The other charges are for original buildings,

and are the subjects of very different consider

BARDIN V

CALCOTT.

ation. The evidence on the first of these relates 11th July 1789. to the tomb of one Wilson, who was not a parishioner; and the churchwardens have been blamed in the argument, for allowing strangers to be buried there. This is a permission, undoubtedly, which should be sparingly granted, since there can be no absolute claim of that kind; but I think there is enough shewn to prove that the Churchwardens in this parish are authorized to give such leave, since there is a table of fees produced, in which there is one" for the burial of strangers." The clerk says, that Calcott applied to him to be informed as to the fees, which are paid both to the Vicar and to the parish-to the Vicar, of common right, and to the parish, as established by custom. It appears that permission was asked for laying a flat stone, and that the sum of eight guineas was mentioned as the fee.

A question is raised as to the meaning and extent of this permission: No plan was exhibited, and I think it must be understood as for a flat stone. If permission is asked and granted on the usual terms, and the usual fee is paid, it must be interpreted according to the custom of the parish. Witnesses have been examined to prove what the custom is, and none on the opposite side; and I am satisfied that the practice has been, to lay a flat stone, and no more, only with so much support as may be necessary to prevent it from sinking into the ground. It appears that Calcott carried the brick-work higher; the Curate interfered; and the Churchwardens objected, and ordered him not to proceed. Two persons swear that they carried the message to Calcotl,

C

BARDIN . Calcott, forbidding him to proceed further.

CALCOTT.

If

there had been any mistake, therefore, it was now 11th July 1789. explained. There is no evidence that any permission for more than a flat stone was originally given, and if it had, it was not now too late to recede. It has been said, that there was no harm in this; but I think there is a difference between the use of a flat stone, and that of a building of greater height; and the parish has recognized that difference, by permitting the one, and disallowing the other. At any rate, uniformity is injured, and the free access to the different portions of the church-yard is obstructed. It is said that it is not necessary to consult the Ordinary, and that it is troublesome so to do; but such liberties, if not allowed by the custom of the parish, should not be taken without the control of the Ordinary, who is the proper guardian of the rights of the parish against intruders, and also against the avarice of any individuals, who might be tempted, for their own benefit, to grant leave, to the future inconvenience of the parish. On this charge therefore I think it is sufficiently proved that leave was not given for what was done; and if there was any misapprehension, it was corrected at such a time that the party ought to have desisted.

The third charge relates to the monument of Mr. Lambert, and it is said that fuller permission was granted in this instance by the Churchwarden to the widow, to do what she thought fit, which would be very improper, if given by them, and a very undue exercise of their authority. The witness Taylor says, "that he was present when leave "was asked to do the same as in Wilson's monu"ment; that the Churchwarden said it was more "than he had a right to do, but that he would

❝ not

BARDIN V.

CALCOTT.

"not officially interfere;' that the workmen carried "the brick-work a foot higher." The widow says "she applied for leave, paying the usual fee," 11th July 1789. which must be restrained to some definite meaning, and ought to mean nothing else, than that it was for the usual indulgence; and accordingly it appears, "that she actually paid eight guineas," being the usual fee for a flat stone; "that she "went to the Churchwarden, and said, she meant "to do it as in Wilson's monument, and that it was very hard she could not do it as she thought "fit." This does not strictly agree with the account given by Taylor, she says further "that she gave directions to do the same as in Wilson's "monument, and that it appears to her not to be "so high." The other witnesses say, "that it is

66

66

66

higher." From my own personal inspection within these few hours I can say that there is a considerable difference. It is visibly higher. I am sorry to observe such an assertion in the affidavit of this witness. Whatever the permission was therefore, it was exceeded. Calcott was ordered by the Churchwardens to desist, and whatever other orders were given by the party, they ought not to have been regarded.

It appears, then, that there have been two trespasses in this church-yard, which is a consecrated place, entitled to public protection, and in which nothing should be done but under the direction of public authority. We know, indeed, that many things are often done there that are indecorous enough, as the drying of linen, and spinning of ropes, and other practices that are unseemly enough in such places, but which, importing no special or permanent damage, are overlooked with

CALCOTT.

BARDIN V. that sort of laxity which is apt to be exercised upon property of a public nature, and, in which, 11th July 1789. no man possesses a particular interest. It is of public importance, however, that these public rights should be protected, and the offence being proved, it is only necessary to inquire what the sentence ought to be. The two latter charges are proved, and it will be my duty, in the first place, to admonish the party to desist. There is no prayer for any order to pull down, and there would indeed be a difficulty in pulling down without further directions for building up. I think therefore, that I shall best obviate the inconvenience that might ensue to the parish, by confining my admonition to the party to refrain.

On the subject of costs, it is said, that as some of the charges are proved, the promoter is entitled to his costs. But I do not accede to this position, or think that it is just, that if ninety-nine charges are made, and some few, or one only, proved, the party is to be charged with the expences of the whole proceeding *. I shall therefore give a sum nomine expensarum; and in consideration of the length of the case, and of the number of witnessses which the party has examined, and of his general good character, which weighs with me, I shall fix that sum at thirty pounds.

* A similar rule seems to have been held, on the quantum of costs, in the King's Bench in Middleton v. Croft, 2 Strange, 1056, -the case in which Lord Hardwicke delivered the judgment of that Court against the force and effect of the Canons of 1603 as not binding on the Laity.

THE OFFICE OF THE JUDGE PROMOTED BY

BARTON v. WELLS.

Jurisdiction of London, over tablished.

the Bishop of

THIS was a suit of Office promoted by Dr. Bar- 17th Nov. 1789. ton, Rector of St. Andrew, Holborn, against Dr. Wells, for performing divine service and administering the sacraments in Ely Chapel, without licence from the Bishop of London.

JUDGMENT.

Sir William Scott.-This is a proceeding by Dr. Barton, Rector of the parish of St. Andrew, Holborn, against Dr. Wells, for performing divine service, preaching, and administering the sacraments in Ely Place Chapel, without a licence from the Bishop of London. The fact is admitted, and though the form of this proceeding is criminal, the suit is brought for the purpose of trying the civil right, and the real parties may be said to be the Bishop of London, and the Bishop of Ely, or the Grantee of the Crown. In one of these persons the jurisdiction resides; Dr. Barton lays it in the Bishop of London, Dr. Wells in the Bishop of Ely, or in the Grantee of the Crown, though it cannot be in both; and the Counsel for Dr. Wells have argued it almost entirely as for the Grantee, and thereby seem rather to admit that the Bishop of Ely must be excluded. I may add also that the nature of the present proceeding scarcely raises the question of general jurisdiction; since it is founded only on the charge of officiating in the performance of divine service without a licence.

Ely chapel, es

Exemption, of ancient privileges allowed to the Bishops of Ely, in virtue of their

episcopal resi

dence, in Ely

palace, overcontinuing after been transferred.

ruled, as not

the property had