cumbent is entitled under the provisions herein contained shall pay such part to him, his executors or administrators, accordingly; and the company shall not be answerable to any person, other than the actual incumbent for the time being, for the payment of any sums by virtue of this or the special act."

clerks the com

Sect. 57. "The company shall, on the burial of every Company to body within the consecrated part of the cemetery, except pay parish where the body is buried at the expense of any parish or pensation ecclesiastical district, or union of parishes for the relief of mentioned. the poor, pay to the parish clerk of the parish or ecclesiastical district from which such body has been removed for burial, if he held the office of parish clerk of such parish or ecclesiastical district at the time of the passing of the special act, but not otherwise, such sum, if any, as shall be prescribed for that purpose in the special act."

c. 85, and 16

c. 134.

burials in con

By 15 & 16 Vict. c. 85 (extended to towns generally Fees under 15 by 16 & 17 Vict. c. 134), the following provisions for & 16 Vict. compensation are made when churchyards are closed under & 17' Vict. the acts:Sect. 33. "Any burial board, under such restrictions Fees to be paid and conditions as they think proper, may sell the exclusive minister for right of burial, either in perpetuity or for a limited period, secrated part in any part of any burial ground provided by such board, of burial and also the right of constructing any vault or place of ground. burial with the exclusive right of burial therein in perpetuity or for a limited period, and also the right of erecting and placing any monument, gravestone, tablet, or monumental inscription in such burial ground; but there shall be payable to the incumbent or minister of the parish out of the fees or payments to be paid in respect of any rights acquired under this enactment in the consecrated part of such burial ground (in lieu of the fees or sums which he would have been entitled to on the grant of the like rights in the burial ground of his parish) such fees or sums as shall be settled and fixed by the vestry with the approval of the bishop of the diocese, or if no such fees or sums shall have been so settled, then such fees as he would by law or custom have been entitled to on the grant of the like rights in the burial ground of his parish."

The previous section (sect. 32), which is also of importance on this question, has been already cited (j).

Sect. 35. "Where at the time of the discontinuance of Fees to be diinterment in any burial ground the fees in respect of vided among burials therein are divided between the incumbent of the entitled.

incumbents

Payment in certain cases to churchwardens, trustees, &c.

Power to vestry, with consent of bishop, to revise the fees to incumbent, stitute a fixed payment.

&c., or to sub

Management

to be vested in burial boards,

parish and the incumbent of any district parish or other ecclesiastical district, each incumbent shall have the same proportion of the fees in the burial ground to be provided under this act, as he was entitled to in respect of interments in the old burial ground."

Sect. 36. "Where fees or any portion of fees payable on interments or for any monument, gravestone, tablet or monumental inscription in the burial ground of any parish for which a burial ground is provided alone or jointly with any other parish or parishes under this act, are by law or custom payable to the churchwardens of any parish, or to trustees or other persons, for or towards the payment of any annuity or stipend to the incumbent or minister, or any other parochial purpose, or the discharge of any debt or liability, such fees or portion of fees shall be payable in the burial ground to be provided as aforesaid for such parish under this act, and shall be received by the burial board and paid to the parties entitled to receive the same; and where fees or payments have been received on interments, or for any monument, gravestone, tablet, or monumental inscription, in the burial ground of any such parish by any such churchwardens, or by trustees or other persons, for the purpose of discharging any periodical payment or other liability, it shall be lawful for the burial board, upon the request of such churchwardens, trustees, or persons, to pay from time to time, out of the fees and monies received by them on account of such parish, such amount as may be necessary for discharging such periodical payment or liability.'

Sect. 37. "It shall be lawful for the vestry of any parish from time to time, if they think fit, with the consent of the bishop of the diocese, to revise and vary the fees payable to the incumbent, clerk, and sexton, and other persons and bodies respectively, under the provisions of this act, or, with such consent as aforesaid, to substitute for the fees payable to such incumbent, clerk, and sexton, and other persons and bodies respectively, a fixed annual sum of such amount as to such vestry may seem just, to be payable by such periodical payments as such vestry may appoint, and in such last-mentioned case the fees which would otherwise be payable under this act to the incumbent, clerk, and sexton, and such other persons and bodies respectively, shall be paid to the burial board, and such fixed payments as aforesaid shall be paid by such board."

Sect. 38. "The general management, regulation, and control of the burial grounds provided under this act shall, subject to the provisions of this act and the regulations to

be made thereunder, be vested in and exercised by the respective burial boards providing the same; provided that any question which shall arise touching the fitness of any monumental inscription placed in any part of the consecrated portions of such grounds shall be determined by the bishop of the diocese."

incumbents of

parishes.

Sect. 39. Where a burial ground is provided under Arrangements this act for the common use of two or more parishes, in between the case any question arise among the incumbents of such parishes as to the performance of the burial service by a chaplain to be paid by means of contributions from such incumbents, or deductions from fees or sums payable to them, or otherwise touching the performance of service in the consecrated part of such ground, the bishop of the diocese shall from time to time confirm any arrangement which a majority, or, in case of equal numbers, one half of the incumbents shall approve, and such arrangement so confirmed shall be binding upon all the parties concerned."

