McGuire v. Trustees of St. Patrick's Cathedral

Barrett, J. I am unable to concur in the conclusion arrived at by Mr. Justice Daniels in this case. The learned judge ignores the views which were expressed by this court in People v. Trustees, (Coppers Case,) 21 Hun, 184. In that case, a receipt similar to the present, but more favorable to the holder’s contention, was fully considered, and its inadequacy to confer a legal and enforceable right pointed out. The question there was whether a mandamus would lie. Incidentally, we held that it was “even doubtful whether equity would decree a specific performance. ” Upon that question a definite opinion was reserved. It was enough for the denial of the mandamus that the right, if any existed, was an equitable one, and such as could not be enforced at law. We endeavored to show that there was absolutely no legal right, and that an equitable right was extremely doubtful. This latter question is now before us for a decided and definite opinion. To its accurate solution a clear statement of the precise facts is essential. , Let us, for the monent, assume that burial has been arbitrarily refused. Thus, it is said, McGuire has been denied his “property rights.” What, then, are these property rights? They-•rest exclusively upon the receipt given in extenso, in Mr. Justice Daniel’s opinion. There is not a particle of evidence in the case of any paroi agreement, except such as may be implied from the possession of that paper. What took place between the parties when Mr. John McGuire paid the ©10 specified in the receipt to Mr. D. Brennan, the “superintendent of the office of Calvary Cemetery, ” we know not. What their bargain was is entirely un — 346 — disclosed. Whether it was a bargain for the burial of one person, or of two- or more persons, for the burial of McGuire himself, of his family, of both, or of Catholics outside of his family, are all mere matters of conjecture. What we know is that, as the result of some undisclosed paroi agreement, Brennan gave McGuire a receipt for $10, specifying that such sum was the “amount-of purchase money of a grave,” the location of which is indicated by some-words and figures which appear beneath Mr. Brennan’s signature. 1 have-said that the receipt in the Coppers Case was more favorable than this to the holder’s contention; for there it read, “amount of purchase money of' a plot of ground, eight feet by eight feet. ” That receipt was also more complete and specific, in that it particularized and numbered the graves for which the plot of ground should be utilized. I quote the form of this enumeration: “4 graves, 5, 6, 7, 8.” Here we have nothing of the kind. There is proof in the case that the located grave would hold four bodies, -and perhaps even more; but who shall say that the parties contemplated packing the earth (two-feet by eight) in such an extremely economical fashion ? Is it to be implied from a receipt for the purchase money of a grave,—that receipt standing alone, and without a scintilla of evidence tending to pluralize the expression?' I cannot think it. How, upon these facts, what in law were Mr. McGuire's-precise property rights? Were they such as can be specifically enforced by his administrator in a court of equity? That is the real question. How, in the first place, it is very clear that the right of burial is either an easement or a license. If an easement, it is an interest in the land; if a license, it is not. In the former case, the right is permanent; in the latter, it is personal and. revocable. There are some subtle suggestions in the old cases with regard, to irrevocable licenses founded upon good consideration. It seems to me,, however, that, when we talk of an irrevocable license founded upon a good, consideration, we simply run into the domain of easements. However that may be, it is not claimed that McGuire here acquired an easement; nor, indeed, could such a claim be defended, for the simple and sufficient reason, that there was no grant. The learned counsel for the plaintiff rests his claim, upon the purchase of a license or privilege which he contends was irrevocable, and enforceable by bill for specific performance. If, however, McGuire acquired no interest in the land, as is fully conceded in the appellant’s second point, and as is unquestionably the law, it is difficult to see what basis there-can be for a decree that the land be perpetually burdened. If the plaintiff proceeds as the successor of a mere license, he is met by the-principle of revocation, and also by the rule that courts of equity will not. specifically enforce such privileges. Mr. Pomeroy, in his work on Specific Performance, (section 132,) says that in certain states a paroi license to enter upon and occupy land of the licensor, and to do acts thereon, “if partly executed by the licensee, so that injury which is technically called ‘ irreparable ’ would be caused by its revocation, will be specifically enforced. * * *- This rule is