How far cognizable by the ecclesiastical court. where the suit by the rector and churchwardens of St. Botolph's, Aldersgate, was for the customary fee of burying in the chancel there, because the person died in their parish, and was buried in the chancel elsewhere. For though a prohibition was granted because the custom was unreasonable, yet that unreasonableness (he says) was grounded upon the person's being only a stranger, and happening to die in the parish. For so the report itself expresses the ground of the prohibition. "This custom is against reason, that he who is no parishioner, but may pass through the parish, or lie in an inn for a night, should be forced to be buried there, or pay as if he were." Which is in effect a recognition of the right, in case the party deceased has dwelling in the parish, and is a parishioner (u). Mr. Fraser remarks that this does not so well agree with the last words of the recited case, which supposes it to be unreasonable for a man to pay twice for his burial. The proportion of fees due for the burial of persons, whether to the incumbent or churchwardens, whether for burying in or out of the parish, depends upon the particular usage and custom of each parish respectively. For as to the incumbent for burying, the foundation of the fee was voluntary, and the obligation or necessity of paying arises from custom; which is the ground of what is before observed out of Lindwood. But although the rule of the canon law is, that in case of denial of the customary fee justice is to be done by the ordinary, and though the books of the common law allow this to be in its nature a matter properly of spiritual cognizance, yet it is a very great abatement from that allowance that the temporal courts reserve to themselves the right of determining, first, whether there is such a custom, in case that is denied; and, secondly, whether it is a reasonable custom in case the custom itself is acknowledged. Upon the first of these heads, a prohibition was granted in the case of Andrews v. Symson, in 27 Car. 2. And we find other prohibitions also granted, as where the church of Westminster, for burying in the abbey, demanded 50l. and the cathedral of York 57. over and above the common fees (x). But here it is to be observed that in the foregoing case of Andrews v. Symson, the demand was a fee of four nobles for a parishioner, and of four marks for a stranger; which proportion and difference were not excepted against by the court as unreasonable, but (as has been said) the prohibition went only because the custom was denied (y). 66 In Gilbert v. Buzzard (z), Lord Stowell said, "Very ancient canons forbid the taking of money for interment, upon the notion that consecrated grounds are among the res sacra," and that money payments for them were therefore acts of simoniacal complexion; but this has not been the way of considering the matter since the Reformation, for the practice goes up at least nearly as far; it appears founded upon reasonable considerations, and is subjected to the proper control of an authority of inspection. In populous parishes, where funerals are very frequent, the expense of keeping churchyards in an orderly and seemly condition is not small, and that of purchasing new ones, when the old ones become surcharged, is extremely oppressive. To answer such charges, both certain and contingent, it surely is not unreasonable that the actual use should contribute when it is called for. At the same time, the parishes are not left to carve for themselves in imposing these rates; they are submitted to the examination of the ordinary, who exercises his judgment and expresses the result by a confirmation of their propriety in terms of very guarded caution. It is perhaps not easy to say where the authority could be more properly lodged or more conveniently exercised." distinct from right of The distinction between the right of mere interment and Right of of erecting any memorial over the interred, is clearly stated interment in Bardin v. Calcott (a). The churchyard as well as the church (says the same great authority) is the freehold of erecting any the minister, subject to the rights of the parishioners for memorial. interment. Ancient custom often annexes fees for erecting a stone or anything else by which the grave may be protected, and the memory of the person interred, preserved. It is no general common law right; but custom will interpose, and where it is shown to be customary, such practice will be supported. In Cawthorn v. Andrews (b), it is laid down that the Fees in the vicar is not entitled, either by the common or canon law, to neighbourhood demand a fee for burying in the churchyard, although such of London. a fee may be due by special custom. In 2 Shower, 134, it is said, that in the neighbourhood of London, the churchwardens are entitled to the money for burying in the church or churchyard, the parson's right being confined to the chancel. In Gilbert v. Buzzard, Lord Stowell says, (a) 1 Consist. Rep. 14. (b) Willes, 536. (y) Gibs. 453. () 3 Phill. 335; 2 Consist. Rep. 338. P. VOL. I. 3 K Fees in the of London. "An objection was taken to the application of the fee as neighbourhood stated in the table. The objection to the incumbent's proportion seems entirely to forget that by the general law it is the incumbent who has the freehold of the soil of the churchyard, though provided originally by the parish. By acquiescence, confirmed by usage, parishes in this town and neighbourhood have acquired concurrent rights, into the validity of which it is quite unnecessary and improper for me to inquire," &c. In Littlewood v. Williams (b), it was proved that a practice had prevailed in the parish of Hendon, during the incumbency of several vicars, that upon the burial of any stranger certain fees should be paid, of which the vicar took one moiety, and the churchwardens the other for the use of the poor. The fees were paid to the sexton, who paid over the moieties to the use of the respective parties. A new vicar refused to accede to this arrangement; he buried several strangers, and made the sexton pay over the entire fees to himself, and it was holden that the churchwardens might recover one moiety to their use in an action for money had and received. 