Sect. 50. "Where under any local act fees on inter- Where fees ments in any burial ground of any parish in the metropolis are charged are payable to the churchwardens of such parish, or to any of stipend to with payment trustees or other persons, for the purpose of enabling them minister. to pay an annuity or stipend to the incumbent or minister, the fees which under this act, or any act relating to any cemetery company, would on the interment in the cemetery of any company of any body brought from such parish be payable to such incumbent or minister, shall be payable to the said churchwardens, trustees, or persons, and any surplus of such fees which may remain in their hands after payment of such annuity or stipend shall be paid to such incumbent or minister."

By 17 & 18 Vict. c. 87, s. 10, the powers of settling and fixing the fees or sums to be payable to the incumbent or minister, and of revising and varying the fees payable to the incumbent, clerk and sexton and other persons and bodies, and of substituting for such fees fixed annual sums, by sections 33 and 37 of the last act given to the vestry, and exercisable with the approval or consent of the bishop of the diocese, as therein mentioned, shall with respect to fees and sums arising in or from any burial ground provided under this act by the council of any borough be transferred to such council, and be exercisable with the like approval or consent.

Council of borough to have power of burial board in certain cases.

By 19 & 20 Vict. c. 104, s. 32, for the purposes of the Ecclesiastical acts concerning or regulating the burial of the dead, every districts. parish created under it or under 6 & 7 Vict, c. 37, or

City of London.

Clerks and

sextons may

do their offices in burial grounds.

Hornby v.
Torteth

Burial Board.

Day v. Peacock.

7 & 8 Vict. c. 94, shall be held to be an ecclesiastical district within the meaning of the said acts.

By 20 & 21 Vict. c. 35, all these provisions, except those contained in sect. 39 of 15 & 16 Vict. c. 85, are repealed as to the city of London; and special enactments are made instead.

In the case of Gell v. Mayor, &c. of Birmingham (k), it was holden that, under 15 & 16 Vict. c. 85, and 16 & 17 Vict. c. 134, parish clerks and sextons are entitled to perform, when necessary, the same functions and duties, and receive fees therefor, in respect of the burials of parishioners and inhabitants of the parishes of which they are clerks and sextons in the new burial grounds provided by burial boards under these acts, and the burial boards cannot deprive them of such fees by appointing other persons to do their duties. Nor can they maintain trespass against the sexton or his lawful deputy for entering upon the burial ground to dig the grave and toll the bells under the 67th Canon (7).

In the case of Hornby v. The Burial Board of Toxteth Park (m), upon the construction of the general and local burial acts, the incumbents of the several churches within the district of Toxteth Park were holden not to be entitled, either collectively or individually, to any of the fees paid for burials in the Toxteth Park Cemetery, upon the ground that none of those churches had burial grounds attached to them in which the persons dying within the district would have been buried, as of right, if it had not been for the existence of the Toxteth Park Cemetery.

But in Day v. Peacock (n), where prior to the act 15 & 16 Vict. c. 85, a township, which was a parish within the meaning of the interpretation clause of the act, was divided into ecclesiastical districts with separate burial grounds, and afterwards a burial ground was provided under the act for the whole township, it was held, that each incumbent of such district was entitled to the burial fees in respect of the burial service performed by him in the burial ground provided under the act to which he would have been entitled before the act if the body had been buried in the burial ground attached to his district.

(k) 10 L. T., N. S. 497.

(1) Burial Board of St. Margaret's Rochester v. Thompson, 19 W. R. 892; 40 L. J., N. S., C. P. 213.

(m) 31 Beav. 52; 8 Jur., N. S. 531.

(n) 18 C. B., N. S. 702; 34 L. J., C. P. 225.

SECT. 5.- Mortuaries.

Closely analogous to burial fees are mortuaries.

A mortuary seems to have been originally an oblation Old law as to. made at the time of a person's death. In the Saxon times there was a funeral duty to be paid, which was called pecunia sepulchralis, and symbolum animæ or the soulshot, which was required by the Council of Enham, and enforced by the laws of King Canutus, and was due to the church which the party deceased belonged to, whether he was buried there or not (o).

Dr. Stillingfleet makes a distinction between mortuaries and corse presents: the mortuary, he says, was a right settled on the church upon the decease of a member of it; and a corse present was a voluntary oblation usually made at funerals (p).

And it seems that in ancient times a man might not dispose of his goods by his last will and testament without first assigning therein a sufficient mortuary to the church. And this, in a constitution of Archbishop Winchelsea, is called the principal legacy, so denominated (says Lindwood), because they who died did bequeath the best or the second best of their goods to God and the church, in the first place, and before other legacies (7).

And in another constitution of the same archbishop it is enjoined, that if a person at the time of his death have three or more quick goods, the first best shall be given to him to whom it is due (that is, to the lord of the fee for a heriot), and the second best shall be reserved to the church where the deceased person received the sacraments while he lived (r).

And this was usually carried to the church with the dead corpse. And Mr. Selden quotes an ancient record, where it is recited, that a horse was presented at the church the same day in the name of a mortuary, and that the parson received him according to the custom of the land. and of holy church (s).

statute 21 Hen.

By 21 Hen. 8, c. 6, s. 1," Forasmuch as question and Limitations of doubt hath arisen upon the order, manner and form of mortuaries by demanding, receiving and claiming of mortuaries, other- 8, c. 6. wise called corse presents, as well for the greatness and value of the same, which, as hath been lately taken, is thought over-excessive to the poor people and other persons of this realm, as also for that such mortuaries or corse presents have been demanded and levied for such as at the

(0) 1 Still. 171.

(p) 1 Still. 172, 173. (q) Lind. 196.

(r) Ibid. 184.
(s) Seld. Hist. Tith. 287.