Q.B. Div.] REG. v. THE GUARDIANS OF THE PRESTON UNION. but had not acquired a settlement there, and it was admitted that the last legal settlement of husband and wife was in the Preston Union. In 1881 the wife became of unsound mind and chargeable to the parish, and the medical officers of the union certified under 25 & 26 Vict. c. 111, 8. 20, that she, being a pauper lunatic, was a proper person to be kept in a workhouse. On the 4th Aug. 1881 an order was made by two justices for the removal of the woman to the Preston Union, and the husband consented to the order of removal. The Court of Quarter Sessions quashed the order of removal on the ground that the wife could not be separated from her husband, and that she, as a married woman, was irremovable without her husband. Held, that the decision of the Court of Quarter Sessions was wrong, and that the order of removal must be upheld. RULE calling on the Guardians of the Preston Union to show cause why an order of sessions should not be quashed. At the Court of Quarter Sessions in and for the county of Lancaster, holden at Preston, in the said county, on the 5th Jan. 1882 an order of removal directing that Margaret Billington, a pauper, the wife of James Billington, should be removed from the Garstang to the Preston Union was quashed subject to the opinion of the Court upon the following case: CASE. 1. From Aug. 1880 to July 7 1881, the said Margaret Billington resided with her husband, James Billington, in his house at Myerscough, in the Garstang Poor Law Union, and neither husband nor wife during such time were ever at anytime chargeable to, or received relief from, any parish or union. 2. The legal settlement of the said James Billington and of his said wife, the said Margaret, in his right, is admitted to have been, on the said 7th July 1881 and the 4th August 1881, in the Preston Poor Law Union. 3. A certificate bearing date the 11th July 1881, and in the following terms, was signed by the medical officer of health for the Garstang Union : LUNATICS IN WORKHOUSES.-Certificate to be given to the medical officer of the workhouse under section 20 of the 25 & 26 Vict. c. 111. I, William Chapman, the medical officer of the Garstang Union Workhouse, do hereby certify, pursuant to the provisions of the 25 & 26 Vict. c. 111, s. 20, that in my opinion, Margaret Billington, aged forty-six years, a pauper lunatic, is a proper person to be kept in a workhouse, and that the accommodation of the Garstang Union workhouse is sufficient for her reception. 4. (Not material). 5. On the 4th of Aug. 1881 two of Her Majesty's justices of the peace for the said county of Lancaster made an order for the removal of the said Margaret alone, from the said Garstang Union to the said Preston Union. The said order was, omitting formal parts, as follows: Whereas, complaint hath been made unto us, two of Her Majesty's justices of the peace in and for the said county, by the guardians of the poor of the said Garstang Poor Law Union, that Margaret Billington (hereinafter called the pauper) has come to inhabit, and is now inhabiting, in the township of Barnacre-with-Bond, in the county of Lancaster (the same being one of the townships comprised in the said Garstang Union) not having [Q.B. DIV. gained a legal settlement there, nor in any other town. ship in the said union, nor having produced any certifi cate acknowledging her to be settled elsewhere, and that she is now actually chargeable to the common fund of the said union, in respect of relief made necessary by sickness and unsoundness of mind, being such as will produce permanent disability, and that the township of Woodplumpton, in the Union of Preston (being one of the townships comprised in the said Preston Poor Law Union) is the place of her last legal settlement. We, the said justices, upon due proof thereof, do adjudge the same to be true, and that the place of the last legal settlement of the said pauper is in the said township of Woodplumpton, in the said union of Preston, and we, the said justices, do hereby further state, that we are satisfied, by the evidence aforesaid, that the said sickness and unsoundness of mind of the said Margaret Billington will produce permanent disability in the said pauper, Margaret Billington. These are, therefore, to order (then followed the order that the pauper be removed to the Preston Union). 6. The said James Billington consented to such removal. The said pauper did not give, nor was she mentally competent to give, her consent. 7. The said James Billington at the time of such order, and thence hitherto, has continued to reside, and still resides, at his said house within the Garstang Union, and carries on his employ. ment as theretofore, and maintains himself out of his own funds. 