The Salisbury Times, Wilton Times & South Wilts Gazette – Friday April 10, 1908
SARUM COUNTY COURT.
Yesterday (Thursday).— Before His Honour Judge Philbrick, K.C.
RECTOR AND BURIAL FEES.— IMPORTANT TEST CASE
The Rev. G. D. Shenton, rector of West Grimstead, sued Alfred John Southwell, carpenter, of West Grimstead, for 9s. 6d. for services rendered.
In consequence of the illness of Mr. W. H. Jackson. the plaintiff conducted his own case, and Mr. W. J. Trethowan appeared for the defendant.
Mr. Shenton said this was a rather important test case, and referred to small churchyards as affected by recent legislation. It was a claim for 9s. 6d. in connection with the burial of parishioners, as against 5s. which had been offered. The word “fees” was used for the 5s. and the 9s. 6d., and was perhaps rather unfortunate as suggesting more or less an honorary payment such as a fee for erecting tombstones. The guinea was paid to the clergyman without any service at all for erecting a tombstone.
The Judge : That is because it is supposed to go upon the freehold or property of the parson.
Mr. Shenton went on to say that the claim was not in respect of spiritual services—the taking of the funeral or anything like although, of course, as His Honour knew, payments were sometimes made by custom. The fee was 5s for out of pocket expenses, but even that did not cover the direct expenses, let alone the indirect expenses of funeral. That was the point he had tried to impress upon those concerned, but they did not seem to understand it. The two preceding rectors of the parish for about forty years had been wealthy men and had paid the expense. Those men had neglected to provide certain things that were necessary, and they had also neglected to keep the churchyard in order. One admired their kindness and their charity, but people were now claiming them as a right.
The Judge : Has this anything to do with the digging of the grave or the tolling of the bell ?
Mr. Shenton said he was coming to that. He had attempted to get the churchyard in order and he had attempted to get the parishioners to help him. He turned up himself with his scythe and bill-hook, but no-one came to assist him (laughter). He was not very great with a scythe, but he worked hard at the churchyard during the summer. The churchyard adjoined a farmyard, and a large number of turkeys strayed into the churchyard (laughter). He supposed he could not blame the farmer, because he ought to provide a fence to keep them out, but unfortunately he had no funds. The legal position was that the churchyard was his freehold and, if he wished to do so he might keep his cows and horses there to graze, and he paid rates and taxes for it in the same way as he would for any land in his possession, but, of course, to use his right of turning cows into the churchyard was utterly against good taste and modern custom. In fact it was not decent.
The Judge: The parishioners don’t expect it to be done, but in many places grass is kept short by sheep.
Mr. Shenton : I have done so by turning a large flock in for one day, because it is impossible to mow churchyards. In former times the funds for keeping the churchyards in order used to come from the parish rates, but the power of levying these rates was taken away by the Church Rate Abolition Act in 1868. Another way in which recent legislation touched the matter was by the Burial Law Amendment Act, by the provisions of which any person might be buried with or without any ceremony in his (Mr. Shenton’s) churchyard; that was to say, an open blasphemer might be buried, and have all the care and all the attention at a cost that did not cover the cost of digging the grave and finishing it off.
The Judge: Only the parishioners. A parishioner has the right, if the relatives desire, to be buried in any particular part of the churchyard, and then they must pay for it.
Mr. Shenton : I always allow the people to choose. Continuing, the rector said another point was that the Workmen’s Compensation Act obliged him to insure his sexton. It was small expense, but of course the whole matter was a small one because the average number of funerals per year was only three. The digging and filling in of the grave, at the usual price, cost 4s 6d. so that, taking the yearly average to be three, that amounted to 13s 6d. The nature of the soil was such that the grave could not possibly be completed until about three months had elapsed and another shilling had to be paid to the man who finished off the grave. The insurance cost him 7s. 6d., and he had to pay rates and taxes on the churchyard which came to about 4s. so that the whole cost of the three funerals per year was £1 8s., quite apart from keeping the churchyard in proper order. Fifteen shillings only was paid in fees for the three funerals, so that he had to find 13s. a year at least. That left out the cost of providing suitable furniture. He had no tressels in the church to support the coffin, and he would have to provide them at a cost of 10s., but he had no funds, and he would have to pay for them out of his own pocket. In conclusion, the rector said the position was that any undertaker could come along and take 5s. out of his pocket. He had appealed to His Honour in the first instance because he did not want to appeal to the Ecclesiastical Commissioners. If he appealed to them they would be sure to say that he was to have a fee of 14s. 6d. or 15s.