undoubtedly opposed to the common-law doctrine concerning licenses as it prevails in England and in most of the American states.” In a note to this section it is said that the proposition stated in the text is most strongly maintained by decisions of the Pennsylvania courts. These Pennsylvania cases (notably Rerick v. Kern, 14 Serg. & R. 267) were considered by Duer, J., in Jamieson v. Millemann, 3 Duer, 255. That learned judge-said: “It cannot, however, be denied that the supreme court of Pennsylvania * * * has held that a paroi license may, in special cases, have ithefull operation of a grant; but the decisions in Pennsylvania stand alone, and will be found, upon examination, to proceed upon a doctrine which is peculiar to the courts of that state. * * * As evidence of the law that we are-bound to administer, ” these decisions “have no authority whatever.” Judge Duer also points out the distinction between an executed license, the effect of which is merely to suspend the enjoyment of an easement, (as in Winter v. — 347 — Brockwell, 8 East, 308,) and a license warranting acts to be done by the licensee upon the lands of the licensor. In the former case the doctrine is nothing more than that, by a paroi license without a deed, the enjoyment of an easement may be waived or extinguished. This doctrine of Winter v. Brockwell (and also of Moore v. Rawson, 3 Barn. & C. 332, and Liggins v. Inge, 7 Bing. 682) is said to be wholly inapplicable when “the effect of holding the license to be irrevocable would be to give to the licensee a permanent interest or easement in these lands of the licensor;” and the learned judge adds that this “has been determined in numerous cases in the English courts, in those of our sister states, and emphatically in our own.” See the cases cited by Judge Duer in support of this latter statement,-, page 260, to which I add Wolfe v. Frost, 4 Sandf. Ch. 73. As Chief Justice Savage said in Mumford v. Whitney, 15 Wend. 393, “to decide that a right to a permanent occupation of the plaintiff’s land maybe acquired by paroi, and by calling the agreement a ‘license,’ would be in effect to repeal the statute. ” It follows that as plaintiff has no grant, and consequently no easement, and as his license is revocable, and cannot be specifically enforced, he has no property rights whatever which will authorize a court of equity to grant him the extraordinary remedy of a mandatory decree. The question remains whether a case has been made out for a specific performance of a paroi agreement for the grant of an easement. In Wiseman v. Lueksinger, 84 N. Y. 38, this question was considered upon facts somewhat analogous to those now before us. The court first discussed the claim of license, holding that “a right of drainage through the lands of another is an easement, requiring for its enjoyment an interest in such lands, which cannot be conferred by paroi license. It can only be granted by ‘ deed or conveyance in writing.’” The head-note disposes of the question of consideration in these words: “A mere license to drain is not made irrevocable by the fact that a valuable consideration was paid therefor.” In answer to the remaining contention, namely, that courts of equity would give effect to paroi agreements for the grant of easements when founded upon a valuable consideration, Danforth, J., observed that “the contract which equity will regard as equivalent to the grant required at common law or by the statute must be a complete and sufficient contract, founded not only on a valuable consideration, but its terms defined by satisfactory proof, and accompanied by acts of part performance unequivocally referable to the supposed agreement;” and again: “There are, no doubt, many cases in which courts recognize an equitable right to an easement without a deed; but there will be found in them either an express agreement for an easement, or an acquiescence or consent by conduct which has led to the erecting of permanent works, or valuable and lasting improvements, or some other fact which would make the assertion of a legal title operate as a fraud upon the persons setting up the equitable right. ” The doctrine of this case was reaffirmed in Cronkhite v. Cronkhite, 94 N. Y. 323. Miller, J., repeated the language of Danforth, J., which I have quoted, and he referred to the facts of the former case in these words: “In the case of Wiseman v. Lucksinger, the plaintiff had paid a sum of money for permission to drain his lot upon the land of the defendant, and took a receipt for the same, and he used and enjoyed the privilege for twenty-five years, when the defendant revoked the permission. In an action to enforce the right of the plaintiff, it was held that * * * the right to drain was an easement which could not be conferred by paroi license, but could be granted only by deed or conveyance in writing, and that an oral contract, which equity will regard as equivalent to the grant required at common law or by statute, must, as