8. The guardians of the Preston Union duly prosecuted an appeal to the Quarter Sessions of Lancaster, holden at Preston on the 5th day of January 1882, and the said sessions, upon the hearing of such appeal, decided in favour of the appellants on the ground that the said wife could not be thus separated from her said husband, and that she as a married woman was, under the circumstances, irremovable alone without her husband. The grounds of appeal are attached to, and are to be taken as part of this special case. The question for the opinion of the court, is whether upon the facts as above stated, and as in evidence before the quarter sessions, the order of removal appealed against is good in law. Addison, Q.C. (Leresche with him) for the appellants. The consent of the husband to the removal of the wife is not enough, and even if both husband and wife consent the justices have no power to make an order which will separate them. A long series of authorities support this proposition. In Rex v. The Inhabitants of Ironacton (Burr. S. C. 153) an order removing the wife and children was upheld, but it was not shown that the husband was not residing at the place to which they were removed, and the Court assumed that he was. In Rex v. Inhabitants of Cuckfield (Burr. S. C. 291) it was held that a wife could not be separated from her husband. These authorities are based upon the ground that it is against public policy to separate husband and wife. Rex v. The Inhabitants of Eltham (5 East, 113) will be relied on as an authority that the consent of the husband is sufficient, but that case was doubted in Rex v. Inhabitants of Leeds (4 B. & Ald. 503). Best, J. says: "If the point decided in Rex v. Eltham were to occur again, I think it would, perhaps, be worth considering whether that decision could be supported." In the same case, Bayley, J. says: "It is against public policy and good morals to permit the separation of husband and wife, even with their consent." In another case of Rex v. The Inhabitants of Leeds (13 L. J. 107, M. C.), it was held that where husband Q.B. Div.] REG. v. THE GUARDIANS OF THE PRESTON UNION. and wife are living together and become chargeable, and no settlement of the husband can be ascertained, the wife cannot be removed to the place of her maiden settlement, the hus band alone consenting to the separation. No case can be cited to support the proposition that the husband and wife can be separated. He also cited Rex v. Carleton, Burr. S. C. 813; Reg v. The Inhabitants of Stogumber, 9 Ad. & El. Reg. v. The Inhabitants of St. Mary, Beverley, 1 Reg. v. The Guardians of Bridgnorth, 47 L. T. Rep. Charles, Q.C. (Leese with him) for the respondents.-The removal in this case was to the husband's settlement, but in the cases cited, except Reg. v. The Inhabitants of Stogumber, it was to a different settlement. If the husband had taken his wife to the Preston Union they could not have refused to take her in. Rex v. The Inhabitants of Eltham has never been overruled, and that is a distinct authority to show that a woman may be removed to her place of settlement with the consent of her husband and herself. Reg. v. The Inhabitants of Stogumber is also an authority to show that the consent of the husband is sufficient. In the report of that case in Perry and Davidson's Reports, vol. 1, p. 499, Lord Denman, C. J., says: "No consent on the part of the husband, nor anything equivalent to it, appears on the face of the case." It is found on the face of the order which is brought up to be quashed that this woman was permanently insane and disabled, and is therefore unable to give her consent to the removal. Under these circumstances the consent of the husband was sufficient. POLLOCK, B.-This is an appeal from an order of sessions quashing an order of removal made by justices, whereby a married woman was removed to her husband's settlement, and the question is whether that order is good in law or not. It seems to me unnecessary to discuss the earlier cases brought to our attention by Mr. Addison, and reported in Burrow's Reports. Two principles have guided the courts in cases of this kind; one is the question of public policy in separating husband and wife, and the other raises the question whether, when they are separated, the wife should be sent to her home settlement, or to her husband's settlement. In the case of Rex V. The Inhabitants of Eltham (5 East, 113) it is quite clear that Lord Ellenborough thought that where both the husband and wife consented, the wife could be sent to her last legal settlement; but in this case it is not necessary to go so far as that, because the order was to send the wife to the husband's settlement with his consent. I agree with what was said by Field, J. in Reg. V. The Guardians of Bridgnorth (ubi sup.) It was said that in all the cases the policy seems to be that it is undesirable to separate husband and wife, and this seems to me the most important point in the