6 & 7 Will. 4, c. 86. Dr. Spry's 6 & 7 Will. 4, c. 86, enacts by sect. 49, "That nothing herein contained shall affect the registration of baptisms or burials as now by law established, or the right of any officiating minister to receive the fees now usually paid for the performance or registration of any baptism, burial, or marriage." In January 18, 1839, Dr. Spry proceeded against the guardians of the poor in Marylebone, for refusing to pay the burial fees of paupers to the rector of the parish, in the Consistory Court of London. The judge said, that "it was clear that the ecclesiastical courts had been permitted to exercise some jurisdiction on the subject, because the courts of common law, where prohibition had been moved for, had not granted it, on the general ground that these courts were wholly incompetent to hold pleas on the subject-matter but on special grounds (c). Prohibition has been granted because the fee was not accustomed and certain, and the ecclesiastical court would not try the custom where it was denied. The granting prohibition for special reasons establishes the existence of the jurisdiction which is recognized by the statute Circumspectè agatis. This court is allowed to enforce fees to clergymen for spiritual duties due by custom, the duty being actually performed (d). By customary fees are meant such as have (b) 6 Taunt. 276; 1 Marsh. 389. (c) Burdeaux v. Lancaster, 1 Salk. 332; Topsal v. Ferrers, (d) 3 Bl. Com. 90. existed so long that their origin cannot be traced. The foundation of all such is that they were originally voluntary. Customary burial fees of this nature may be sued for here, at least until the custom has been denied, and prohibition moved for propter defectum triationis. The subject, however, is not without difficulty, for no such suit has been brought for a century; and I can find nothing in the books as to one liable for these fees." In this case the judge dismissed the suit, because the case was governed by particular acts of parliament, and a preliminary remedy by mandamus ought to have been had to compel the vestrymen to fix the table of rates and fees. Lord Stowell, acting as chancellor for the diocese of London, adjusted the table of burial fees in St. Andrews, Holborn (e). In the case of Spry v. Gallop (f), it was holden that No action at burial fees should be sued for in the ecclesiastical courts law. and cannot be recovered in those of common law. new As to questions between the incumbents of old and parishes, which have the right to such fees, see the chapter on the Division of Parishes, and the cases of Edgell v. Burnaby (g), Vaughan v. South Metropolitan Cemetery Company (h), and Champneys v. Arrowsmith (i), there cited. Fees in new parishes. By 10 & 11 Vict. c. 65, the following provisions are Fees under made with respect to payments to incumbents of parishes The Cemeor ecclesiastical districts, and to parish clerks, in compen- Act. sation for their fees. teries Clauses Sect. 52. "The company shall, on the burial of every Payments to body within the consecrated part of the cemetery, pay to incumbents the incumbent for the time being of the parish or ecclesi- from which of parishes astical district from which such body shall have been bodies are removed for burial such sums, if any, as shall be prescribed brought. for that purpose in the special act.' account of Sect. 53. For ascertaining the amount of the pay- Company ments, if any, to be made to the incumbents of the several shall keep parishes or districts aforesaid, the company shall cause interments. books to be kept, and entries to be made therein of the names of all persons whose bodies are buried within the consecrated part of the cemetery, and the names of the parishes or districts from which such bodies respectively have been removed, and the manner of their burial within the cemetery (distinguishing whether in a place of exclu (e) Gilbert v. Buzzard, 2 Consist. Rep. 338. (ƒ) 16 M. & W. 716 (1847). (g) 8 Ex. 788. (h) 1 John. & Hem. 256. Account of payments due of parishes to to incumbents be rendered half-yearly. Fees to be paid to incumbents of yearly. sive burial or otherwise), with the date of such burial; and such books shall be at all reasonable times open to the inspection of the incumbents for the time being of the said several parishes or districts, or any person employed by them, without fee or reward." Sect. 54. "The company shall on the 25th of March and 29th of September in each year, or within one month after each of the said days, deliver to the person who is the incumbent of any parish or ecclesiastical district on that day, or to his executors or administrators, on demand made within the said month, an account of the sums, if any, payable in respect of bodies removed for burial within the consecrated part of the cemetery as aforesaid from such parish or ecclesiastical district during the half-year next preceding the said 25th of March or 29th of September, as the case may be." Sect. 55. The sums payable by virtue of the special act shall be paid half-yearly on the 25th of March and the parishes half- 29th of September, or within one month afterwards, to the persons who are the incumbents of the parishes or ecclesiastical districts in respect of which the same are payable on such 25th of March and 29th of September respectively, or the executors or administrators of such incumbents; (that is to say,) such sums as accrue between the 29th of September and the 25th of March following, shall be paid to the person who is the incumbent on the 25th of March, and such sums as accrue between the 25th of March and the 29th of September following, shall be paid to the person who is the incumbent on the 29th of September; and if any such sums be not paid to the party entitled to receive the same within the period hereinbefore limited for the payment thereof, such party may recover the same, with full costs, by action of debt or on the case, any court having competent jurisdiction." Payment to be made to the incumbent for the time being, who is to ac count with his predecessor. in Sect. 56. "If any incumbent of any parish or district in respect of which sums are payable by the company by virtue of the special act ceases to be incumbent, by cession, death, or otherwise, between the said two half-yearly days of payment, such incumbent shall be entitled to receive so much of the sum payable at the half-yearly day which happens next after he ceases to be incumbent as has accrued from the last preceding half-yearly day, or from the time when such incumbent became first entitled to receive the fruits of his living, as the case may require, up to the day at which he ceased to be incumbent, and the incumbent of any parish or district who receives from the company any sum to a part of which any preceding in |