the parish: Provided always, that no such representation shall be made until ten days previous notice of the intention to make such represen

tation shall have been given to the churchwardens or other persons, or one of the churchwardens or other persons, having the care of the vaults or places of burial to which the representation relates."

Stat. 22 Vict. c. 1. s. 1. After reciting sect. 23 of stat. 20 & 21 Vict. c. 81., "Where it appears to one of Her Majesty's principal Secretaries of State, on the representation of any person authorized by him to inspect any vaults or places of burial in relation to which an order in council has been or shall have been issued under the said recited enactment, that any acts which by such order in council are ordered to be done by or under the direction of persons other than churchwardens having the care of such vaults or places of burial are not done or performed within a reasonable time, and according to the intent of such order in council, it shall be lawful for such Secretary of State, by writing under his hand, to authorize and direct the churchwardens of the parish in which such vaults or place of burial may be situate forthwith to do or complete the acts in such order in council mentioned, or such of them as remain undone, and such order of the Secretary of State shall be obeyed by such churchwardens, and they and all persons acting under their direction shall have the same power of entering and doing all such acts upon the premises to which the order in council relates as if the said acts had by the order in council been directed to be done by such churchwardens, and such vaults or place of burial had been under their care; and any person who shall obstruct such churchwardens or any others acting under their direction in relation to the premises, or remove or interfere with the works done by such churchwardens, shall be guilty of a misdemeanor."

1866.

FOSTER

V.

DODD.

1866.

FOSTER

V.

DODD.

Mellish (H. Bullar with him), for the plaintiff.-The first and main question is, whether any part of the land is a place of burial within the meaning of stat. 20 & 21 Vict. c. 81. s. 23. If not the order in council of the 12th August, 1859, made upon the representation of the Secretary of State, is invalid, and the order of the Secretary of State, in pursuance of stat. 22 Vict. c. 1. s. 1., under which the churchwardens acted, was without jurisdiction, and they are liable in trespass.

First. The result of the facts is that the land was never subject to any servitude or trust for burial. It was leased when waste land to a corporation; and they, without any authority from the lessor, de facto buried in it. There is no record of its having been consecrated; and the Court will infer that it was not, for it was held by the governors of Bridewell Hospital as leasehold and the leases were subject to forfeiture for nonpayment of rent. [Lush J. Would a clergyman officiate in unconsecrated ground?] He does so in burials at sea. Nor is this the case of a burial ground vested in trustees, in which a contract might be implied between the trustees and the persons who buried their relatives in it that it should not be disturbed or appropriated to other purposes. It was used only as a burial place for a certain class of persons. [Lush J. Other persons besides the inmates of Bridewell Hospital were occasionally buried in it.] Moreover, burials in it de facto ceased after 1844, when the last lease granted to the governors of Bridewell Hospital expired. They held it for ten years afterwards, but never buried in it during that time or applied for a fresh lease. The inference is that before the passing of stat. 20 & 21 Vict. c. 81. they abandoned the intention of burying in it.