case. The circumstances of this case are somewhat, but not entirely, novel. In Reg. v. The Inhabitants of Stogumber (ubi sup.) the question was raised whether a woman could be removed from the parish where she had resided with her husband to her husband's settlement, the husband being in a gaol in the parish where they had resided, and his wife being allowed to visit him. In the report of the case in Perry and [Q.B. DIV. Davidson's Reports, vol. 1, p. 409, Lord Denman, C. J. appears to have said this: "It is clear in this case that the parties were residing in the same parish, and there might have been a consortium between them which it is the policy of the law not to interrupt. No consent on the part of the husband, nor anything equivalent to it, appears on the face of the case." How far that had any effect on the decision of the court it seems unnecessary to consider, for it appears from the argument that it was assumed that a consortium might exist between the husband and wife. Nowadays there could be no consortium where the husband was undergoing a sentence of penal servitude for life. In July 1881 the wife was taken to the Garstang workhouse, and on the 11th July the medical officer gave a certificate under 25 & 26 Vict. c. 111, s. 20, that the lunatic was a proper person to be kept in a workhouse. The words of that section are "No person shall be detained in any workhouse, being a lunatic, or alleged lunatic, beyond the period of fourteen days, unless in the opinion, given in writing, of the medical officer of the union or parish to which the workhouse belongs, such person is a proper person to be kept in a workhouse, nor unless the accommodation in the workhouse is sufficient for his reception; and any person detained in a workhouse in contravention of this section, shall be deemed to be a proper person to be sent to an asylum within the meaning of section sixty-seven of the Lunacy Act, chapter ninety-seven; and in the event of any person being detained in a workhouse in contravention of this section the medical officer shall for all the purposes of the Lunacy Act, chapter ninety-seven, be deemed to have knowledge that a pauper resident within his district is a lunatic, and a proper person to be sent to an asylum; and it shall be his duty to act accordingly, and further to sign such certificate as is contained in schedule F, with a view to more certainly securing the reception into an asylum of such pauper lunatic as aforesaid." Now, that was acted upon in the present case, and it was found that this woman was permanently disabled, and she was thereupon removed by the order of two justices. Whether that order was right is the question we have to decide. If it is said that the husband has not consented, the answer is that he has consented; and if it be said that the wife did not consent, the answer is that she could not. Therefore, the authorities on that point are not applicable to this case. Under sect. 20 of 25 & 26 Vict. c. 111, it is necessary that the wife should be removed, and upon all grounds I am of opinion that the judgment of the Court of Quarter Sessions is wrong, and that the order of the magistrates must be upheld. NORTH, J.-I agree. Mr. Addison has cited several old cases, and we are much obliged to him for bringing them to our attention, but I do not think they give us much assistance in deciding the point raised in this case. The question is really reduced to this, namely, where the wife should be removed when it is necessary that she should live separate from her husband. I think she was rightly removed to her husband's place of settlement. Supposing the consortium were put an end to by the death of the husband, there can be no doubt that the wife could be sent to the husband's settlement, namely to the Preston Union. I am, therefore, of opinion that the order Q.B. Div.] REG. V. THE OVERSEERS OF THE PARISH OF TONBRIDge. of Quarter Sessions was wrong, and the order of removal was right. Solicitor for the prosecution, Clarke, Preston. Solicitors for the defendants, Buck, Dicksons, and Cockshott. April 25 and 26, 1883. (Before FIELD and MATHEW, JJ.) REG. v. THE OVERSEERS OF THE PARISH OF TONBRIDGE. (a) Burial board-Poor rate-18 & 19 Vict. c. 128, 8. 