already stated, be a complete and sufficient contract in all its parts.” These cases were referred to with approval, and cited in support of like propositions, in Duryee v. Mayor, 96 N. Y. 484, and Fargis v. Walton, 107 N. Y. 403, 14 N. E. Rep. 303. It is apparent from the state — 348 — ment of facts with which I have prefaced these legal considerations that the present case, treated even as a bill for the specific performance of a paroi agreement for the grant of an easement, falls far short of what is required by the principles enunciated in these authorities. In all of the cases there was at least some oral testimony in support of the paroi agreement. It was not left entirely to the implications deducible from a mere receipt for money. Thus, in Wiseman v. Lucksinger, ubi supra, the plaintiff testified to the parol agreement, (page 43,) and the defendant denies the receipt of the alleged consideration. The plaintiff also proved the loss of a receipt, said to have been given to him by the defendant, which one of the witnesses testified was in the following form: “Beeeived of(Joseph Wiseman $7 for the right to drain through my premises,”—a receipt singularly analogous to the present. The plaintiff’s contention there was that a valid contract must be implied from these words; that the defendant thereby agreed, for the expressed consideration, to cede to the plaintiff the right to drain through his lands; and that equity would enforce the agreement. But the court denied the completeness of the contract to be implied from this receipt, even when read in the'light of the oral testimony behind and supporting it, and denied relief because the agreement was not entirely clear in all its parts. The court also denied relief because there had been no part performance within the rules laid down in courts of equity. Beferring to the latter head, Danforth, J., observed that the receipt contains “a mere license or permission to drain, and no agreement to convey an easement; nor is the license coupled with any interest in the land. It was therefore revocable, and its revocation did not operate as a fraud upon the plaintiff. . His expenditures were trifling, and, for aught that appears, have been moré than repaid in the use already had by the plaintiff of the privilege given to him.” The conclusion of the court upon this branch of the case was that “the agreement, however, to be implied from the receipt was undoubtedly good as a license, giving to the plaintiff immunity while acting under its privilege, but no vested -right entitling him to its use or enjoyment against the will of the grantor.” The case of Cronkhite v. Cronkhite is also very much in point. There the paroi agreement was for the laying down of pipes to carry water from a spring on the licensor’s lands—First, to the licensor’s buildings; and, second, to buildings on the licensee’s lands. The referee found as a fact, on the oral testimony, “that it was agreed that Henry C. Cronkhite [the licensee] should bear one-half the expense, and perform half the labor, of procuring and laying down the logs and pipes, etc.; and that, in consideration of such expenditure and labor, he should have a right to take water from said spring through logs and pipes in perpetuity.” Upon this, Miller, J., observed that “the testimony upon the trial established a paroi contract between John C. Cronkhite [the licensor] and Henry C. Cronkhite, whereby Henry C. was to take and use the water; and there was proof that both parties acted in accordance with that agreement. Money was expended by Henry C., pipes .were laid down and improvements made in connection with the use of the water, but there was no specific agreement as to the size of the pipes, the-amount of water to be carried through them, how far below the surfaee'they were to be laid,” etc. It was accordingly held that the agreement could not be enforced. “Disagreements,” said Judge Miller, “might also arise as to how and when and where the pipes should be laid and repaired, and as to the manner in which the spring should be protected; and thus it would be difficult for a court of equity to determine the precise character of the agreement. The evidence given upon the trial was too-vague and uncertain to establish a valid agreement in perpetuity such as the law recognizes. The statute re-' quires an agreement of this character to be in writing, expressing a consideration; and to establish it otherwise, by adverse possession, the proof should be entirely clear as to the nature and specific character of the agreement, so — 349 — that it can be eventually carried out and enforced.” In Kincaid’s Appeal, 66 Pa. St. 411, an instrument of far greater, weight and importance than the present receipt was spoken of as a “very loose paper.” The court there refers to the instrument as follows: “ The certificate set out in the bill states that the subscriber, in consideration of $10 paid by him, is entitled to * two burying lots in the burying ground of said church,’ * to have and to hold the said lots for the use and purpose, and subject to the conditions and regulations, mentioned in the deed of trust to the trustees of said church.’ * * * We cannot consider this certificate as evidence of a grant to the lot-holders of any interest or title in the soil. * * * Taking it for a grant, it is only for the life of the lot-holder, and at the very time it would be needed for his own interment his title would cease. Without accompanying conditions and regulations, it is a very loose paper.” In Dwenger v. Geary, 113 Ind. 106, 14 N. E. Rep. 903, where the Coppers Case is commented upon, quoted from, and approved, the receipt seems to have been in substantially the same form as the present. The court found that John Geary had never received any conveyance. “The only instrument executed,” said the court, “was a receipt for money. This, and nothing more, does he [Geary] hold in the form of a written evidence of title. It is clear, therefore, that he is a mere licensee. This license conveys no interest in the land. It does no more than confer a privilege.” In that case the supreme court of Indiana was not considering the possibility of specifically enforcing such a privilege. The question was whether an injunction should be granted to the authorities of the church restraining the receipt-holder from attempting to exercise the privilege implied by its terms; and such injunction was granted. And in Maryland (Partridge v. First Independent Church, 39 Md. 631) it was held that a certificate with words of grant to the party, “his heirs and assigns, forever,” conveyed “no estate or title, nor a grant of an easement, because the instrument was not under seal and recorded, so as to be effective to convey such interest.” It seems useless to multiply authorities upon this point, for the present case is not as strong in its equity as the weakest of those already cited. In the absence of any paroi testimony, and standing upon the naked possession of the receipt, how is it possible here for a court of equity to decree specific performance of a supposed contract for the grant of an easement? We are asked to imply all the terms of a complete and specific agreement from the words in the receipt, “amount of purchase money oí a grave, two feet by eight, in Calvary cemetery;” the two feet by eight being located beneath the superintendent’s signature as “grave 9, plot F, section 8, range 56.” The amount of purchase money of a grave. Was the contract completely fulfilled when a “gravé” was opened for Mrs. McGuire, and her body permitted to rest there? Can it be said that even that question is entirely free from doubt? Or was the contract personal to McGuire, and did it terminate, as suggested in Kincaid’s Case, ubi supra, upon his death? If the agreement to be implied from the receipt passed to McGuire’s administrator, what actual right thus passed? If this receipt implies a property right to burden the soil with as many bodies as can be decently placed in the located two feet by eight, can this admistrator renew his demand from time to time? If so, can he place there, for a consideration paid to him as the representative of McGuire’s estate, the bodies of strangers in blood to the family, provided they are Catholics ? Could McGuire himself have done that under this receipt? And in this process of burdening the soil with numerous bodies, in or out of the family, how deep might McGuire have dug, and how deep may this administrator now dig? The mere outlining of these questions clearly indicates that the receipt, to again quote the language used in Kincaid’s Appeal, “ without accompanying conditions and regulations, is a very loose paper.” We look in vain throughout this case for any such accompanying conditions or regulations. Even tlie cemetery rules, so far — 350 — as they were read in evidence and appear in the printed case, shed no light upon the obscurity involved in the language used in this receipt; nor do they indicate, directly or indirectly, the precise terms or the specific conditions of the agreement. Nor does the undertaker’s testimony, as to the usage of the cem.etery, establish any definite rule, either as to the allowable depth of the grave, or as to the number of bodies which the receipt-holder is permitted to place there, or as to the character or personality of the occupants. The entire testimony on that head was as follows: “I have been in the undertaking business about fourteen years, and during that time have made a great many interments in Calvary Cemetery, and am familiar with its regulations. In the old ground graves are usually dug eight feet deep, and in the new ground now they are dug nine feet deep. The grave described in plaintiff’s Exhibit A is in the old cemetery. It is usual to bury more than one body in a grave. Question. How many bodies can be safely and properly buried in this grave? Answer. Four bodies, and sometimes more. I have got three in