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no such status, and several cases were cited in support of this contention, including
that of Lee against Fagg and Mummery, the latest decision on the question of
interests, in the Law Reports 6th Privy Council page 36. The result of the decision
appears to come to this, that to entitle a person to oppose the granting of a Faculty
he must shew some interest in the subject matter of the application. In some cases
the interest required will be that of a resident ratepayer, in others it may be of a
different description. Take for instance the grant of a Faculty involving among
other things the removal of a family vault, it cannot be contended that a representative
of a family, for whose use the vault was granted, would be disqualified
from appearing on the application to protect his interest in the vault, by reason of
his being neither a resident nor a ratepayer in the Parish. In the present case,
independently of any general interest Mr. Merceron or Mr. Wilson may be supposed
to have with a view to the interest of the tenants present and future of their property,
Mr. Merceron is owner of certain houses in Fuller-street. These houses form a
part of a small block of houses the front house of the block being in Church-row
immediately opposite to and about thirty-two feet from the proposed building. As
one of the purposes of the mortuary is the reception of bodies of persons who have
died from infectious diseases, and as Mr. Merceron's houses in Fuller-street are just
at the back and in close connection with the house in Church-row and not more than
seventy yards from the proposed building, it occurred to me, especially on inspecting
the site, that the Court ought not to hold that Mr. Merceron was without a possible
interest in this suit. For if by any means whatever, whether owing to the close
proximity of the mortuary, or to the want of proper precaution, infection were to
spread to the houses in Church-row this might injuriously affect houses in Fullerstreet.
The true test of an interest in cases of this kind may often be whether the
erection of a mortuary may by any possibility affect the interest of the property of
the opponent.
I will now proceed to consider the objections taken by the counsel for the
defendants to the issuing of the Faculty prayed. It was said that the appropriation
of a portion of the Churchyard for any of the purposes named is contrary to law as
being the appropriation of consecrated ground for secular or profane purposes. It
appears to the Court for reasons which I will presently state that this objection has
force in reference to that part of the application which relates to the erection of
rooms for holding of coroners' inquests and for living rooms of the keeper of the
mortuary, but not to the erection of the mortuary itself, which was aptly expressed
by Dr. Spinks to differ only from a vault or grave in being a temporary instead of a
permanent resting place for ihe dead. It cannot I think with accuracy be said that
the appropriation of a small portion of the Churchyard for the use of the Parish for
such a purpose is an illegal diversion of the ground from parochial and ecclesiastical
purposes to profane or secular purposes. In many Churchyards there may be seen
small erections for this purpose, and within the last twenty years, since the closing
of the London Churchyards for the purpose of ordinary burials, several Faculties
have been granted from this Court for the erection of a mortuary for the use of the
Parishioners in their Churchyard, and I can see no reason or principle in the Court
departing from those precedents in cases where it is satisfied that it is essential for
the health of the Parish that there should be a mortuary and that the Churchyard is
a convenient site for it.
It was further argued for the defendants that assuming the Court to have jurisdiction
to grant a Faculty for the erection of a mortuary in an ordinary Churchyard,
that in this particular instance it was precluded by the terms of the ibth George II.
chapter 28, a private act constituting the hamlet of Bethnal Green a separate Parish
of St. Philip's, Stepney.
In 1741, the date of the act in question, it was necessary by the then state of the
Law to obtain an act of Parliament to authorise the creation of a new Parish and
for this purpose the act referred to was passed. It contains as might be expected a
provision relating to the Churchyard and provides that the piece of ground then set
apart for and forming the present Churchyard should be a cemetery or burial ground
for the inhabitants of the said hamlet for ever, using the same terms as are usually
to be found in deeds of conveyance granting lands for the purposes of Churchyards.