12. By the 12th section of 18 & 19 Vict. c. 128, the vestry or meeting in the nature of a vestry of any parish, township, or other district not separately maintaining its own poor, which has heretofore had a separate burial ground, may appoint a burial board, and from time to time supply vacancies therein, and may exercise the same powers of authorisation, approval, and sanction in relation to such burial board, and such other powers as are vested in the vestry of a parish separately maintaining its own poor. Held, that this section does not apply to a district having a separate burial ground, but not separately maintaining its own poor, which is part of a district already having a legally constituted burial board. THIS was a special case, stated pursuant to an order of court dated the 24th June 1882, being, so far as material, as follows: 1. The parish of Tonbridge is a parish maintaining its own poor, and is constituted and made up of the following six or more ecclesiastical districts, Tonbridge, Tonbridge Wells, Saint Peter's, Southborough; Saint Thomas's, Southborough; Saint Stephen's, and Hildenborough, none of which districts has ever separately maintained its own poor, all of the said districts contributing to a common rate levied for the relief of the poor by the parish overseers throughout the entire parish. 2. In the year 1881 a district was, under 1 & 2 Will. 4, c. 38, and other statutes, assigned to the new church of Saint Peter, then lately built upon land provided by the lord of the manor of Southborough by deed of gift, and the said church with a burial ground for the said district was duly consecrated, and in the year 1866 the said burial ground was enlarged by a further grant of land from the lord of the said manor, and the expense of laying out the said land as a burial ground was defrayed by a voluntary rate levied upon all the inhabitants of the said district. 3. In the year 1871 a district was assigned under 59 Geo. 3, c. 134 and other statutes to a new church of Saint Thomas within the limits of the aforesaid district of Saint Peter. 4. The burial ground aforesaid has always been the separate burial ground of the said original district of Saint Peter, and has been used exclusively by the inhabitants thereof, and since the said district of Saint Thomas has been formed out of the said district of Saint Peter the two districts have had the said burial ground exclusively for their joint use. 5. Since the formation of the said district of (a) Reported by J. SMITH. Esq., Barrister-at-Law [Q.B. Div. Saint Thomas the inhabitants of the two districts of Saint Peter and Saint Thomas have been accustomed to meet in meetings in the nature of a vestry, for purposes common to them both, such meetings being summoned by the churchwardens of the district of Saint Peter. 6. In the year 1855, subsequently to the passing of 18 & 19 Vict. c. 128, sects. 11 and 12, hereinafter set out, a meeting of the inhabitants of the parish of Tonbridge was held in pursuance of notice, copies of which had been affixed to the doors of all the churches in the parish, including those at Southborough, but excepting those within the ecclesiastical district of Tonbridge Wells, and at this meeting resolutions were duly passed for the formation of a burial board for such part of the parish of Tonbridge as included in the Tonbridge Wells ecclesiastical district. The inhabitants of the Southborough districts as a body were opposed to the said resolutions. was not 7. The burial board constituted in accordance with resolutions passed at the said meeting acquired a site about the centre of the parish of Tonbridge, but at the end of the town farthest from Southborough, and established a cemetery thereon, being about three and a quarter miles distant from the said church of Saint Peter, and the inhabitants of Southborough were rated for the expenses incidental to the establishment of the said cemetery, and have ever since been rated for the expenses incidental to the maintenance thereof, although in fact the inhabitants of Southborough have continued to use the Saint Peter's burial ground. 8. In the year 1858 the legality of the constitu tion of the said Tonbridge Burial Board was called in question, but it was decided by the Court of Queen's Bench in the case of Viner v. The Tonbridge Overseers (2 El. & El. 9; 28 L. J. M. C. 251, Q. B.) that the said burial board was legally constituted. 9. In the year 1878 the said burial board of Tonbridge found it necessary to enlarge the said cemetery, and for this purpose a meeting of the inhabitants of the parish of Tonbridge was held in pursuance of notice, copies of which had been affixed to the doors of all the churches in the parish including those in Southborough, but excepting those within the ecclesiastical district of Tonbridge Wells, and resolutions were duly passed at the said meeting, empowering the said burial board to enlarge the said cemetery, and to raise a sum of money sufficient for that purpose upon the security of the future poor rates of such portion of the parish as was not included in the ecclesiastical district of Tonbridge Wells. The inhabitants of the Southborough district as a body were opposed to the said resolutions. 