SMITH, Justice: The Plaintiff's pretension is, that the corporation are charged with the preservation of the public peace, and that this is a corporate right, and that their omission to do it, gives rise to their liability. This pretension is not supported by the clauses of the act of incorporation, which refer to the police force, and which do not point out what the duties of the corporation are, as regards the public peace. This arises merely by inference, that if the corporation raise a police force, they are bound to keep the public peace. The statute, however, does not go so far as this, it does not say so much as the Plaintiff has said in his declaration, that the corporation shall be liable for breaches of the peace. There are two classes of obligations affecting corporations, 1° those arising out of their ministerial character, and 2° such as attach to them in their high public municipal character. The liability of a corporation is only for acts or omissions purely ministerial, never for cases where it is the reflective agent of the state, having to exercise a quasi judicial discretion. In this case the duty of the corporation was not of a ministerial nature, but of a high judicial character: the demurrer, therefore, must be maintained, and the action dismissed (1). (1 D. T. B. C., p. 408.) CARTER and CARTER, for Plaintiff.

PELTIER (Attorney) and DUNKIN (Counsel), for Defts.

INHUMATION.-EGLISE ANGLICANE.

SUPERIOR COURT, Quebec, 21 July, 1851.

Before DUVAL and MEREDITH, Justices.

Ex parte WURTELE, Petitioner for a writ of mandamus.

Jugé : Qu'un ministre de l'Eglise anglicane, dans une paroisse dans laquelle se trouve un cimetière approprié et consacré par les autorités de sa propre Eglise, ne peut être contraint d'inhumer les morts dans un endroit qui n'a pas été sanctionné ou approuvé comme un cimetière par les autorités de cette Eglise.

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DUVAL, J. This is an application for a mandamus to the Lord Bishop and Rector of Quebec to compel the burial of

(1) Angell and Ames, on Corporations, pp. 30, 31. The following are the leading English cases referred to at the argument: Jackson vs. Inh. of Calesworth, 1 T. R., 71, 73; Russell vs. Men of Deron, 2 T. R., 667, 673; Lynn vs. Turner, Comp. 86; Lyme Regis vs. Henley, 5 Bing., 91; also Bacon's Abrid., verbo Hue and Cry; Buller's N. P., same work; Comyn's Digest, verbo Hundred; Petersdoff's Abrid., same word. Amongst the French authors, Guyot, verbo Quasi-Délit; Domat, liv. II, tit. VIII, sec. 4; Dareau, p. 419, ch. VIII; 11 Toullier, verbo Délit et Quasi-Délit, etc., etc., were cited in favor of the Plaintiff's pretensions.

Charles, infant son of Christian Wurtele. The application is resisted by the Bishop and Rector on the grounds mentioned in his affidavit, which states that his Lordship did not refuse to bury the Petitioner's child, but has always been ready and willing to perform the burial service over his body, at any church-yard, or burial ground, attached to any church belonging to the Church of England.

The parties have not questioned the power of the judges to entertain an application of this nature, and it will not therefore be necessary for me to enlarge upon the point. That they have such power is indubitable at the present day. Wherever a specific legal right exists, a legal remedy may be obtained from the proper court. And in a case like the present one, the writ of mandamus is the proper writ to issue.

On the application itself, I will observe that the right of burial, in the parish church yard, is a common law right recognised by the laws of every civilized country, as inherent in every parishioner, and is founded on a principle of humanity, becoming respect for the dead, and a proper regard for the safety of the living.

Before, however, referring to the other points in this case, I will remark that the provincial statute incorporating this company, confers, with reference to the question before us, no right on the Petitioner which he did not possess before. The Legislature, in incorporating this society, had no other object in view than that of endowing the association with the functions peculiar to corporations, without the slightest intention of interfering with the established rights of the different religious denominations, whose members might become shareholders therein. This is very clearly expressed in the following words: " To provide for the permanence of the establishment, "the decent preservation of the ground, and continued pro"tection to the remains there committed to the earth."

Having thus expressed my opinion on this law, I must now say that after having given the question all the attention which its importance deserves, I find it impossible to grant the prayer of the Petitionner. The authorities which I shall now quote, place it out of our power. On referring to Burns' ecclesiastical law, verbo church, p. 323, the doctrine of the Church of England respecting consecration will be therein found at some length, and the ceremony of consecration particularly mentioned and described. This was not introductory of any new law or religious rites. If we look at the Edinburgh Encyclopedia, verbo Cemetery, p. 547, we shall find that it had existed for many centuries previous. The origin or cause is here said to be obscure, and that it was introduced about the year 590. But the continental writers trace its origin to the

earliest ages of Christianity, and when we are reminded that among the Romans, the words loci religiosi were applied to the ground in which bodies were interred, and that the ground then ceased to be in commercio, it is difficult to believe that the earlier Christians would have shown less respect for their dead than was shewn by the Pagans (1).

On what other grounds can we account for the privileges attached to cemeteries? In Comyn's Digest, verbo cemetery, we read Cemeterium gaudet eodem privilegio quo Ecclesia. Lind 256. And again:" If any smite or lay violent hands on "another, he shall be ipso facto excommunicated." It would be easy to refer to decisions during the reign of Queen Elizabeth, by which such punishments were inflicted.