mine, and there is room for two more. I have known numerous cases in which two or three bodies have been buried in one grave in Calvary Cemetery. I can name my own case,—my sister and father and mother, and room for two more. ” The case on this head is thus clearly within the principles laid down in Wiseman v. Lucksinger and Cronkhite v. Cronkhite, above cited. It is also within the rule as to part performance. The act of permitting Mrs. McGuire’s body to burden the soil was in no proper sense an act of part performance. It was simply a partial enjoyment of the privilege. It was an act of burden on the part of the licensor; of enjoyment on the part of the licensee. McGuire never expended a penny upon the grave. The trustees were guilty of no such conduct as to lead McGuire—to quote again Judge Danforth’s words in Wiseman v. Lucksinger—“to erect permanent works, or valuable and lasting im pro vein ents. ” Nor was there any other fact which would make the revocation of the license, or the refusal to fulfill the implied obligation,—whatever it may have been,-—a fraud upon McGuire or his legal representatives. It does not appear that McGuire ever placed even a headstone upon his wife’s grave. The part performance, therefore, (or the complete performance, as the receipt may be viewed,) was wholly on the side of the licensor; and, as we pointed out in the Coppers Case, the payment of the consideration did not operate as such part performance. People v. Trustees, (Coppers Case,) 194, citing Story, Eq. Jur. § 760; Rhodes v. Rhodes, 3 Sandf. Ch. 284. See, also, on the point under consideration, the cases already cited of Wiseman v. Lucksinger and Cronkhite v. Cronkhite. I have thus considered this case precisely as though the rights of property claimed by the plaintiff had come from a secular cemetery. The weakness of the plaintiff’s equity is still more strikingly apparent. The record contains an express admission by the plaintiff of the allegation in the answer that the cemetery lands in question were set apart and consecrated, with appropriate religious ceremonies, by the ministry of a priest or priests of the Roman Catholic Church, for the exclusive purpose of the burial of the remains of persons who may die in communion with that church. McGuire was a Catholic. As such, he entered the denominational domain; as such, he obtained the receipt in question from the denominational cemetery office. What transpired at the time he so obtained that receipt is, as we have already seen, entirely unknown. What may safely be affirmed, however, is that he sought burial privilege in a denominational cemetery thus consecrated to the exclusive purpose of the burial of those dying in communion' with the church. That denominational rule must certainly be implied (as part of the agreement) from the receipt, and the surroundings under which it was sought and obtained. It is as though the receipt had read: Received from John McGuire $10, being amount of purchase money of a grave, two feet by eight, in the ground of Calvary Cemetery, which has been consecrated for the exclusive purpose of the burial of the re — 351 — •mains of persons who may die in communion with the Roman Catholic Church. That is the paroi agreement,—the only one which can possibly be implied. The plaintiff, too, recognized this, for he averred in his complaint that McGuire died in the Catholic faith and in communion with the church. And it was only when, upon the trial, the difficulty of proving affirmatively the latter assertion weighed upon him, that he struck it from his complaint, and claimed that it was superfluous. Now, who is to determine whether McGuire died in that communion? Mr. Justice Daniels admits that it is the hierarchy, but he thinks that the chosen judges of the church must proceed according to the principles of the common law; that they can only act upon evidence, (as applicable to church law;) that the accused is entitled to a hearing; and that if those “first principles” which govern in the ordinary administration of justice are ignored, the authorities of the church exceed-their jurisdiction when they decree that the holder of the receipt died out of communion with the church. With great respect and diffidence, I venture to differ with the conclusion. In my judgment, McGuire contracted for the exclusive jurisdiction of the church with regard to the question of communion. Spiritual questions are solely for the determination of the church authorities. Over their action in the domain of church •discipline or excision the civil courts exercise no revisory power. Shannon v. Frost, 3 B. Mon. 253. There the court said: “We cannot decide who ought to be members of the church, nor whether the excommunicated have been ,justly or unjustly, regularly or irregularly, cut off from the body of the church. We must take the fact of expulsion as conclusive proof that the persons expelled are not now members of the repudiating church; for, whether right or wrong, the