proceedings, if I was to dismiss the party under this protest.

"The course which the clergyman adopts to do himself justice, is by promoting this suit in the Ecclesiastical Court for erecting the monument without a faculty; and I see no impropriety in such proceedings. It is alleged, that the party offered to procure a faculty, or to take down the monument; but the faculty would not have been granted, as a matter of course, without proof that the leave of the rector had been obtained. It is also said, that the clergyman ought to have informed the party that a faculty was necessary: but every one is bound to know the law, so far as is requisite for the proper guidance of his own conduct. Then it is alleged, that the rector had given his consent that the monument should be taken down, which however is denied. But the taking down the monument would be an offence, for which also the party would be liable to prosecution, since, when once erected, it cannot be removed without the sanction of the ordinary. The con sent of the rector therefore would not be sufficient

The promoter having intimated his wish that the suit should not proceed further, the protest was overruled, and the party simply condemned in costs; but had this wish not been expressed, it is, I think, clear that the court would have compelled the defendant to pay the whole of the exorbitant demand.

The result then of the various authorities on these cases, appears to be, that for the erection of monuments in churches or church-yards, a faculty is indispensably necessary, and that these faculties are very seldom, if ever, granted without the previous consent of the rec

tor or parson, who, unless bound by special custom to the contrary, may demand a very large sum of money for his permission; but when once erected, that the rector has no power to authorise any one to pull them down. It does not however appear that a faculty is necessary for the erection of a grave-stone or flat-stone, to the memory of a deceased parishioner.

If the tomb-stones grave-stones or monuments already erected in the church chancel or church-yard require to be repaired, the expense of such repairs is to be borne by the executors personal representatives or heirs at law of the persons to whose memory they are erected. It is also advisable to obtain the consent of the churchwardens, previous to the undertaking of such repairs. This however is mere matter of courtesy, as the churchwardens cannot, unless under very peculiar circumstances, withhold their consent.

In the case of Bardin and Edwards v. Calcott (t), which was a proceeding against the defendant for erecting tombs in the church-yard without due authority, Sir W. Scott, in his judgment, observed,

In this case, three offences are charged: the first is for repairing a tomb, without leave of the churchwardens; and the evidence on this charge, as it is to be found in the depositions of Huntly, one of Calcott's men, is that he was ordered to repair the brick-work, and for that purpose he took off the flat stone, and took down three courses of brick-work above ground, and next morning finished it, as it was before. That the sexton came to him when he had nearly done, and

(t) 1 Consist. Reports, 14, 1789.

asked him how he came there? To which he answered, that he had borrowed the keys of the clock-maker, and as he had nearly done, he should stay and finish his work. Stratford says, that he carried a message from Bardin the churchwarden, to Calcott, not to make any alterations, at five o'clock in the morning, but he afterwards saw that he had removed the stone as before described.'

"Then what is this offence; not that of erecting any structure, nor of making any addition to it, but merely of repairing what had been already placed there by proper authority, according to the custom of the parish. Then came the prohibition to do what had not been intended to be done-namely, to make any alterations; and the man continued only to restore and place every thing as it was before. No alteration or addition was actually made. The only conceivable fault then in this part of the case is, that it was done without leave of the churchwardens. It might have been proper to apply for leave but the churchwardens were bound to grant it, as far as their authority extended; and if they had not, they would have been liable to the censure of the court. It is of public consequence that monuments once built should be preserved, and if parties are not at liberty to repair, the object of obtaining leave to erect would be defeated. Monuments are memorials of great use in questions of descent, and consequently in matters of family interest: and decency and propriety likewise require that they should not remain in a state of ruin and decay. It is rather the duty of churchwardens to encourage parishioners, that they may be put into repair, than to obstruct others in doing it. The only

fault in this instance was that the person so employed did not observe the proper formalities of making application. The complaint, on that ground alone, is one which I am not inclined to visit with severity, although it might have been proper to have made the application, inasmuch as nothing should be done in a church without the knowledge and consent of the churchwardens.

"The other charges are for original buildings, and are the subject of very different consideration."

The evidence as to the first of these related to the tomb of one Wilson, an out-parishioner, and it appeared that permission had been asked and obtained, on payment of a fee of eight guineas, for laying a flat stone to his memory; but Calcott, who was employed to lay the said stone, had carried the brick-work, which supported the said stone, higher than the surface of the ground, and higher than the other monumental flat stones in the church-yard; upon which the curate interfered, and the churchwardens ordered him not to proceed, but he paid no attention to their remonstrances.

The third charge related to the monument of Mr. Lambert, a parishioner. His widow had applied for, and, on payment of the usual fee, had obtained leave for laying a flat stone to his memory; but Calcott, by her directions, had in this instance carried the brickwork a foot above the surface of the soil.

The conclusion of the judgment of Sir W. Scott I was as follows:

"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 that sort of laxity which is apt to be exercised upon property of a public nature, and in which 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 them 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 expenses 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 witnesses which the party has examined, and of his general good character, I shall fix that sum at thirty pounds,"