Mr. Trethowan said that if the Rector applied to the Ecclesiastical Commissioners they could not grant him any fees at all, because fees must be paid according to custom or by Act of Parliament. Mr. Trethowan quoted authorities bearing out his contention, and proceeding said that prior to the Church Rate Abolition Act there was payable a fee of 1s. for the tolling of the bell, and 2s. 6d. for the digging of the grave. He would call witnesses to prove that up to that time, that was the only fee payable. After the passing of the Act the table of fees which he had before him was prepared by the bishop of the diocese, and a copy of it was lodged in the vestry of the church, and a copy was handed to the clerk who dug the grave. According to that table 5s., and that sum only, was paid to the person who dug the grave. Mr. Martin, a former rector, used to tell the parishioners that there was no fee for a burial, because a man must be buried, but there was a fee for marriage, because a man need not be married unless he liked (laughter).
The Judge: Unless the lady likes (laughter).
Mr. Trethowan added that should prove reference to the authorities that the only fee payable was 5s. to the Clerk, and that nothing could be demanded by the parson, who was obliged to do his part for nothing.
John White said he was 73, and had lived at West Grimstead for 67 years. His mother died in 1868, and he paid 1s for the tolling of the bell and 2s. 6d. for the digging of the grave. He paid nothing to the clergyman, nor was he asked to do so. His father died in 1878, and was also buried in West Grimstead, and on that occasion, owing to the abolition of the church rate, he paid 5s. to the Clerk.
Joshua Bundy. Witness’s daughter died about ten years ago and was buried by Mr. Martin. On that occasion he paid 5s. to the Clerk, but he paid nothing to the clergyman. Asked in cross-examination by the Rector whether he did not think that if another law had been passed, which added to his (the rector’s) expense, he ought to increase the fee, the witness said he did not know about that.
The defendant, Alfred John Southwell, carpenter, living at West Grimstead, said he had lived in the village for nineteen years, and had conducted a good many funerals, but he had never paid more than 5s, to the clerk. The clergyman had never demanded fees from him, nor had he ever heard of the clergyman demanding them from anyone else in West Grimstead. Henry Tucker died on January 15th, and he (Southwell) was called in to superintend the funeral arrangements. The Clerk was not there to say the responses or to toll the bell, and under the circumstances he asked the rector to whom he should pay the fees. The rector replied that he had better pay him, and he offered Mr. Shenton 5s., but he returned it, saying he must have 9s. 6d., 5s. his own fee, and 4s. 6d. for the clerk. He told the rector that he was not aware that anyone had to pay as much, but Mr. Shenton replied that he meant to have it. The matter was spoken about at a parish meeting on March 20th, at which Mr. Shenton was present.
Mr. Trethowan : The parish meeting did not agree with Mr. Shenton?
Mr. Shenton : I object.
The Judge : A parish meeting generally agrees with what it wishes (laughter).
Mr. Shenton : What happened the parish meeting is all sub judice. It was utterly out of order because it took cognizance of matters which were not on the agenda. I am in correspondence with the Clerk of the County Council with regard to it, and he tells me that the whole thing is entirely illegal.
The defendant, in cross-examination, said he did not make enquiries as to the cost of the funeral beforehand.
Thomas Dowty, builder and undertaker, said he had conducted funerals at West Grimstead for 20 years, and when commissioned by the relations to pay the fees he had always paid 5s to the clerk. He had never paid anything to the clergyman. On March 28th, he conducted the funeral of Mrs. Bundy, and the rector wrote and told him that he had not received his fee, which was 9s. 6d. In answer to questions put by the Rector, Mr. Dowty denied that the late Mrs. Bundy’s husband offered him the 9s 6d, and that he refused to take it.
Tom Earley, labourer, and formerly parish clerk at West Grimstead, said he had always received 5s for digging the grave, and had never been paid more than that.
Mrs. Annie England, Edwin Hopkins, retired baker and grocer, William Harding, farmer, and Walter Thomas Fulford, farmer, all of West Grimstead, gave evidence to the effect that they had never paid more than 5s, and that to the clerk. Mr. Harding’s memory carried him back 48 years, and he said he had never heard of the rector charging fees, whilst Mrs. England said the rector told her that his fee was on account of divine service.
David James Read, farmer, and chairman of the West Grimstead Parish Meeting, stated that at the meeting on March 20th a resolution was passed on the subject, and Mr. Shenton was present.
The Judge held that what was said was not evidence against Mr. Shenton. If two men were using all sorts of had language in the street it could not be said to be evidence against the people who heard it.
Mr. Read : Mr. Shenton was present, and we asked him what his grounds were, and replied that he was not going give himself away there (laughter).
