Ex.D. Matthews v. Jeffrey 1880 ment in support of this contention is that in one case which was cited a grant was made to "a family" in this form. It does not seem to be clear whether any member of the family might be buried under such a grant without the consent of the personal representative of the person to whom the grant was made, so that even if the common form of grant is to "a family" (which perhaps it is), it is not shown who is to regulate the right of burial: no doubt the rector has the control in parochial churchyards, and in this case the burial board would stand in the rector's place, but as regards the right of using the burial spaces, it would seem far better to have it vested in one person than that there should be a roving right for any member of a family to bury any other member of the family in them. Faculties with respect to pews, to which an analogy has been suggested, have a different object, namely, to exclude the rights of others than the grantee. Another analogy is suggested from the laws relating to cemeteries where the grant of a right to bury has been held a personal right. The sections from the Cemetery Acts which were incorporated in the earlier *Burial [294 Acts are, as it has been pointed out, omitted from the acts applicable here, but whether they would apply or not in the absence of a special grant, to heirs, it is not necessary for me to decide. The form of the grant has, in my opinion, decided who has the right in perpetuity in this case, and the plaintiff as heir-at-law has a title which excludes any personal right. Then it is said that the jury found that the money for the purchase was part of the personal estate of Edward Matthews, and therefore it is argued that all persons interested in that estate may claim a right to burial on the analogy of equitable rules as to trusts; but, first, I do not find that the defendant was a member of Edward Matthews' family, though his wife was, and his right through her should have been pleaded if it was to be set up; and secondly, it is doubtful if his wife could sustain a claim by reason of the expenditure of her father's property on the grave, for an executor must not spend more on a grave than is required for the burial of the deceased person. It would be a wrongful conversion, and before the right so purchased can be substituted as part of the trust estate all persons who are entitled to the assets must elect to take it in substitution, and no such election is shown here. Therefore the plaintiff as heir-at-law is entitled to judgment, but I grant an injunction only as to all future interference, and as regards the burial of the defendant's child, if I am to give any relief, I 1880 Matthews v. Jeffrey. Ex.D. give damages under Lord Cairns' Act to the amount of one shilling. Judgment accordingly. Solicitors for plaintiff: Learoyd, Learoyd & Peace, for A. Challinor, Hanley. Solicitors for defendant: Llewellyn, Ackrill & Hammack, for Llewellyn & Ackrill, Tunstall. See 12 Eng. Rep., 656 note; 18 id., 426 note; 19 Amer. Law Reg. (N.S.), 1, 65; 10 Central L. J., 303, 325. The deceased, at her request, and with the concurrence of all her children, except one, was buried in her sister's lot: Held, that one child, or his executors, could not remove her remains to another place of sepulture: Lowrie Plitt, 11 Phila. R., 303. . If a husband has not freely consented to the burial of his wife in a lot of land owned by another person, with the intention or understanding that it should be her final resting place, a court of equity may permit him, after such burial, to remove her body, coffin and tombstones to his own land, and restrain that person from interfering with such removal: Weld v. Walker, 130 Mass., 422; 14 Amer. Law Rev., 57, 59 note; 4 Cinn. Law Bull., 1085. In a contention between the widow of the deceased (who was his second wife) and his only son and heir (being the child of his first marriage), as to the disposition of his remains, after taking into consideration all the circumstances: Held, that the claim of the son was to be preferred: Snyder e. Snyder, 60 How. Pr., 368. The question as to the right to select the place of burial of deceased must be solved upon equitable grounds. While there is property in the burial lot, in the monuments, in the ornaments and decorations of the deceased or his grave, there is none in the remains themselves. Since the common law cannot protect or bestow them as property, or afford an adequate remedy in cases which sometimes occur, equity will be invoked to grant such protection and give such remedies as seem to be required by the circumstances, and are in consonance with the feelings of mankind; the person having charge of the remains holds them as a sacred trust for the benefit of all who may, from family ties or friendship, have an interest in them; in case of a contention, the court should assume an equi table jurisdiction over the subject, somewhat in analogy to the care and