act of excommunication must, as to the fact of membership, be law to this court.” The same doctrine was maintained by the supreme court of Pennsylvania in German Reformed Church v. Seibert, 3 Pa. St. 291; and the additional suggestion was there made that under no circumstances would the civil courts interfere until the wronged party had exhausted his remedy within the church by appeal to its highest tribunal. This doctrine is peculiarly applicable to the present case, where it is conceded that an appeal to Rome lay from the decision of the ordinary of this diocese forbidding the burial of McGuire, and that no such appeal has been taken. The language of the Pennsylvania court is exceedingly apt, and I quote the most material part of it: “If, therefore, the relator is injured by the decree of the consistory, his remedy is by appeal to a higher ecclesiastical court, which no doubt (and it is indecorous to suppose otherwise) will afford him redress by reversing whatever may have been done by the inferior court inconsistent with the canons of the church. That the power of the classis and synod is advisory only matters not, as we cannot suppose their decision will be disregarded; and, if it should be, it will then be time enough to seek redress from the civil authorities. The decisions of ecclesiastical courts, like every other judicial tribunal, are final; as they are the best judges of what constitutes an offense against the word of God and the discipline of the church. Any other than those courts must be incompetent judges of matters of faith, discipline, and doctrine.” To the same effect, in substance, are the decisions in Dieffendorf v. Reformed Calvinist Church, 20 Johns. 12; Robertson v. Bullions, 9 Barb. 64, affirmed, 11 N. Y. 243; People v. German, etc.. Church, 53 N. Y. 103; and Dwenger v. Geary, supra. In the latter case the court said that “no power •save that of the church can rightfully declare who is a Catholic. The question is purely one of church government and discipline, and must be determined by the proper ecclesiastical authorities. ” And again: “ Under the discipline and doctrines of the church, as enforced by the functionaries invested with the power and duty of deciding questions of doctrine and discipline, ■James Geary was not a Catholic, and this decision is final and conclusive.” >On the same principle, the decision that McGuire, although a Catholic, did — 352 — not die in communion with the church, was final and conclusive until reversed,—reversed not by the civil courts, for they have no jurisdiction under a constitutional system which, happily, separates church and state, but by the highest authorities of the church itself. To attempt to exercise jurisdiction to such matters upon the plea of want of jurisdiction in the church authorities of first instance would be the entering wedge whereby the symmetry of our governmental system with regard to church and state might readily be destroyed. And, after all, what do we question, when lookihg into the ordinary’s jurisdiction, but his procedure? Shall we go further, and decide that he has no jurisdiction, within his sphere, to decree that a Roman Catholic died out of communion with the church, because the testimony upon which he acted was unsupported by an oath? Must he also notify the next of kin, or the executor or administrator, of a proposed hearing, produce his witnesses in their presence, permit them to cross-examine, and then to produce their own witnesses? Is he without jurisdiction if he deny them counsel? And all this while the dead body is waiting his decision. Where does the right to question the jurisdiction begin, and where does it end? It seems to me that the ordinary’s jurisdiction in spiritual matters cannot be questioned by the civil courts at all. He may act upon the best light he can obtain, however informal the source; and we cannot review his judgment, however out of touch with common-law principles may have been his means of ascertainment. If the ordinary acts capriciously or arbitrarily, there is an appeal to Rome. If the appellant is there again defeated, it will be time enough to inquire whether he has or has not contracted for the possibility of such injustice; and whether, even then, the facts, and the laws applicable thereto, would warrant a court of equity in entering the spiritual domain to redress a mixed temporal and spiritual wrong. For we cannot overlook the fact which pervades this entire controversy that it is not the mere right to be buried in two feet by eight of ordinary earth which the plaintiff seeks to enforce, but plainly the right to be so buried in consecrated earth. It is thus the spiritual right which, in substance, he asks us to enforce; that is the agreement, so to speak, for consecration predicated upon communion. The rest is but a temporal incident. The world is all before this plaintiff to secure for his testator mere burial. The secular cemeteries, with their regular and binding deeds, were