pass 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 (m).

incumbents

In the case of Hornby v. The Burial Board of Toxteth Park (n), Rights of upon the construction of the general and local burial acts, the where no incumbents of the several churches within the district of Toxteth previous Park were holden not to be entitled, either collectively or in- churchyard. dividually, 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 Stewart v. The West Derby Burial Board (nn), the incumbent of West Derby was holden entitled and bound to perform the burial service over any of his parishioners buried in the consecrated part of the burial ground, provided in his parish by a burial board, though the parish of West Derby had never had a churchyard.

In Day v. Peacock (o), where prior to the act 15 & 16 Vict. Rights where c. 85, a township, which was a parish within the meaning previous churchyards. 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.

boards.

By 20 & 21 Vict. c. 81, s. 5, " The vestry, or meeting in the 20 & 21 Vict. nature of a vestry, of any parish, new parish, township, or other c. 81. Districts not district not separately maintaining its own poor, and which has fully parohad no separate burial ground, may appoint a burial board; chial may and such vestry or meeting, and the burial board appointed by have burial it, shall exercise and have all the powers which they might have exercised and had under the said acts, and this act, if such parish, new parish, township, or district had had a separate burial ground before the passing of" 18 & 19 Vict. c. 128: "Provided always, that all the powers of any other vestry, or meeting and burial board, if any, shall then cease and determine, so far as relates to such parish, new parish, township, or district as aforesaid; and until a burial ground shall be so provided as aforesaid Until burial and consecrated for any new parish or district created or to be ground made created pursuant to the provisions of " 6 & 7 Vict. c. 37, 7 & 8 parish, inVict. c. 94, 19 & 20 Vict. c. 104, "or any or either of them, and cumbent

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

(n) 31 Beav. p. 52; 8 Jur., N. S.

p. 531.

(nn) 34 Ch. D. p. 314.

(0) 18 C. B., N. S. p. 702; 34 L. J., C. P. p. 225.

for new

may

officiate and have fees in any burial ground for which his district pays rates.

Proviso
for old
incumbents,
clerks and
sextons.

Act applies

when district becomes

separate

parish.

Application

to sextons.

to which the said acts or any or either of them may apply, the incumbent of such new parish or district (if any burial ground has been or shall be provided under the herein 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), shall, with respect to the burial in such last-mentioned burial ground of the remains of the parishioners or inhabitants of such new parish or district, or of such part thereof as shall have contributed or contribute as aforesaid, as the case may be, perform the same duties and have the same rights, privileges, and authorities, and be entitled to the same fees, and also the clerk and sexton of such new parish or district shall, when necessary, respectively perform the same duties, and be entitled to the same fees, in respect of such burials, as if the said burial ground were exclusively the burial ground of such new parish or district, subject nevertheless to all provisions to which the incumbents, clerks, and sextons of original parishes are respectively subject in and by the said burial acts, or any or either of them: Provided also, that nothing herein contained shall affect the rights or privileges of any existing incumbent, clerk, or sexton without the consent of such incumbent, clerk, or sexton respectively."

In the case of Cronshaw v. The Wigan Burial Board (p), where a church had been built and had a district assigned to it under 58 Geo. 3, c. 45, and 59 Geo. 3, c. 134, and authority was given to perform baptisms, marriages, and burials in the new church, and the fees therefor were to be received by the incumbent of the new church, it was holden by the Exchequer Chamber that the district assigned to the new church became a separate and distinct parish for ecclesiastical purposes under 19 & 20 Vict. c. 104, s. 14, so that upon the death of the clerk, who was incumbent of the mother church at the time of the assignment of the district, the incumbent of the district had a right under sect. 5 of 20 & 21 Vict. c. 81, to perform the burials of his parishioners within the cemetery provided by the burial board for the whole of the old parish, and to receive the fees on burials.

The same point was decided by the Queen's Bench in a case where an action was brought by a sexton (g).

In White v. The Norwood Burial Board (r), the sexton of the old parish was holden not to be entitled to fees, in similar circumstances.

(p) L. R., 8 Q. B. p. 217.
(1) Ormerod v. Blackburn Burial

Board, 21 W. R. p. 539.

(r) 16 Q. B. D. p. 58.

SECT. 5.-Mortuaries.

Closely analogous to burial fees are mortuaries.

A mortuary seems to have been originally an oblation made Old law as to at the time of a person's death. In the Saxon times there was a mortuaries. funeral duty to be paid, which was called pecunia sepulchralis, and symbolum animæ or the soul-shot, 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 (s).

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 (t).

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 (u).

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 (v).

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 (x).

of mortuaries

By 21 Hen. 8, c. 6, s. 1, "Forasmuch as question ambiguity 21 Hen. 8, and doubt is chanced and arisen upon the order manner and form c. 6. of demanding, receiving and claiming of mortuaries, otherwise Limitations called corse presents, as well for the greatness and value of the by statute. 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 time of their death have had no property in any goods or chattels, and many times for travelling and wayfaring men in the places where they have fortuned to die; to the intent that all doubt, contention and uncertainty herein may be removed, and as well the generality of the king's people therein remedied, as also the parsons, vicars, parish priests, curates and

Scale fixed. No double payments.

