THE OFFICE OF THE JUDGE PROMOTED BY

ADLAM v. COLTHURST.

Order made upon a parishioner who had removed earth and human bones from a churchyard to restore them-An excuse that the field upon which he had placed them was no longer in his possession, overruled.

THIS case was first heard before my predecessor, Dr. Lushington, who made an order upon the defendant to restore the earth and bones. The defendant failed to comply with this order, and alleged as his excuse that he had parted with the possession of the field in which they had been placed to his son-in-law, who refused to allow them to be interfered with. He also pleaded bankruptcy in discharge of his costs.

The matter then came before me, and on the 21st of November 1867 I delivered the following judgment.

The defendant thereupon submitted, and filed a certificate of his performance of the decree within the time limited in the judgment.

The case is reported in the Law Reports, 2 Admiralty and Ecclesiastical, page 30.

JUDGMENT. This case was argued before me on the 2d of November, and my judgment would have been given immediately had I not been requested to defer it for a few days, onthe ground that there was a prospect of the matter being arranged out of Court. That prospect has disappeared, and I can no longer delay my judgment. The reasons assigned by the defendant for non-compliance with the order of the Court,

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both as to the payment of the £100 costs, and the restoring the bones and earth which had been so improperly removed, are these, in substance at least: First, he says he is a bankrupt, and cannot pay the £100. Secondly, he says that the field into which he has removed the bones and earth out of the churchyard is no longer his, for he has transferred it to trustees for his son-in-law and daughter, and that he cannot lawfully enter upon it for the purpose of obeying the order of the Court. Looking to the whole of the circumstances of this case, as set forth in the judgment of my predecessor, and the date and character of the pleadings before him, and the minutes of Court, I am sorry to say I have no doubt whatever that one if not both these excuses have been resorted to with the deliberate intention of rendering nugatory and treating with contempt the decree of the Court. With regard to the bankruptcy, it is alleged that the defendant became bankrupt before the decree of this Court was made-that he has an order from the Bankruptcy Court which protects him from the process of this Court. The case cited, Wallinger v. Gurney, shows that the production of an interim protection order under 5 & 6 Vict. c. 116, s. 1, justifies the sheriff in discharging an insolvent out of his custody under a writ of execution, although the debt for which the execution creditor had recovered judgment did not exist until the insolvent's petition had been filed. Therefore, if it be true that the order which Mr. Colthurst has obtained be of this kind, and protects him from debts incurred subsequently to that order, he will, under the authority of this case, be discharged by the sheriff on the production of that order, though he be arrested under the writ issuing in consequence of the decree of this Court. It may, however, be that this £100 costs is not a debt provable under Mr. Colthurst's present petition in bankruptcy. It may also be that, looking to the fact that the date of the defensive allegations given in by Mr. Colthurst in this case, namely, the 21st of February, was the principal cause, according to the opinion expressed by Dr. Lushington in his judgment, of most unnecessary expense; that the date of Mr. Colthurst's becoming bankrupt was the 25th of February; that after this date Mr. Colthurst persisted in carrying on a defence in this cause which entirely failed, in which his creditors would, in no event, have the slightest interest, and which, as I have said, was the principal cause of the costs in which he has been condemned;-looking to all these facts, I am not certain, if Mr. Colthurst is not already protected from the payment of these costs under the order which he has obtained, that he will obtain an extended or fresh order of protection, by which he 1 11 C. B. (N.S.) 182; 31 L. J. (C. P.) 55.

will be enabled to evade this part of the sentence of the Court. At all events, I think the promoter has a right to require this Court to endeavour to enforce the decree for costs which he has obtained in his favour.