open to McGuire, and are yet open to his representative. But that is not what is required or desired. What the plaintiff insists upon is the burial of McGuire in the same consecrated earth where the body of his wife now rests. That, however, is something which the civil courts are powerless to compel, under such a contract or understanding as that which here forms the basis of the plaintiff’s rights and of this action. The Guibord Case, (Brown v. Cure of Montreal, L. R. 6 P. C. 157,) from which the learned counsel for the appellant quotes so fully, has no conceivable applicability here. That case proceeded upon rules referable to a system in which church and state are blended. Under that system a British subject is entitled to burial in his parish church-yard without regard to contractual locality, and the question of his right to such burial is essentially for the civil courts, in the exercise of their quasi ecclesiastical jurisdiction. The privy council, in opening the discussion, declared that the question to be decided was “the right of Guibord to interment in the ordinary way in the cemetery of his parish. * * * It may be observed that the cure and marguilliers are only proprietors of the parochial cemetery in the sense in which a parson in England is the owner of the freehold of the church-yard; that is to say, subject to the right of the parishioner to be buried therein.” In that case the church authorities offered to permit Guibord’s burial in that part of the cemetery which was unconsecrated. But the court determined that he was entitled to be buried in the consecrated part, and even queried whether they might not command the church to so bury him with its ordinary and appropriate re — 353 — ligious rites and service. “ The payment of dimes to the clergy of the Roman Catholic Church,” said the court, “by its lay members, and the ratability of the latter to the maintenance of parochial cemeteries, are secured by law and statutes. These rights of the church must beget corresponding obligations, and it is obvious that this state of things may give rise to questions between the laity and clergy which can only be determined by the municipal courts.” Even the observation made by Lord Piiillimore, that “if this church were to be regarded merely as a private and voluntary religious society, resting only upon a consensual basis, courts of justice are still bound, when due complaint is made that a member of the society has been injured as to his rights in any matter of a mixed spiritual and temporal character, to inquire into the laws or rules of the tribunal or authority which has inflicted the alleged injury,” must be taken as applicable to the parish church-yard system; that is, to the parish church-yard or cemetery of any private and voluntary religious society in the kingdom, resting only on a consensual basis. The general right of a British subject, a member of such society, to burial in its parish churchyard or cemetery, is thus held to be a matter for consideration and adjudication by the courts construing the laws or rules of such consensual society. Throughout the ease there is not a suggestion of contractual relation, nor of a right to burial in any particular plot. It was simply a judicial review, authorized by the law of England, of the action of the Roman Catholic Church in Canada; and thereupon the privy council examined the laws of the church, and held that its authorities had erred. We have no such system of jurisprudence here. In this, I must be permitted to say, we are fortunate, for, while human nature is what it is, there must always be more or less of religious faction, with its intensity of bitterness, in every theological establishment, however well disciplined and authoritative. And I can conceive of nothing more surely tending to weaken respect for judicial authority than the bringing of such factional controversies before the ordinary tribunals of our country, and making the people’s judges final arbiters thereof. In conclusion, I must say a word with regard to the present record. I have been somewhat embarrassed by the peculiar character of the findings made by the learned judge at special term. They seem to me to be inconsistent and contradictory in some important particulars, and they can only be reconciled by treating the eleventh, thirteenth, and fourteenth findings of fact as really conclusions of law erroneously deduced from the accurate findings of fact numbered second, third, and fourth. These latter findings are supported by the uncontradicted testimony, while the subsequent findings to which I have referred, as well as the first and second conclusions of law, are implications not borne out by such testimony. But as, upon the pleadings and proofs,— the latter undisputed,—and the findings of fact really applicable to such proofs, the third legal conclusion (namely, that the complaint be dismissed) was fully justified, the judgment appealed should be affirmed, with costs.