McGuire v. Trustees of St. Patrick's Cathedral

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 the Gophers Oase (21 ITun, 181). 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 as such 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.

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 la/nd be perjpeimally burdened. If the plaintiff proceeds as the successor of a mere licensee, 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 (§ 132) says, that “in certain States a parol 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. & Rawle, 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, in the cases to which we were referred, has held that a parol license may, in special cases, have the full 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, they have no authority whatever.” Judge Duer also points out the distinction between an executed license’

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 pa/rol agreement for the grcmt of an easement. In Wiseman v. Lucksinger ( 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 parol 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 parol agreements for the grant of ease ments, when founded upon a valuable consideration, Danforts, J.,

The doctrine of this case was reaffirmed in Cronkhite v. Cronkhite ( 94 N. Y., 323 .) Miller, J., repeated the language of Daneorth, 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 ( 84 N. Y., 31 ; 38 Am. Rep., 479 ) 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 parol 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 id., 403). It is apparent from the statement 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 parol 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 parol agreement. It was not left entirely to the implications deducible from a mere receipt for money. Thus, in Wiseman v. Lucksinger (supra), the

The conclusion of the court upon this branch of the case was that “ the agreement 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 amd enjoyment against the will of. the defendant.”

The case of Cronkhite v. Cronkhite is also very much in point. There the parol agreement was for the laying down of pipes to carry water from a sjuing 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 O. 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.,

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 requires 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 that it can be eventually carried out and enforced.”

In Kincaid’s Appeal ( 66 Penn., 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. * * * however, 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 túrne it would be needed for his own interment, his title would cease. Without any accompanying conditions and regulations it is a very loose paper P

In Dwenger v. Geary ( 113 Ind. 106 ), 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

In that case the Supreme Court of Indiana was not considering the possibility o'’ specifically enforcing such a privilege. The question was whether an injunction should be granted to the authorities of the church, rest/raiming 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., 637 ) it was held that a certificate with words of grant to the party, “ his heirs and assigns forever,” conferred “ no title or estate in the soil, nor could it opierate as a grant of an easement, because it was not under seal nor was it acknowledged and recorded so as to be effective to convey such an 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 parol 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 compílete and specific agreement from the words in the receipt for the amount of purchase-money of 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 P, Section 8, Range 56.”

The amount of piurchase-money of a grme. "Was the contract completely fulfilled when “ a grave ” 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), upion his death ? If the agreement, to be impfiied from the receipit, passed to McGuire’s administrator, what actual right thus passed ? If this receipit impilies a piroperty right to burden the soil with as many bodies as can be decently pilaced in the located two feet by eight, can this administrator renew his demand from

“ 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 noiu they are dug nine feet deep; the grave described in plaintiff’s Exhibit A is in the old cemetery; it is usual to bxvry more than one body in a grrne. Q. How many bodies can be safely and properly buried in this grave? A. Four bodies, cmd sometimes more; I have got three in mine, and there is room for two more / I have known numerous cases m 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

W I have thus considered this case precisely as though the rights of property claimed by the plaintiff had come from’ a secular cemetery. But, when we consider that the transaction was with a strictly denominational cemetery, the weakness of the plaintiff’s equity is still more strikingly apparent. The record contains an express admission by the plaintiff of the allegations 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 Homan 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

It is as though the receipt had read: Received, from John McGuire ten dollars, 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 remains of persons who may die in commu/nion with the Homan Catholic church.

That is the parol 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 commumion 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. Monroe, 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 courL/^

The same doctrine was maintained by the Supreme Court of Penn

“ 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 Calvanistic Church ( 20 Johns., 12 ); Robertson v. Bullions ( 9 Barb., 64 ; affirmed, 11 N. Y., 243 ); People ex rel. Dilcher v. German U. E. St. Stephen's Church (53 id., 103); 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 fnal and conclusive."

On the same principle the decision that McGuire, although a Catholic, did not die in communion with the church, was final and conclusive until reversed, reversed not by the civil courts, for they have

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 awaiting 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 ho 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 Romo. 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 law 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

The Guibord case (Brown v. Curé of Montreal, L. R., 6 Privy Council, App. 157), for which the learned counsel from the apiiellant quotes so fully, has no conceivable application 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 churchyard' 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 Ms parish. It may be observed that the Curé and Marguilliers are only proprietors of the parochical cemetery in the sense in which a parson in England is the owner of the freehold of the churchyard, 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 religious rights and service. “ The payment of dimes to the clergy of the Roman Catholic church,” said the court, “ by its lay members and the rateability 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 Gowrts.”

Even the observations made by Lord Phillimore, that “ if this church were to be regarded merely as a private and voluntary religious society, resting only on 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 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 uneontradicted 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 from should be affirmed, with costs.

I concur in the conclusions arrived at by Mr. Justice Barrett. I think that he has conclusively shown that whatever contract the facts proven establishes, if any, is of so vague and indefinite a character that it cannot be specifically enforced by any court. I think that he has further shown that all that the deceased received was a license which was revocable. No grant or irrevocable right or easement was ever given him, and could not be by the paper he received, without, in' effect, repealing the provisions of the statute in respect to conveyances of interests in land.