custody of infants, and make such a disposition as should seem to be best and right under all the circumstances. Where a physician brought an action for services in which the defence of malpractice was set up. After burial, the father of the child allowed a physician to exhume the remains and a portion of the thigh bone to be removed to be used as evidence on the trial of the question of malpractice, after removal of the bone, returning the body to the grave: Held, that the removal of the body from the grave was not "for the purpose of dissection or from mere wantonness," as these terms were used in the statute (3 R. S., 6th ed., 965), and was not an offence against public decency: Rhodes v. Brandt, 21 Hun, 1. Where one pays for a plat of ground in a cemetery and takes a receipt that he had paid therefor, the relative situation of the parties and the surrounding circumstances are to be considered. Such receipt is not a conveyance nor a grant, and does not vest the title of the plat in him. The receipt is simply a certificate of the right of the purchaser to use the lot for burial purposes only, subject to and in conformity with the established rules and by-laws of the corporation, so far as they are not in violation of law. Where a party pays for a burial lot and takes such a receipt, it is with the tacit understanding that it is subject to such rules and by-laws. If such rules and by-laws, of a Catholic cemetery, forbid the burial in consecrated ground of one who is a member of a masonic fraternity, the holder of such certificate, or one representing him, cannot by mandamus compel the cemetery association to allow the burial of the body of a mason in the lot: Ex.D. Matthews v. Jeffrey. People ex rel. Coppers v. Trustees, etc., 21 Hun, 184, reversing 58 How. Pr., 55, 7 Abb. N. C., 121. An appeal to the Court of Appeals was dismissed June 21, 1881, 23 Alb. L. J., 520. The owner of a lot in Greenwood Cemetery cannot mortgage it after he has interred the dead of his family therein: Lantz e. Buckingham, 4 Lansing, 484, distinguished. A mortgage of a cemetery lot is not authorized by L. 1850, c. 152, relative to Greenwood Cemetery. The mortgagor may maintain an action to prevent the mortgagee of such a lot from interfering with the bodies interred therein, and also to have the mortgage and the several transfers thereof declared void and cancelled, and the mortgagor's name restored to the records of the cemetery as owner: Thompson v. Hickey, 8 Abb. N. C., 159; S. C., 59 How., 434. An act of assembly, in providing for the removal of dead bodies from the burial grounds of religious societies, directed that no application should be made there for "except in pursuance of the wishes of a majority of the members of such society or church, expressed at a church election held for that purpose, after two weeks' public notice." Held, that the majority intended by the act was a majority of those present and voting at such election, and that those who did not attend must be presumed to have assented: Craig r. First Presbyterian Church, etc., 88 Penn. St. Rep., 42; S. C., 32 Amer. Rep., 417424 note. The personal representative of a deceased is personally liable on a contract made by him for the burial of 1880 deceased, attorney and counsel fees, etc.; 18 Eng. R., 428 note; Barker v. Kunkel, 3 Leg. Adviser, 54, Appellate Court, Ills. And even when the estate is insolvent, the expense of a burial suited to the condition of the decedent during life will be allowed such representative: Wilson v. Staats, 33 N. J. Eq., 524 and note. See also Schoedel v. Reibolt, 33 N. J. Eq., 534. As to what expenses for burial, mourning for family, post-mortem, tombstones, etc., may be allowed; when father, relative, etc., liable, see Mr. Stewart's note to Wilson . Staats, 33 N. J. Eq., 534. A covenant against use as a cemetery is not an incumbrance on the title of a city lot as between vendor and purchaser. Nor is a general covenant against nuisances, even though so vague as perhaps to invite unfounded litigation: Floyd v. Clark, 7 Abb. N. C., 136. A clergyman and one of his sons having been buried in a spot adjacent to, and in front of, the parish church, where the minister had his burial place ; and the church having been transported to another part of the parish; and the area, with the burial place, having been excambed (exchanged) and conveyed to one of the heritors, who included them in his pleasure grounds: Held (affirming the judgment of the Court of Session), that a son of the clergyman was entitled to have the graves protected by a fence; and that he and the other near relations were entitled to visit the graves at all proper times: Mansfield . Wright, 2 Shaw (Sc.), H. L., 104. 