Let me here say a word upon the character of the offence of which Mr. Colthurst has been proved to be guilty. I cannot consider it as one of a trivial character. To remove the bones of parishioners from the churchyard into a field where they are to serve the purposes of manure, is a great affront to the feelings of Christian men; a grave violation of the rights of parishioners, as well as plainly contrary to the law of this land. The act is not less liable to this censure, if it be done by a churchwarden, and, as in this case, after he has been apprised of the unlawfulness of such conduct; although Mr. Colthurst may be guiltless, as I have no doubt he was, of any deliberate intention to hurt the feelings of anybody, and may have persuaded himself that no regard for the remains of bodies ought to prevent the making a better pathway to the church. This feeling, however, of respect and pious care for the dead bodies of Christian men is deeply rooted in the inhabitants of an English parish-it is hallowed by many associations, religious and moral, which the law recognises, and which it is the desire of our Church to cherish and promote.

The language of the prayer by which the churchyard is consecrated, while it expresses the mind of the Church, is in harmony with the feelings of the poor as well as the rich parishioner:-" O God, who hast taught us that there is a difference between the spirit of a beast which goeth downwards into the earth, and the spirit of a man that ascendeth up to God who gave it, and likewise by the example of thy holy servants, in all ages, hast taught us to assign peculiar places where the bodies of thy saints may rest in peace and be preserved from all indignities, while their souls are safely kept in the hand of their Redeemer." I need not read more; the remainder of the prayer breathes the same spirit. A great indignity, however unintentional, has been inflicted on the bones of a parishioner in this case, and it is within the especial duty and province of this Court to take care that the indignity, as far as possible, may be repaired. It is contended, however, by the counsel for Mr. Colthurst, that, as he has transferred the field in which he placed the bones and soil to trustees on behalf of Mr. Bromfield, his son-in-law, and that Mr. Bromfield will not permit him to enter such field for the purpose of executing the order of the Court, therefore the Court should decline to enforce its order.

Before noticing the general argument, I think it advisable to

call attention to certain dates and facts as they appear in the evidence.

On the 6th of September in last year, Mr. Colthurst was warned by Mr. Adlam that he was doing an illegal act in removing these bones and soil into his field. Mr. Colthurst continued to remove them, and on the 3d of October transferred by deed this field, with other property, to trustees for the use of his daughter and his son-in-law, Mr. Bromfield. What right had Mr. Colthurst to transfer to anybody this earth and these bones?

On the 10th of December the decree issued from this Court, which was the legal commencement of these proceedings. The articles in this suit were filed against Mr. Colthurst on the 9th of January this year. On the 10th of January, a month after the commencement of these proceedings, the trustees leased to Mr. Bromfield (Mr. Colthurst's son-in-law, and one of cestui que trusts) this field, among other property. It is to be observed that these trustees make no opposition to the order of the Court, but state in their affidavit that they have leased the property to Mr. Bromfield. On the 16th of May the Court made its order against Mr. Colthurst. On the 17th of May, Mr. Bromfield writes a letter to his bailiff, showing clearly the concert between him and his father-in-law to set the Court at defiance. The monition is served on the 2d of June, and on the 3d of July what I must call a farce is acted by Mr. Colthurst and Mr. Bromfield, who, being in the same house, write letters to each. other, evidently for the purpose of being laid before the Court, the father-in-law asking leave to enter the field and remove the bones, the son-in-law refusing him permission. The Court must be blind indeed to be deceived by such devices as these. Moreover it appears that Mr. Bromfield at one time consented to this removal if the costs were not pressed against Mr. Colthurst, and even since the cause was heard few days ago, Mr. Bromfield has offered to allow a certain portion, but a certain portion only, of the soil and bones to be removed. This he has done, it is said, in consequence of a suggestion from me that I hoped this matter might be arranged out of Court. Apart from these considerations applicable to this particular case, let me now consider the general argument addressed to me by the counsel of Mr. Colthurst, the object of which is to show that this Court has no longer any jurisdiction in this case. This argument, carried to its legitimate extent, was stated by the Court, and frankly admitted by the counsel for Mr. Colthurst at the hearing to amount to this, that if a man illegally removed from the consecrated soil of the churchyard all the bones therein interred, including those which, but a few hours before,