If it were possible to hold that there was a valid contract for burial only, and not for an interest in land, there seems to be another ground which is fatal to the plaintiff’s claim. There is no evidence but that if the deceased’s rights of property have been invaded, his estate can be entirely indemnified through an action at law for damages. If it is urged that damages cannot indemnify for the deprivation of burial in this consecrated ground, then the court is called upon to decree that a church shall administer to one who claims to be of its communion its religious offices, and the court is called upon to determine whether the person is or is not in full communion with the church.

I think that it will hardly be claimed that a court could rightfully direct a church to administer a sacrament to a person who claimed to be entitled thereto, but whom the church authorities had declared not so to be, and yet, in the case at bar, this is substantially what the court is called upon to do. It is asked to compel the burial of this man in a particular location, apparently because it is consecrated ground, because, if it is not burial in consecrated ground which is asked for, but simply burial, then sepulchre in a nondenominational cemetery would accomplish the result, and damages would compensate for all invasion to property rights.

Under our form of government we do not think that courts can be called upon to compel churches to administer religious rights to persons claiming to be its members, or perform an act in any way impressed with that character.

The judgment appealed from should be affirmed, with costs.

(After stating the facts, as set forth at the commencement of this case, Judge Daniels proceeded in his opinion as follows):

(dissenting):

By the language of the instrument, and the location of the grave, his representative was entitled to insist upon the right of the intestate to burial in it if he had observed the laws and discipline of the church, under whose authority the property was acquired and controlled. The instrument as it was issued, and the grave was located, created a privilege or license to this effect without conveying a title to the land. (Kincaid's Appeal, 66 Penn., 411 ; Page v. Symonds, 63 N. H., 17 ; People ex rel. Coppers v. Trustees, 21 Hun, 184 .) And the adminis trator was empowered to secure this interment, if the intestate had complied with the laws of the church controlling the cemetery, up to the time of his decease. (2 Blackstone’s Com., 508; Williams v. Williams, 20 L. R., Ch. Div., 659.) And that was the view which was adopted and followed in the decision made at the Special Term. Por it was there held by the court that the plaintiff, as the personal representative of the deceased, was vested with whatever right existed.to enforce the contract to be implied from or contained in this instrument. The action accordingly did not fail because of any infirmity in the right of the plaintiff as the personal representative to maintain it, if that could be done legally, upon the facts made to appear by the evidence.

Upon the trial of the action accepted compilations of the raws of the church were proved and read in evidence, and these laws or regulations defined and declared the causes for which the interment of a deceased person might be forbidden in the consecrated cemetery and grounds of the church; and, so far as they existed and were applicable to this subject, they were required to be observed in the determination of the controversy which has arisen concerning the right of the deceased to burial in this cemetery. By these laws or regulations it was necessary that the deceased should have been during lfis life a member of the Catholic church. If he were not such a member, then his personal representative could claim no right to the interment of his remains in these grounds. (Dwenger v. Geary, 113 Ind., 106 .) But the right to the interment of these remains was not denied for want of any compliance on the part of. the deceased with this regulation or requirement. Neither could it have heen, for it was stated positively by the daughter of the

But that denial appears to have proceeded upon the conclusion adopted by the court that it properlydDelonged, under the usages and discipline of the church, to the decision of the Ordinary or the Bishop of New York to determine whether the deceased was entitled to be buried in this cemetery; and the Ordinary having made a decision adversely to this right, upon evidence sufficient to give him jurisdiction to act, the remains were not entitled to burial in the consecrated ground of the cemetery.

It-is undoubtedly the law that the courts will not review conclusions or decisions of the ecclesiastical authorities of the church relating to mere matters of faith, practice or discipline. (Dutch Church v. Bradford, 8 Cow., 457 ; People ex rel. Dilcher v. German, etc., Church, 53 N. Y., 103 ; Shannon v. Frost, 3 B. Monroe, 253; German, etc., Church v. Seibert, 3 Barr. [Penn.], 282, 291.) But this exclusive authority vested in the church is not applicable to the disposition or determination of rights or interests in property, or those derived from contracts lawfully entered into. As much as- that was stated in Bouldin v. Alexander ( 15 Wall., 131 .) And it necessarily follows, from the nature of the transactions through which rights or interests in property by virtue of contracts may be created, that they are to b governed by the secular law, as they are distinguishable from ecclesiastical subjects, and may only be divested, impaired or forfeited by reason of some act or circumstance upon which the right

But neither one of these rules or regulations vested the clerical authorities of the church with jurisdiction to determine this right of interment in such a manner as to conclude the party entitled to insist upon the observance of this agreement. No hearing whatever has been provided for, or toot place before the vicar-general, by whose order the interment of the remains in these grounds was forbidden. But he acted solely upon information which he had received from no directly responsible source, in reaching the conclusion’tliat the deceased had forfeited his right to this burial. This was done, according to his own testimony, upon mere information; not a safe subject to be relied upon in any case for the determination of rights of property or contract, and the determination was made without any notice to, consultation with, or hearing of any person entitled to represent the deceased or to controvert the correctness of the information received by this clerical official. And under these circumstances the law will not permit a determination arrived at in this manner, to forfeit the right which the deceased may have secured through this instrument to burial in the consecrated cemetery of the church. The legal principle, on the contrary, has been declared to be that “there is nothing which our law denounces more explicitly than the adjudication of the rights of a party, without offering him an opportunity of being heard in his defense.” People ex rel. Waldron v. Soper (3 Seld., 428, 431) and Loubat v. Le Roy ( 40 Hun, 546 ), follow and enforce this principle.