1880 Credit Co. v. Pott. (C.A.) Ex.D. 2951 [6 Queen's Bench Division, 295.] Dec. 21, 1880—(C. A.), Ex.D. [IN THE COURT OF APPEAL.] *THE CREDIT COMPANY V. POTT. Bill of Sale— Bills of Sale Act, 1878 (41 & 42 Viet. c. 31), s. 8—Statement of Consideration. A. being indebted to B., gave him a bill of sale to secure the sum of £7,350, which, on stating the accounts between them, was found to be the balance due, and by such bill of sale this sum was to be paid by A. with interest on demand in writing. The bill of sale recited that B. had agreed to lend A. £7,350, and the consideration for such bill of sale was stated therein to be £7,350 then paid by B. to A.: Held, that the bill of sale truly set forth the consideration for which it was given so as to satisfy s. 8 of the Bills of Sale Act, 1878 (41 & 42 Vict. c. 31), although no money in fact passed from B. to A. at the time the bill of sale was given. THIS was an interpleader issue to try the right, as between the plaintiffs and the defendant, to certain goods which had been seized in execution at the suit of the defendant whilst they were in the possession of Augustus Albert Smith, the execution debtor. The goods had been assigned to the plaintiffs by the said A. A. Smith by a bill of sale dated the 21st of January, 1879, and duly registered under the Bills of Sale Act, 1878 (41 & 42 Vict. c. 31), and the question was whether the consideration for which it had been given was sufficiently set forth as required by s. 8 of that act. The circumstances under which it was given were the following There had during several years been several loans and advances of money by the plaintiffs to the said A. A. Smith, in respect of which bills of sale had been given and renewed from time to time to avoid registration. Shortly before the bill of sale in question was given the parties met, and the amount due from the said A. A. Smith to the plaintiffs, after giving credit for payments, was ascertained to be the sum of £7,350, besides £24,000 for which the plaintiffs held security, and a further sum of £20,000 for which the plaintiffs were liable as gurantors for Smith. The bill of sale in dispute in this action was then given to secure such £7,350 with interest. It recited that the said company had agreed to lend to the said A. A. Smith, who was therein described as the mortgagor, the sum of £7,350, and after reciting also that 296] *the mortgagor was already indebted to the said company in £24,000 and that the said company was liable as guarantors for the mortgagor in a further sum of £20,000, and that it had been agreed that the mortgagor should exe cute such deed as a security for the repayment of the said sum of £7,350 with interest, it went on as follows: "Now (C.A.) Ex.D. Credit Co. v. Pott. 1880 this indenture witnesseth that in pursuance of the said agreement, and in consideration of £7,350 now paid by the said company as the mortgagor doth hereby admit, he, the mortgagor, doth assign," &c. The said £7,350 and interest was, by the terms of the bill of sale, made payable to the company on demand, but such demand was to be by notice in writing. The issue was tried at the Surrey summer assizes, 1879, before Pollock, B., without a jury, and as in fact no money passed between the company and Smith at the time the bill of sale was given, it was contended on behalf of the defendant, the execution creditor, that the consideration was not truly set forth. The learned judge, however, held that there had been substantially a fresh loan, and that the requirements of the Bills of Sale Act, 1878, were satisfied by the statement of the consideration, and he accordingly gave judgment for the plaintiffs. The defendant appealed. Morgan Howard, Q.C., and Eyre Lloyd, for the defendant: The 8th section of the Bills of Sale Act, 1878 (41 & 42 Vict. c. 31), requires that every bill of sale to which that act applies "shall set forth the consideration for which such bill of sale was given"-that means the true consideration. The bill of sale in dispute in this action does not set forth the true consideration. It is untrue to say that the company had agreed to lend any money or that any money was then paid by the company to Smith. [BRETT, L.J.: The question is whether what took place when the accounts between the parties were gone into did not amount to a fresh loan?] It was not an agreement for a loan, but in fact to renew a previous bill of sale. The recitals in the deed makes a distinction between an indebtedness and an advance, and a stranger reading the bill of sale would infer that a sum was then paid and advanced by the company, which was not the fact. [BAGGALLAY, L.J.: There is nothing amounting [297 to fraud. In Hamlyn v. Betteley (') the statement that the money was paid to the grantor of the bill was sufficient, though the whole of the money was not in fact paid to him direct.] In Ex parte Charing Cross Advance and Deposit Bank v. Parker (†), decided by the Court of Appeal from the Bankruptcy Court last November, the consideration for a bill of sale which was expressed therein to be £120 was held not to be truly stated, as in fact only £90 was paid and £30 was re(1) 5 C. P. D., 327.. (2) 15 Weekly Notes, 167. |