10. Subsequently to this it was found necessary by the inhabitants of the districts of Saint Peter and Saint Thomas that the burial ground at Sonthborough aforesaid, jointly used by them, should be enlarged, and accordingly the churchwardens of Saint Peter's district summoned a meeting in the nature of a vestry for the 3rd Feb. 1879 by notices signed by them and affixed to the doors of all the churches and chapels in the districts of Saint Peter and Saint Thomas. The inhabitants of the other districts included in the jurisdiction of the Tonbridge Burial Board were Q.B. Div.] REG. v. THE OVERSEERS OF THE PARISH OF TONBRIDge. not in any way consulted in the matter, nor was any notice of the said meeting or of the purposes thereof given to any of the parishioners residing outside the limits of Southborough. 11. The said meeting consisted exclusively of ratepayers from the two districts of Saint Peter and Saint Thomas, who thereupon appointed a burial board for the said two districts, and vacancies therein have since from time to time been filled up at similar meetings. 12. In Sept. 1881 the burial board thus appointed for Southborough having incurred expenses to the amount of 2921. 10s. in the enlargement of their said burial ground, and otherwise in reference thereto, issued their certificate to the overseers of the parish of Tonbridge for payment of the said sum. 13. The said overseers decline to act upon the said certificate, or to pay the said sum or any part thereof to the said burial board, on the ground that the said burial board has not been, and cannot be, legally constituted. 14. The said burial board contend that they have been legally constituted under 18 & 19 Vict. c. 128, ss. 11 and 12, which are in the following terms: 11. Where a parish or place has been united with any other parish or place, parishes or places, for all or any ecclesiastical purposes, or where two or more parishes or places have heretofore had a church or a burial ground for their joint use, or where the inhabitants of several parishes or places have been accustomed to meet in one vestry for purposes common to such several parishes or places, it shall be lawful for the vestry, or any meeting in the nature of a vestry of such several parishes or places in any of the cases aforesaid, and whether any one or more of such parishes or places do or do not separately maintain its own poor, to appoint a burial board, and from time to time to supply vacancies therein, and to exercise the same powers of authorisation, approval, and sanction in relation to such burial board, and such other powers as under the said Acts and this Act are vested in the vestry of a parish or place separately maintaining its own poor; and the burial board so appointed shall have all the powers for providing a burial ground for the common use of such several parishes or places, and for facilitating interments and otherwise as if such several parishes or places had been a parish separately maintaining its own poor, and the expenses of the burial board appointed under this provision shall be borne by the several parishes or places for which such board is appointed, and shall be apportioned among them by such burial board in proportion to the value of the property in such several parishes or places as rated to the relief of the poor, and the sums required by the burial board in respect of the portion of such expenses to be borne by any such parish or place shall be paid out of the rates for the relief of the poor in such parish or place in like manner as if such burial board had been appointed for such parish or place alone. 12. The vestry or meeting in the nature of a vestry of any parish, township, or other district not separately maintaining its own poor which has heretofore had a separate burial ground may appoint a burial board and from time to time supply vacancies therein, and may exercise the same powers of authorisation, approval, and sanction in relation to such burial board, and such other powers as under the said Acts and this Act are vested in the vestry of a parish separately maintaining its own poor, and the burial board so appointed shall have all the powers for providing a burial ground and otherwise as if such parish, township, or other district had been a parish separately maintaining its own poor. 15. On the 24th June 1882 the Queen's Bench Division of the High Court of Justice, upon the application of the Southborough Eurial Board, made an order that a writ of mandamus should issue, directed to the overseers of the parish of Tonbridge, in the county of Kent, commanding MAG. CAS. VOL. XIII. [Q.B. Div. them to put in force the powers of the Burials Acts (15 & 16 Vict. c. 85; 16 & 17 Vict. c. 134; 18 & 19 Vict. c. 128; 20 & 21 Vict. c. 81, especially of sect. 13 of 18 & 19 Vict. c. 128), and to levy and pay to the said Samuel Warburton, clerk to the burial board of Southborough, in the said parish, the sum of 2921. 