In cross-examination the witness admitted that according to law the agenda, giving notice of the business to be transacted at the parish meeting, should be published on the church door for eight days prior to the meeting. It was very uncertain, however, as to what point would be raised for discussion.
Mr. Shenton : The whole thing was sprang on me, your Honour.
The Judge said he could not take any notice of what took place at the parish meeting. This was a case in which there were legal difficulties, and although one had a general knowledge of law, ecclesiastical law stood very much by itself. He, therefore, thought it would be better if he looked into the question and gave his judgment at the May Court.
The Salisbury Times, Wilton Times & South Wilts Gazette – Friday May 22, 1908
SALISBURY COUNTY COURT.
Yesterday (Thursday).—Before His Honour Judge Philbrick, K.C.
THE GRIMSTEAD BURIAL FEE CASE.
His Honour delivered judgment in the case of Shenton v. Southwell which was heard at the last court. It was an action in which the Rev. G. D. Shenton, rector of West Grimstead, sued Alfred Southwell, carpenter and undertaker, of the same village, for 9s. 6d. in respect of a burial fee.
The case was fully reported in the [Salisbury] Times last month, and it will be remembered that the rector said he brought the matter before the learned judge as a test case. He stated that the fee which had been paid for interment was 5s., but the fees received were not sufficient keep the churchyard in proper order, so few were the funerals. He maintained that the rector ought not to be called upon to contribute towards maintaining the churchyard out of his private purse. At a recent funeral the defendant who acted as undertaker, tendered 5s. but he declined that and applied for 9s. 6d. which was refused. The defendant on the other hand relied on the admitted fact that 5s. had been the fee paid for a number of years and that that was the agreed and customary charge. He called a number of parishioners in support of his case.
On the last occasion Mr. Shenton conducted his own case, and Mr. Trethowan appeared for the defendant. Yesterday the defendant was again represented by his solicitor, but Mr. Shenton was not present, neither was he represented.
His Honour, in giving judgment, said the evidence which was before him consisted of that of a great number of people, more or less connected with the parish, some living in it and some who had had relations interred in it, but it was with regard chiefly to what happened during the time of Mr. Martin. He thought that the earliest account of the fee that he could find in the evidence was given by John White, aged 73, who had lived in the parish for upwards of forty years, and he spoke of the burial of relative in 1868, for which he paid, or was called upon to pay, a fee of 3s. 6d. There was an uncontradicted body of evidence that since that time every person who became responsible for a burial there paid a fee of 5s. There was John White, who had two or three burials after the year 1868, and he was called upon to pay 5s., and it was explained to him by the then clerk that owing to the abolition of Church Rates the fee had been increased, and from that time continuously 5s. was paid and no more. Seven witnesses besides White were called, and they all agreed without exception that 5s. had been demanded and no more, and Earley, one of the witnesses, who was the clerk or sexton who received the money, bore that out, so that on both sides, by the one who paid and the one who received, it had been proved that 5s. was the stated, accustomed and regular fee for interments in the parish. The plaintiff was comparatively a new comer, and he put forward his claim this way, that the fee was in no way for divine service or for the rites of the Church, which certainly were not to be paid for. The churchyard had to be kept up, and there were certain incidental expenses for keeping the place in order and keeping the fence right and preventing trespass by human beings or animals, and maintaining it in a decent and proper condition, so that the rural dean, at bis visitation, might see that it was right. It was quite clear that some years more than the fees would be required, whilst in others it would not be as much, but it appeared, on looking into the matter very carefully, that these fees were very usual in the parishes of England, that they were agreed upon and became a custom with the force of law. He had come to the conclusion that the claim was not well founded in point of law, and he therefore found that the 5s paid into Court was sufficient, and gave judgment for the defendant.
He did not think it necessary to go into the question raised by the defendant that evidence was available to the effect that a statement was made by the rector that he desired to include with the fee services other than out-of-pocket expenses, because he did not think that was material to the case. Mr. Shenton’s expressed admission at the hearing was that the fee was not for divine service in any shape or way. Possibly, no doubt, in ancient times, while Church rates were leviable that fund could be resorted to if the fees did not cover the expenditure from year to year at the wish of the majority of the parishioners at vestry assembled, but the settled sum was all that could be levied now.
Mr. Trethowan said he might point out that Mr. Shenton had not to pay the expenses of the Churchyard at all because these had to be borne by the Churchwardens. The Churchwardens had already done so, and they would do so in the future. Continuing Mr. Trethowan said he thought he was entitled to ask for costs on the higher scale.
His Honour agreed, remarking that the case was one of general public interest. The Judge added that if within three weeks notice of appeal were given he would allow it on account of the importance of the question. It affected the whole class of incumbents throughout the country and affected, of course, the general public.