So late as 1757, lord Mansfield, in the case of Clark vs. Greaves, stated this to be an indictable offense at common law, 1 Bur., 243. See also 1 Comyn's Digest, 183 D. In 1 Russell, on Crimes, p. 278, we read:" Affrays in a church-yard have "always been esteemed very heinous offences, as being very great indignities to the diyine Majesty, to whose worship and service such places are immediately dedicated and upon this consideration, all irreverent behaviour in these places, has been esteemed criminal by the makers of our law."

Such being the law, and bearing in mind that a portion of this cemetery has been consecrated by the Lord Bishop of the diocese, can we compel the Bishop to recognise, as part of the church-yard belonging to the Church of England, that part of unconsecrated ground in which the Petitioner is desirous of having his child buried? I am of opinion that we cannot.

It has been argued, that by consecrating the ground, it would cease to be in commercio. I have no hesitation in saying that this consecration of the ground would not divest the Petitioner of his right of property therein. Whether dedicating the ground for the purpose of burying the dead therein, would have the effect apprehended, is a question which we are not at present called upon to decide. But I will observe that it is the Petitioner's own act, of which he has no right to complain.

MEREDITH, J.: The Rector of the parish, who is also the Bishop of the diocese, in the affidavit which he has made in answer to the rule served upon him, declares that there has been no absolute refusal on his part to bury the body of the Petitioner's infant son. On the contrary the Bishop asserts, and it is admitted that he would have allowed the interment at the place desired by the Petitioner if the latter would have consented to the consecration of the ground. His Lord

(1) Burns, in which the writer mentions the convocation held so far back as 1661, and another in 1712, and 3 Phil., 276 and 295.

ship in the same affidavit further declares that a portion of the piece of land in this parish, known as Mount Hermon Cemetery, has been set apart for the burial of the dead according to the rites of the Church of England and that the ground thus set apart has, with the consent of the Corporation owning the same, been consecrated as a place of interment by him as Bishop of the diocese. The Bishop is ready and willing to permit the interment of the body in the place thus set apart and consecrated.

The Petitioner will not consent to this, but insists on the body being buried in the ground that is not consecrated.

Viewed in this light, the question reduces itself to this. Can a clergyman of the Church of England, in a parish in which there is a burial ground set apart and consecrated by the authorities of his own Church, be compelled to bury the dead in a place that has not been sanctioned or approved of as a burial ground by the authorities of that Church?

No case that has been cited, or that I have been able to find, would justify us in answering this question in the affirmative.

The 68th canon of the Church ordains that no minister shall refuse or delay to bury any corpse that is brought to the Church or church-yard. The book of common prayer requires the clergyman to meet the corpse " at the entrance of the "church-yard." Burns, in his work on Ecclesiastical law, vol. I, p. 261, says: "Burial in the parish church-yard is a com"mon law right inherent in the parishioners." And in ex parte Blackmore, 1 Barn. and Ald., p. 122, judge Littledale said: "The clergyman is bound by law to bury the corpses "of the parishioners in the church-yard."

It does not however follow that, because a clergyman of the Church of England is bound by law to perform the burial service in the parish church-yard, which in England, in every case, is set apart as such with the sanction of the authorities of his Church, he can be compelled to perform that duty in a place which has not been set apart as a burial ground with the sanction of those authorities.

In each of the cases cited by the learned counsel who argued this case, or to which I have been able to refer, the burial ground in which the applicant sought to cause the interment to be made was a burial ground set apart and used as such with the consent of the ecclesiastical authorities; and in this important particular the present case differs from all those cited.

Were we to grant the present application, we should, as far as depends upon us, indirectly, but most effectually, divest the Church of England of the authority which it has at all

time possessed of determining upon the places that ought to be set apart for the burial of the dead, who have died in the communion of that Church. Such a determination might not in this particular case be productive of inconvenience, but I apprehend that its general results might be very injurious, not only to the Church but to the community at large. I abstain from entering into any argument on this point: for so far as regards the application before us, it is sufficient to observe that as the applicant calls upon the Rector of the parish to perform a particular duty in a particular manner, it is incumbent upon him to show that the law requires that duty to be done in that manner; and in my opinion, the applicant has not succeeded and could not succeed in establishing this.

In connection with this part of the case, it may be observed that in England "burial in the church-yard," as has been shown, " is a common law right inherent in the parishioner. The obligation in England on the part of the Rector of a parish to bury in the parish church-yard is the necessary consequence of the parishioner's right of sepulture in that particular place. The right of the applicant in the present case to inter the body of his infant son in the unconsecrated portion of Mount Hermon Cemetery is clearly not a common law right: it is a right founded merely on a contract between him and the owners of that place and although that contract may give him a right of sepulture there, it cannot impose upon third parties, viz: upon the clergy of the Church of England in this parish, an obligation to attend at that place.

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As to the Statute 12th Vic., cap. 191, incorporating certain persons and their successors, under the title of the Mount Hermon Cemetery," it is sufficient to observe 1st that that statute was not intended to impose, and does not impose any new obligation on the clergy of the parish and 2nd that it had not the effect of making the pieces of land described in it, a church-yard or place of burial within the meaning of the canon of the Church of England which requires the clergy of that Church to bury the dead.

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As in the affidavit which has been produced on the part of the applicant, it is declared" that the ceremony of consecration is not required by any of the canons of the Church of England," and as that ceremony is the cause of the difference upon which it is now our duty to decide, I deem it fitting to refer to some works in which that ceremony is spoken of.

In 1 Jacobs Law Dict., p. 453, we read: "A Church to be adjudged such in law, must have administration of the sa"craments and sepulture annexed to it. The manner of founding Churches in ancient times was after the founders had