10s, being expenses of the said board, according to the tenor of a certificate dated the 24th April 1882, under the common seal of the said board, and signed by two members and the secretary thereof, and further by consent of counsel on both sides that no objection should be taken to the form of the said writ, and that a special case should be stated without pleading, such case to be settled in case of difference by an arbitrator. 16. The question for the court is, whether upon the facts herein before stated, the inhabitants of Southborough had or have any power under the sections herein before set forth to constitute a separate burial board for the district of St. Thomas and St. Peter. Meadows White, Q.C. (with him Archibald) for the applicants. Lumley Smith, Q.C. (with him Candy) for the defendants. The arguments sufficiently appear in the judg ment. Cur. adv. vult. April 26.-FIELD, J.-This is a case in which it is the duty of the court to construe several statutes passed at different times, and as the subjectmatter also is of a complicated character, dealing as it does with ecclesiastical districts and parishes, it is extremely difficult to arrive at the precise meaning of the Legislature. The facts, however, out of which this question arises are not very complicated. The old parish of Tonbridge, which maintained its own poor, had six divisions or districts which had not originally any ecclesiastical or any secular or parochial organisation. There was among these six districts first of all the commercial and industrial town of Tonbridge itself, and next in importance the town of Tonbridge Wells, and between them was the district of Southborough. The town of Tonbridge Wells very early became an ecclesiastical district, and acquired, as it had a perfect right to do under the Acts of Parliament I just now mentioned, a separate burial ground. In the year 1831 a new district came into existence, known as Southborough, and at that time it was made into one ecclesiastical district only, which was put into the same position as Tonbridge Wells, having its church St. Peter's, and its separate burial ground. This was the state of affairs in the parish of Tonbridge in 1853 when the first legislation upon this matter took place (16 & 17 Vict. c. 134), enabling certain parishes to appoint burial boards. This legislation arose in this way: In the metropolis a great many burial grounds were overcharged, and had become a scandal, and, power being given to the Secretary of State to close them, it became necessary to provide space for the interment of those who had formerly the right to be buried in these grounds, and for that purpose, in 1852, an Act was passed which applied solely to the metropolis (15 & 16 Vict. c. 85), and then in 1853 some of its provisions were, by 16 & 17 Vict. c. 134, applied to parishes outside the metropolis, the mode adopted by the later Act being to 2 H Q.B. Div.] REG. v. THE OVERSEERS OF THE PARISH OF TONBRIdge. extend to parishes not in the metropolis all the sections of the earlier Act which were applicable. It is to be observed that the 23rd section of the earlier Act, being one of the sections adopted by the later Act, enables the vestries of several parishes to concur in providing a burial ground for their common use-a provision the importance of which will be seen shortly in regard to the subsequent legislation which provided for the circumstances under which these parishes might separate again from one another. The next Act (17 & 18 Vict. c. 87) went a little further by giving town councils power to provide burial grounds, and then in 1855 came the Act with which we have to deal (18 & 19 Vict. c. 128). Immediately after the passing of that Act the inhabitants of the parish of Tonbridge, other than Tonbridge Wells, determined to appoint a burial board. Southborough, having already got St. Peter's with its burial ground, objected to the mother parish having a burial ground upon the ground that, inasmuch as it had ceased to be an entire parish for ecclesiastical purposes, although that was not the case for secular purposes in the way of rating, it no longer formed an ecclesiastical unit with the capacity of having a burial board. That point was brought before the court in the case of Viner v. The Overseers of Tonbridge (2 El. & El. 9; 28 L. J. M. C. 251, Q. B.), and was decided in favour of the mother parish, which had appointed a burial board and formed a burial ground. For the purpose of making and forming that burial ground money was doubtless borrowed and charged upon the rates, and so far as I know the rates are still charged with the balance of the money so expended." The burial board also appointed the necessary officers and servants to attend to the burial ground, and from that time down to the year 1881 have acted as a burial board, including in their area the district of Southborough, divided into its two ecclesiastical districts of St. Peter's and St. Thomas's, two districts with one joint burial ground, the latter having become an ecclesiastical district in 1871, but never having had any separate burial ground. In 1879 the inhabitants of Southborough became desirous of appointing a burial board of their own, and upon the 3rd Feb. 1879 a meeting in the nature of a vestry was held for St. Peter's and St. Thomas's, and that meeting passed a resolution to appoint a burial board, and placed the burial ground of St. Peter's under its control, and added afterwards to it, and, having incurred an expenditure of 2921. 