The determination which, in fact, was made in this manner, proceeded upon information that the deceased had died in the Academy of Music, at a meeting addressed by Dr. McGlynn, who had been excommunicated from membership- in the Catholic

Upon his cross-examination he testified that it was a public fact that the deceased had died there. Thereupon the following questions were put to and answered by the witness: Q. I was not there; I did not see him die; you say it came up from the trustees; by what means ? A. The undertaker called upon them. Q. How do you know ? A. The clerk told me. Q. His name ? A. Mr. Brennan. Q. Where did he tell you so ? A. Oh, I can’t remember the exact spot. Q. When did he tell you so ? A. Either the day after his death or the following day. Q. What was said ? A. Simply the fact that he died at the Academy of Music. Q. And on that you issued the order forbidding the burial ? A. I did, sir.

These reports, with the. exception of that as to the fact of the deceased dying at the Academy of Music, were of a loose and unreliable character, and could not legally have been the basis of binding action by the vicar-general. They were in no sense so authentic as to warrant or justify the conclusion that the deceased approved of the actions or expressions of McGlynn, or applauded any remarks or imputation made by him, at the meeting in this manner referred to, or at any other, and afforded no grounds of jurisdiction upon which he could legally or properly act in declaring the right of the deceased under this contract to have been forfeited by any misconduct on his part. The evidence was not of such a nature as to be acted upon, and, therefore, afforded no jurisdiction over the subject-matter, and the want of jurisdiction, or the power to act, may be questioned in the courts by legal proceedings when, ever the legality of the action taken shall be brought in controversy. (Ferguson v. Crawford, 70 N. Y., 253 , 257; Cagwin v. Town of Hancock, 84 id., 532, 541; Craig v. Town of Andes, 93 id., 405.) And to afford jurisdiction by way of support for quasi judicial determination, it must proceed upon at least colorable evidence of the fact. But here no such, or, indeed, any, evidence was supplied.

But beyond this, according to the laws and regulations of the church, which have been made a part of the evidence in the case, the deceased could not be deprived of the right to burial in this cemetery by a simple determination that it had been forfeited or lost by him, for the laws of the church have made this disability to depend entirely, where the deceased shall have been a member of the Catholic church, upon some act, misconduct or omission of the deceased. These laws and regulations have in no manner provided that the right to burial in the cemetery, under an instrument of this description, can be taken away merely by the dictum or decision of a member of the church hierarchy. But the right to such burial by these laws has been declared to be lost, or forfeited, only by reason of actual misconduct on the part of the person in whose behalf it may in this manner be claimed. It is a penalty imposed for misconduct either by means of affirmative acts or delinquent omissions to act on the part of the deceased. Among the causes for which biuial in consecrated ground may be refused are the fact that the deceased died a public sinner, or that he failed to perform some affirmative duty forming a part of his obligations as a member of the church, or had committed some act of scandalous misconduct. The law of the church in these and other matters attaches the loss or forfeiture to the act itself, or to the delinquency of the party, and not to a mere dictum or determination of any member of the clerical authority of the church; and to bring this case within these laws it was necessary, therefore, that the deceased should be shown, as a matter of fact, by way of defense to the action, to have' violated, or become chargeable with, some act of misconduct prohibited by them, thereby forfeiting, under their authority, his right to burial in the consecrated ground of the church. But no such proof in any form has been included in or made a part of this case.

The evidence concerning the conduct of the deceased was obtained from witnesses either related to or knowing him well, and seeing him at meetings of the Anti-Poverty Society, and of

And in this state of the evidence, as it cannot be affirmed that he had violated any rule or regulation of the Catholic faith, it follows that he did not forfeit his right to burial in this cemetery. If upon a mere mistaken view of the facts produced by unfounded reports, which is all that was before the vicar-general, this right of burial may be forfeited, then no security can certainly exist for the protection' of any person acquiring and paying for this privilege of burial. For even the most correct religious deportment may be sacrificed by the malignant and untruthful reports of persons misrepresenting the acts, conduct or sentiments of deceased persons-Instead of the right being maintained, as the law requires it to be, as one of a proprietary character, it may then be overthrown or forfeited after the decease of the party securing it, without any available means of avoiding the result. No Catholic, whatever his standing may be, will be entirely removed from this danger, if upon

Judgment affirmed, with costs.