the force of any objections that be made against it. The third Institute leaves the matter at large; but all commentators say that the Ordinary is to judge of the convenience of allowing tombs or monuments to be erected, and that if done without his consent, he has sufficient authority to decree their removal." There is a difference (he said) between a flat stone and that of a building of greater height. In Maidman v. Malpas (c), also, it is laid down by the same Power of learned judge, that the permission of the ordinary is requisite ordinary. before a monument can properly be erected. "It is to his care that the fabric of the church is committed, that it shall not be injured or deformed by the caprice of individuals. The consent of the incumbent is usually taken on such occasions, and especially of the rector for monuments in the chancel. A faculty likewise is required, though it is frequently omitted, under the confidence reposed in the minister, and the ecclesiastical court is not eager to interpose. But when cases are brought before it, it is necessary to inquire whether the thing is proper to be done, and whether the consent of the incumbent has been obtained." In Beckwith v. Harding (d) it was said, that a custom for the churchwardens of a parish to set up monuments, &c. in a church, without either the consent of the rector or ordinary, was bad. In Seager v. Bowle (e), Dr. Addams's note says, the court may be taken to have expressed its final judgment, that no practice can absolutely legalize the erection of a monument without a faculty. It is observed, too, in Maidman v. Malpas, cited above, that a monument, once erected, cannot be taken down without the consent of the ordinary. In Hopper v. Davis (f) it is said the May not be ordinary may order a monument to be taken down, if placed taken down, inconveniently; but the court there intimates that the incum- illegally bent's consent will usually satisfy the ordinary. unless erected. In Sharpe and Sangster v. Hansard (g), the court granted a Laying faculty to lay flat upright head-stones and foot-stones, inserting stones flat. a clause that no expense should fall on individuals. This was under particular circumstances. The plan had been adopted by the unanimous report of a committee, chosen by the vestry, and was opposed only by one individual, who failed in proving that it would be accompanied by any substantial inconvenience. In Bulwer v. Hase (h), a rector was cited to show cause why Grant of the ordinary should not grant to a parishioner a faculty for faculty ground for stopping up a window in the church, against which it was pro- appeal, not posed to erect a monument; to the granting of which the rector for prohibidissented; notwithstanding which the court below were proceeding to grant the faculty, with the consent of the ordinary. This was holden to be no ground for a prohibition, but mere 1 Consist. p. 205. (d) 1 B. & Ald. p. 508. (e) 1 Add. p. 541. (f) 1 Lee, p. 640. 3 Hagg. Eccl. p. 335. (h) 3 East, p. 217. tion. Inscriptions on tombstones. Burial board matter of appeal (i), if the rector's reasons for dissenting were improperly overruled. In Keet v. Smith the incumbent objected to the proposed inscription on a tombstone, and on application being thereupon made by the father of the deceased for a faculty, the chancellor of the diocese and the Court of Arches refused it; but the Privy Council, seeing nothing objectionable in the inscription, directed it to issue (j). The ordinary's power to regulate inscriptions on tombstones in cemeteries and in consecrated grounds provided by burial boards is specially assured by 10 & 11 Vict. c. 65, s. 51, and 15 & 16 Vict. c. 85, s. 38 (k). Where a burial board had granted a widow space for a regulations. private grave in which her husband was subsequently interred, it was holden that the board could not by a subsequent regulation give itself the exclusive power of planting flowers, and exclude a gardener employed by the widow (). But in a similar case where it had always been the practice of a board to refuse to allow glass shades and wire frames, the board was holden to be warranted in removing one, and the case previously cited was commented on as going very far (m). The analogy of the power of the ordinary over graves in consecrated grounds was much relied on in these cases. They are, therefore, important here as incidental to decisions on ecclesiastical law. Action of trespass for removing a tombstone. Punishment for the same offence in The courts of common law will in some cases punish, as well as the ecclesiastical courts, the removal of a tombstone. In Spooner v. Brewster (n), trespass was maintained for taking away a tombstone from a churchyard, and obliterating an inscription made upon it, at the suit of the party by whom it was erected, although the freehold of the churchyard is in the