108., under the provisions as they believed of the Acts in question, certified that sum to the overseers of Tonbridge, and required the latter to make a rate upon the inhabitants of St. Peter's and St. Thomas's for the purpose of meeting those expenses. This the overseers of Tonbridge refused to do, on the ground that the alleged burial board for Southborough had no legal foundation. Upon that a rule was obtained for a mandamus, and a special case stated upon which we have now to decide. Mr. Meadows White, for the applicants, rests his case upon the 12th and 13th sections of the Amendment Act of 1855 (18 & 19 Vict. c. 128). The meeting of the inhabitants of Southborough-treating the districts of St. Peter's and St. Thomas's as one-in Feb. 1879 was, he contends, a meeting in the nature of a vestry-it was a meeting of a districú not maintaining its own poor, which had theretofore [Q.B. Div. had a separate burial ground. It may very well be that Southborough was a district having a separate burial ground, for the inhabitants of St. Thomas's never lost their right of interment in the burial ground of St. Peter's, and it therefore seems to me that, although it has been ecclesiastically divided into two, it is nevertheless within the operation of the 12th section of 18 & 19 Vict. c. 128, so far as the language of the section goes. The argument put forward on the contrary on behalf of the defendants is, that although the district of Southborough may come within the words of that section, yet a case such as the present is not within the intention of the Act, to find out which it will be necessary for us to look at the whole course of legislation. Particular reference, however, I may say, was made on behalf of the inhabitants of Southborough to the words of the 13th section, providing that "where any district (whether a parish, or township, or other subdivision) not separately maintaining its own poor, but forming part of a parish maintaining its own poor, or of an incorporation or other union maintaining the poor of the places comprised therein, by means of a common rate, shall have a burial board, or shall form part of a place or union of places not co-extensive with the area rated for the relief of the poor, and having one burial board, it shall be lawful for such respective burial board to issue their certificate to the overseers of such parish, or the overseers or other persons authorised to make and collect, or cause to be collected such common rate (as the case may be), for payment of the sums required for the expenses of such burial board." From these words the deduction was drawn that, in allowing districts not separately maintaining their own poor to appoint burial boards, the Legislature was wholly indifferent as to the existence or non-existence of a burial board in the parishes or unions of which they formed parts, and that it was quite immaterial whether the mother parish had or had not a burial board. Various sections of 20 & 21 Vict. c. 81 were also cited on each side to show the intention of the Legislature on this point. I propose now to take the various sections in their order, in order to discover what the intention of the Legislature really was. The Act of 1853 (16 & 17 Vict. c. 134) enabled several parishes to concur in having one burial board; but it was seen that it might happen that, after such a union had taken place, the contracting parties might not like to continue united, and that provision should be made in that respect. This was done by the 2nd section of 20 & 21 Vict. c. 81, which provides that "Where the vestries of two or more parishes have agreed to provide one burial ground for the common use of such parishes such vestries may, at any time before such burial ground has been provided, determine the union between such parishes under such agreement." On the words, "before such burial ground has been provided," Mr. Lumley Smith, for the defendants, strongly relies, as showing that when once a union has been effected, and a burial board appointed, it requires express legislation to get rid of it; and the 12th section does not apply here, because, if it did, there would be two burial boards exercising jurisdiction over the same area of rateable property-a state of affairs obviously giving rise to so much inconvenience that it could never have been the intention of the Legislature to produce it. Mr. White, |