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Monuments to be erected by Faculty.

Quare, as to

Flat Stone?

Power of Or

dinary.

to bury the dead, yet it is not necessary to erect monuments; and after the soil hath been broken for interring the dead, the grass will grow again, and continue beneficial to the incumbent; but after the erection of a monument, there ceaseth to be any further produce of the soil in that place. And if the incumbent's leave is necessary for the erecting a monument, it seemeth that he may prescribe his own reasonable terms; or if an accustomed fee hath been paid, that such custom ought to be observed.

[In Bardin, &c. v. Calcott (t), where the Office of the Judge was promoted, Lord Stowell said, as to buildings of height the authority is reserved to the ordinary, and permission ought not to be granted without his authority in some manner interposed. The proper mode, strictly speaking, is to apply to the ordinary for a faculty (u), who calls on all persons having a right to show cause why it should not to be done, and hears and determines on 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 says) between a flat stone and that of a building of greater height. In Maidman v. Malpas, also, it is laid down by the same learned judge, that the permission of the ordinary is requisite 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 incumbents 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 obWhose Contained (x). In Beckwith v. Harding (y) it was said, that a sent should be 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, 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(2) it is said, the ordinary may order a monument to be May be taken taken down, if placed inconveniently; but the court here inti

asked.

down, if illegally erected.

(t) 1 Consist. Rep. 145.

(u) [See Church and Practice.
(r) [1 Consist. R. 208.]

(y) [1 Barn. & Ad. 508.]
(*) [Sir G. Lee's R. i. 640.]

mates, that the incumbent's consent will usually satisfy the ordinary. In Sharpe and Sangster v. Hansard (a), the court granted a faculty to lay flat, upright head-stones and footstones, inserting 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. Huse (b) a rector was cited to show cause why the ordinary should not grant to a parishioner a faculty for stopping up a window in the church, Refusal of against which it was proposed to erect a monument; to the Faculty granting of which the rector dissented, notwithstanding which Appeal, not the court below were proceeding to grant the faculty, with the tion. consent of the ordinary: held, to be no ground for a prohibition, but mere matter of appeal, if the rector's reasons for dissenting were improperly overruled.

ground for

for Prohibi

Trespass for

[The courts of common law will in some cases punish, as Action of well as the Ecclesiastical Courts, the removal of a tombstone. removing a In Horner v. Brewster (c), trespass was maintained for taking Tombstone. 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 right to a tombstone vests in the person who erects it, or in the heirs of the deceased in whose memory it is

for the same

set up. [It was laid down by Lord Stowell in Hutchins v. Denziloe Punishment and Loveland (d), that a churchwarden may be sued in the Offence in Ecclesiastical Court, if, without obtaining a faculty, he gives Ecclesiastical orders for the removal of a monument or a body.

Court.

Churches and

[The court will not compel by mandamus a rector to bury Vaults in in a vault (e). A grant by a rector to an individual of the ex- Churchyards. clusive 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, 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 (f). In Magnay and others v. Rector and Parish of St. Michael (g) the principles which guide the Ecclesiastical Court in granting a faculty for the construction of a vault, were fully set forth in the proceedings and the judgment, which are here inserted at length.

(a) [3 Hagg. Rep. 50.]

(b) [3 East, 217.]

(e) [1 Barn. & Adolp. 122.]
(ƒ) [Bryan v. Whistler, 2 M. & R.

(c) [10 Moore, 494; 3 Bing. 136; 318; 8 B. & C. 288.]

2 C. & P. 34.]

(d) [1 Consist. Rep. 172.]

(g) [1 Hagg. R. 48.]

Proceedings in the Eccle

siastical Court
to obtain a

Faculty for a
Vault.

["On Motion. This was a business of granting a licence or faculty to the executors named in the last will and testament of Christopher Magnay, deceased, late alderman for the ward of Vintry, and late a parishioner and inhabitant of the parish of St. Martin Vintry, London, for setting apart, appropriating, and confirming 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.'