parson; as the property in a tombstone vests in the person who erects it, or in the heirs of the deceased in whose memory it is set up. It was laid down by Lord Stowell in Hutchins v. Denziloe and Loveland (0), that a churchwarden may be sued in the ecclesiecclesiastical astical court, if, without obtaining a faculty, he gives orders for the removal of a monument or a dead body. court. Vaults in churches and churchyards. The court will not compel by mandamus a rector to bury in a vault (p). A grant by a rector to an individual of the exclusive right of burial for himself, his family, his friends, in a vault under the church, if it can be made at all, must be by deed and not by parol, as it would be an easement arising out of land; but it would seem that no such grant can be made by the rector, (i) That such an appeal will lie, (j) L. R., 4 Adm. & Eccl. p. 398; (m) McGough v. Lancaster Burial Board, C. A., 21 Q. B. D. p. 323. (n) 10 Mo. p. 494; 3 Bing. p. 136; 2 C. & P. p. 34. (0) 1 Consist. p. 172; see Adlam v. Colthurst, L. R., 2 Adm. & Eccl. p. 30. (p) Ex parte Blackmore, 1 B. & Ad. p. 122. but only permission accorded to bury there at each particular time. If such a grant can be granted at all, it must be by faculty to a parishioner, and annexed to a mansion within the parish (q). In Magnay v. The Rector, &c. of St. Michael (r), application was Faculty for made for a faculty "setting apart, appropriating, and confirming a vault. a certain vault (with the entrance thereto), many years ago made or built of brick, under the north aisle, and extending under a pew, and next to the chancel of the parish church of St. Michael, Paternoster Royal, as and for a burial-place for the interment of the bodies of the said Christopher Magnay, and of his family for ever, exclusive of all others; and also for the removal of the corpses of the said Christopher Magnay, Jane Magnay, his former wife, and of his two sons respectively deceased, from the general vault in the said parish church, where the same now remain, into the said private vault, the same having never been hitherto appropriated." And there being no opposition the application was granted. The court observed,-"that the circumstances under which the present application was made, afforded a presumption that there was sufficient burial room in the parish to allow of this appropriation. . . . . The faculty, however, must be limited, in the same manner as faculties for pews, 'to the use of the family as long as they continue parishioners and inhabitants.'" .... In the observations as to sufficient burial room the court was referring to an earlier case (s) where the court said, that it would scruple to decree such a faculty, without being satisfied that it is not likely to be generally prejudicial to the parish, even though its issue be unopposed, either on the part of the parish or of that of any particular parishioner. Lay rector's rights as to the erection chancel. In Rich v. Bushnell (t), the following points seem to have been established as to the lay rector's rights of erecting monuments, &c. in the chancel. 1. That he is not entitled to erect a monu- of vaults and ment, or affix a tablet, or construct a vault, without the leave of tablets in the the ordinary; for though the chancel is his freehold, it is subject to the use of the parishioners, the guardian of whose rights is the ordinary. 2. That he must satisfy the ordinary that these rights will not be impaired. 3. That the leave of the lay rector must precede the application for the faculty. 4. That the vicar Vicar's has no power of interposing an absolute veto, but may show rights. cause, against the issue of the grant. The vicar has no fee for interments in the chancel of common right. church. It is doubtful (says Sir John Nicholl in the same case) whether Vicar's rights the consent of the vicar is necessary to the construction of a vault, in body of the or to the affixing of a tablet even in the body of the church [that is when a faculty is granted], or whether he has in such a (9) Bryan v. Whistler, 2 M. & R. &c. of Northfleet, 3 Add. p. 14. p. 318; 8 B. & C. p. 288. (r) 1 Hagg. Eccl. p. 48. Rosher v. The Churchwardens, See, however, Re Sargent, 15 P. D. p. 168. (t) 4 Hagg. Eccl. p. 164. case a claim to a fee unless when established by a special custom. The learned judge also expressed his opinion that vaults were highly objectionable in the chancel or in the church, but that the affixing of tablets was rather to be favoured than discouraged. If a tomb stone contain an improper uncanonical inscription, it may be removed. SECT. 8.