What classes of persons exempt.

others having interest in such mortuaries and corse presents indifferently provided for, it is enacted, that "no parson, vicar, curate, nor parish priest, nor any other spiritual person, nor their farmers, bailiffs, nor lessees, shall take, receive or demand of any person or persons within this realm, for any person or persons dying within the same, any manner mortuary or corse present, nor any sum or sums of money nor any other thing for the same more than is hereafter mentioned, nor also shall convent or call any person or persons before any judge spiritual for the recovery of any such mortuaries or corse presents, or any other thing for the same, more than is hereafter mentioned; on pain to forfeit for every time so demanding receiving taking or conventing or calling any such person or persons before any spiritual judge so much in value as they shall take above the sum limited by this act, and over that 40s. to the party so grieved contrary to this act," to be recovered by action of debt.

Sect. 2. "First it is ordained, established and enacted that no manner of mortuary shall be taken or demanded of any person whatsoever he be, which at the time of his death hath in moveable goods under the value of ten marks; also that no mortuary shall be given, asked or demanded henceforth from any manner of person but only in such place where heretofore mortuaries have been used to be paid and given, and in those places none otherwise but after the rate and form hereafter mentioned: nor that any person pay mortuaries in more places than one, that is to say, in the place of their most dwelling habitation, and there but one mortuary: nor any parson vicar curate parish priest or other, shall, for any person dying or dead, and being at the time of his death of the value in moveable goods of ten marks or more, clearly above his debts paid, and under the sum of 307., take for a mortuary above 3s. 4d. in the whole. And for a person dying or dead, being at the time of his death of the value of 301. or above, clearly above his debts paid, in moveable goods, and under the value of 407. there shall no more be taken or demanded for a mortuary than 6s. 8d. in the whole; and for any person dying or dead, being at the time of his death of the value in moveable goods of 407. or above, to any sum whatsoever it be, clearly above his debts paid, there shall be no more taken, paid or demanded for a mortuary than 10s. in the whole."

Sect. 3. "Provided always, that for no woman being covert, baron, nor child, nor for any person not keeping house, any manner mortuary be paid nor also for any wayfaring man or other that dwelleth not nor maketh residence in that place where they shall happen to die, but that the mortuary of such wayfaring persons be answerable, in places where mortuaries be accustomed to be paid in manner and form and after the rate before mentioned, and none otherwise, in the place or places where such wayfaring persons at the time of their death had their most habitation, house and dwelling places, and no where else."

persons

Sect. 4. "Provided alway, that it shall be lawful to all Proviso as to manner of parsons vicars curates parish priests and other gifts from spiritual persons, to take and receive any manner sum of money dying. or other thing, which by any person dying shall fortune to be disposed given or bequeathed unto them, or any of them, or to the high altar of the church."

Berwick.

Sect. 5. "And no mortuaries nor corse presents, nor any sum No mortuaries in Wales or or sums of money or other thing for any mortuary or corse present, shall be demanded, taken, received, or had in the parts of Wales, nor in the marches of the same, nor in the town of Berwick, nor marches of the same, but only in such parts and places of the same where mortuaries have been accustomed to be paid; and in those places no mortuaries or corse presents, nor any other thing for mortuary or corse present, from henceforth shall be demanded, taken, received, or had, but only after the form, order, and manner above specified in this present act, and none otherwise, nor of any other person or persons than is limited by the present act, upon the pain above contained in this present act."

Sect. 7. . "Provided also, that in such places where Where cusmortuaries have been accustomed to be taken of less value than tomary payments lower, is aforesaid, no person shall be compelled to pay in such place scale not to any other mortuary, or more for any mortuary than hath been be in force. accustomed; nor that any mortuary in such place shall be demanded, taken, received, or had of any person or persons exempt by this act, nor in any wise contrary to this act, upon the pain afore limited."

preserved by

The same section of the act preserved the right of the Bishops Certain of Bangor, Llandaff, St. Davids, and St. Asaph, and of the arch- mortuaries deacon of Chester to take mortuaries of "the priests within their act afterwards dioceses and jurisdictions" (y). These rights were abolished by abolished. 13 Anne, c. 6, as to the above four dioceses, and by 28 Geo. 2, c. 6, as to the archdeacon of Chester.

Some special customs in the archdeaconry of Richmond in the 26 Hen. 8, county of York, by virtue of which the parochial clergy used to c. 15. take of "every person when he dieth, in the name of a pension or of a portion, sometime the ninth part of all his goods and chattels, and sometime the third part, to the open and manifest impoverishing of most part of the king's poor subjects inhabiting and deceasing within the same," were abolished by 26 Hen. 8, c. 15.

By the statute of Circumspecte agatis, 13 Edw. 1, st. 4, "if 13 Ed. 1, st. 4. a parson demand mortuaries, in places where a mortuary hath Mortuaries been used to be given," in all such cases "the spiritual judge recoverable in shall have power to take knowledge, notwithstanding the king's court. prohibition."

lie

Sir Simon Degge was of opinion, that an action also will now upon the aforesaid statute 21 Hen. 8, c. 6.

But that statute

ecclesiastical