Judgment — Sir  fVilliam  Scott.  This  is  a  case  of  office  promoted  against  Thomas
Calcott,  for  three  offences  of  the  same  general  description,  in  erecting  tombs  in  the
church-yard  of  the  parish  of  Kensington,  without  leave  of  the  ordinary  or  the  church-
wardens. There  is  no  question  remaining  as  to  the  jurisdiction,  that  point  having
been  fully  debated  on  the  admission  of  the  articles.  The  church-yard,  as  well  as  the
church  is  the  freehold  of  the  minister,  subjetet  to  the  right  of  the  parishioners  for
interment.  Ancient  custom  often  annexes  fees  for  erecting  a  stone,  or  any  thing  else,
by  which  the  grave  may  be  protected  and  the  memory  of  the  person  interred  pre-
served. It  is  no  general  common  law  right;  but  custom  will  interpose,  and,  where
it  is  shewn  to  be  customary,  such  practice  will  be  supported.  As  to  buildings  of
height,  the  authorit}'^  is  reserved  to  the  ordinary ;  and  permission  ought  not  to  be
granted  without  his  authority  in  some  manner  interposed.  The  proper  mode,  strictly
speaking,  is  to  apply  to  the  ordinary  for  a  [15]  faculty,  who  calls  on  all  persons  having
a  right  to  shew  cause  why  it  should  not  be  done,  and  hears  and  determines  on  the
force  of  any  objections  that  may  be  made  against  it.  The  3d  Inst.  (.3  Inst.  p.  202)
leaves  the  matter  at  large ;  but  all  commentators  say  that  the  ordinary  is  to  judge  of
the  convenience  of  allowing  tombs  or  monuments  to  be  erected,  and  that  if  done
without  his  consent,  he  has  sufficient  authority  to  decree  a  removal.  This  is  the  rule
of  law  laid  down  in  Gibson  (Cod.  p.  454),  and  therefore  the  Court  has  only  to  see
how  it  has  been  observed ;  for  although  no  particular  inconvenience  may  have  been
sustained,  if  a  general  rule  has  been  infringed,  it  will  be  sufficient  to  found  the  censure
of  the  Court ;  since  it  is  not  necessary  that  a  special  inconvenience  should  be  proved
in  any  particular  instance.