-Prayers for the Dead. In the cause of the office of the judge promoted by Breeks v. Woolfrey, Sir Herbert Jenner said, "It was not denied, nay it was admitted, that if the inscriptions were of the character attributed to them in the citation, namely,-' contrary to the articles, canons and constitutions, and to the doctrines and discipline of the Church of England,' no person had a right to erect a tombstone, with such inscriptions impugning the doctrines of the Church of England, and that a person so offending is liable to be punished, and the tombstone to be removed" (u). The inscription was, "Pray for the soul of J. Woolfrey;" and the judge decided in a very elaborate judgment that such an forbidden by inscription was not illegal, as by no canon or authority of the church in these realms had the practice of praying for the dead been expressly prohibited, and the inscription on Bishop Barrow, in the cathedral of St. Asaph in 1680, “O vos transeuntes in domum Domini, in domum orationis, orate pro conservo vestro, ut inveniat misericordiam in die Domini," was much relied upon both by the advocate for Woolfrey and the judge (x). Prayers for the dead not expressly our church. In college chapels. Elizabeth's Latin Prayer Book has prayers for the dead (y). Prayers in the nature of prayers for the dead are used on special occasions in the chapels of some colleges at Oxford, and are, or were till lately, used at Trinity College, Dublin (≈). 43 & 44 Vict. After passing SECT. 9.-The Burial Laws Amendment Act, 1880. Sect. 1. "Any relative, friend, or legal representative having the charge of or being responsible for the burial of a deceased person may give forty-eight hours notice in writing, indorsed on the outside Notice of Burial,' to, or leave or cause the same to be left at the usual place of abode of the rector, vicar, or other (u) See Keet v. Smith, L. R., 4 Adm. & Eccl. p. 398; reversed on appeal, 1 P. D. p. 73. (x) 1 Curt. p. 887. See Egerton v. All of Odd Rode, (1894) P. p. 15. (y) See 1 Cardwell, Doc. Ann. p. 280. (z) Irish Prayer Book of 1723. Vide supra, p. 467. without the incumbent, or in his absence the officiating minister in charge of graveyard any parish or ecclesiastical district or place, or any person ap- rites of the pointed by him to receive such notice, that it is intended that Church of such deceased person shall be buried within the churchyard or England. graveyard of such parish or ecclesiastical district or place without the performance, in the manner prescribed by law, of the service for the burial of the dead according to the rites of the Church of England, and after receiving such notice no rector, vicar, incumbent, or officiating minister shall be liable to any censure or penalty, ecclesiastical or civil, for permitting any such burial as aforesaid. Such notice shall be in writing, plainly signed with the name and stating the address of the person giving it, and shall be in the form or to the effect of Schedule (A.) annexed to this act (a). "The word 'graveyard' in this act shall include any burial ground or cemetery vested in any burial board, or provided under any act relating to the burial of the dead, in which the parishioners or inhabitants of any parish or ecclesiastical district have rights of burial; and in the case of any such burial ground or cemetery, if a chaplain is appointed to perform the burial service of the Church of England therein, notice under this act shall be addressed to such chaplain, but the same shall be given to or left at the office of the clerk of the burial board, if any, in whom any such burial ground or cemetery may be vested: Provided also, that it shall be lawful for the proprietors or directors of any proprietary cemetery or burial ground to make such byelaws or regulations as may be necessary for enabling any burial to take place therein in accordance with the provisions of this act, any enactment to the contrary notwithstanding." Sect. 2. "Such notice, in the case of any poor person deceased, Paupers. whom the guardians of any parish or union are required or authorized by law to bury, may be given to the rector, vicar, or other incumbent in manner aforesaid, and also to the master of any workhouse in which such poor person may have died, or otherwise to the said guardians, by the husband, wife, or next of kin of such poor person, who, for the purposes of this act shall be deemed to be the person having the charge of the burial of such deceased poor person; and in any such case it shall be the duty of the said guardians to permit the body of such deceased person to be buried in the manner provided by this act." Sect. 3. "Such notice shall state the day and hour when such Time of burial is proposed to take place, and in case the time so stated burial to be be inconvenient on account of some other service having been, to variation. stated, subject previously to the receipt of such notice, appointed to take place (a) In the case of a consecrated ground belonging to a burial board, the board has no duty to see that the rector, vicar, &c. gets the notice; but it must not knowingly permit burials where no such notice has |