"A decree, with the usual intimation, had issued under seal of the court, citing the rector, churchwardens, and parishioners of the said two united parishes of St. Michael, Paternoster Royal, and St. Martin Vintry, in special, and all others in general, to appear, and show cause why such licence or faculty should not be granted. This decree was publicly read in the parish church of St. Michael, Paternoster Royal, and was returned into court, duly certified as to the execution thereof, on the first session of this term.

["A certificate, under the hands and seals of the rector and churchwardens of the said united parishes, consenting to the appropriation of the vault, had also been filed in the registry: and an affidavit of the parish clerk was exhibited, setting forth that four persons only had been interred in the vault, for which a faculty was prayed, three of whom were neither parishioners. nor inhabitants of either of the said united parishes; and that the vault had never been appropriated: which was confirmed by a search made among the records in the registry of the peculiars.

["Haggard moved for the faculty.

Per Curiam.

"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 (h). In the city, generally, there was no want of burial accommodation, particularly in the case of united parishes, and the fact of this parish receiving strangers into its vaults, led also strongly to such a conclusion. The faculty, however, must be limited, in the same manner as faculties for

(h) [See the case of Rosher v. The Churchwardens, Parishioners, &c. of Northfleet, 3 Add. 14.]

pews, to the use of the family as long as they continue pa-
rishioners and inhabitants;' and, in this instance, it must also
contain a clause that the bodies, already deposited in the vault,
shall not be removed.
Faculty decreed (i)."

[In the case cited, 3 Add. 14, 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.

Rights of the
as to the
Vaults and
Tablets in the

Lay Rector

erection of

Chancel.

[In Rich v. Bushnell (k), 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 monument, or affix a tablet, or construct a vault, without the leave of 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 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 has no power of interposing an absolute veto, Vicar's but may show cause against the issue of the grant. The vicar has no fee for interments in the chancel of common right. [It is doubtful (says Sir John Nicholl in the same case) Vicar's whether the consent of the vicar is necessary to the construc- Body of the tion of a vault, or to the affixing a tablet even in the body of the church, or whether he has in such a 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.

66

Rights.

Rights in

Church.

stone contain

Inscription, it

[In the recent cause of the office of the judge promoted by If a TombBreeks v. Woolfrey, Sir Herbert Jenner said, "It has not been an improper contended, indeed it has been admitted, that if the inscriptions Uncanonical be of the character attributed to them in the citation, namely, may be re'contrary to the articles, canons and constitutions, and to the moved. doctrines and discipline of the Church of England,' no person has a right to erect a tombstone, with such an inscription impugning the doctrines of the Church of England, and that a person so offending is liable to be punished, and the stone removed." The inscription was, Pray for the soul of J. Woolfrey;" and the judge decided in a very elaborate judgment that such an 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 (k) [4 Hagg. 164.]

(i) [1 Hagg. Eccles. Rep. 48.]

Prayers for expressly for. bidden by our

the dead not

Church.

[ 274 ]

much relied upon both by the advocate for Woolfrey and the judge (1).-ED.]

Calendar-see Kalendar.

Calumny (Oath of)-—see Oaths.

Cambridge-see Colleges.

Canon.

FOR the office of canons, in cathedral or collegiate churches, see Deans and Chapters.

Capa.

CAPA, the cope, was one of the priest's vestments; so called, as it is said, a capiendo, because it containeth or covereth him all over (m).

Carthusians--see Monasteries.

Casula.

CASULA, the chesible, was a garment worn by the priest, next under the cope; and is said to have been so called, as being a kind of cottage (as it were) or little house, covering him (n).

Catechism.

1. BY Can. 59. "Every parson, vicar, or curate, upon every [275] Sunday and holiday, before evening prayer, shall for half an hour or more, examine and instruct the youth and ignorant persons of his parish, in the Ten Commandments, the Articles of the Belief, and in the Lord's Prayer; and shall diligently

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