system of law not to provide a remedy in such a case; ... but the person having charge of it cannot be considered as the owner of it in any sense whatever, he holds it only as a sacred trust for the benefit of all who may from family or friendship have an interest in it." See also Wynkoop v. Wynkoop, 42 Pa. St., 293; 4 Albany Law Jour., 56; Snyder v. Snyder, 60 How. Prac., 368; Weld v. Walker, 130 Mass., 422; Guthrie v. Weaver, 1 Mo. Apps., 136; Neighbors v. Neighbors, 65 S. W. 607, s.c., 23 Ky. L. Rep., 1,433; Buchanan v. Buchanan, 28 Misc. (N. Y.), 261; Johnson v. Marinus, 18 Abb. N. C., 72, and note.1

The law casts the duty of burial of the wife upon the husband, and of the husband upon the wife. In Secord v. Secord (cited in note 1 above), the Court said: "There are cogent reasons connected with public policy and the peace of families, where in the absence of testamentary disposition the possession of a corpse and the right to determine its burial should follow the administration of the estate." Inasmuch as the husband has the first right to administer upon the estate of the wife, and the wife upon the estate of the husband, the law imposes the correlative duty of burial upon the person having such right; and so it has been held that the husband is liable for the necessary expense of the decent interment of his wife from whom he has been separated, whether the party incurring the expense is an undertaker or mere volunteer."

But if the deceased dies intestate, leaving no husband or wife, the duty of burial is cast upon the next of kin, in the order of right to administration."

Where the deceased leaves a will appointing executors, the executors have a right to the possession of the body, and the duty of burial is imposed upon them, but it has been doubted

A valuable note is appended to this last case, citing the law literature of burial-grounds, burials, etc., and also giving in full the opinion of the Special Term of the New York Supreme Court, in the case of Secord v. Secord, not elsewhere reported. And see also The Law of Burial, 4 Bradf., 503 (Matter of Beekman St.).

2 Ambrose v. Kerreson, 10 C. B., 776; Bradshaw v. Beard, 12 Com. B., n. s., 344; Johnson v. Marinus, 18 Abb. N. C., 72; Hewitt v. Bronson, 5 Daly, 1; Cunningham v. Reardon,

98 Mass., 538. See also Gleason . Warner, 78 Minn., 405, where it is held further that when the husband "neglects to discharge the duty of burying his dead wife he is liable to one who provides for her necessary and reasonable burial."

3 Secord v. Secord, supra; Foley . Phelps, 1 App. Div. (N. Y.), 551; Wynkoop . Wynkoop, 42 Pa. St., 293; Bogert v. Indianapolis, 13 Ind., 135; Snyder v. Snyder, 60 How. Pr., 368; Law of Burial, 4 Bradf., 503.

whether at common law a direction by will concerning the disposal of the body could be enforced, and therefore the right to make such direction has been conferred by statute in several States.1

And where a widow ordered the funeral of her husband, it was held that she was liable for the expense, although she was an infant at the time, the Court holding that the expense fell under the head of necessaries, for which infants' estates are liable.'

Generally, the estate of a decedent should be charged with the expenses of burial.'

Such acts as casting a dead human body into a river without the rites of sepulture (Kanavan's Case, 1 Me., 226); stealing a corpse (2 East, P.C., 652) or stealing for dissection a dead body of one executed when the death sentence did not direct dissection (Rex v. Cundick, D. & R., n. p., 13), were indictable offences at common law.*

In the works of the early dramatists, and by some writers of fiction, it has been stated or implied that the body of a deceased person could be seized and detained to compel the payment of his debts. This was never the law. In Jones v. Ashburnham, 4 East, 460, it was held that to seize a dead body on pretence of arresting for debt would be contra bonos mores, and an extortion on the relatives, and that case distinctly overrules any authority to be derived from the case of Quick v. Coppleton, 1 Vent., 161, to the effect that forbearance to seize or hold a body upon such a pretence would afford any consideration for a promise to pay a debt. So also where a jailer refused to give up a body of a person who had died while a prisoner in execution in his custody, to the executors of the deceased, unless they would satisfy

In New York State, section 305 of the Penal Code provides: "A person has the right to direct the manner in which his body shall be disposed of after his death; and also to direct the manner in which any part of his body, which had become separated therefrom during his lifetime, shall be disposed of; and the provisions of this chapter do not apply to any case where a person has given directions for the disposal of his body or any part thereof inconsistent with those provisions." See also Patterson v.

certain claims against the deceased due the jailer, the Court issued a peremptory mandamus in the first instance, commanding that the body should be delivered up to the executors (Reg. v. Fox, 2 Q. B., 247). And in R. v. Scott, 2 Q. B., 248, it was said that a jailer who should attempt to do so would be guilty of misconduct in his public character, for which he would be liable to prosecution.1

How and by Whom the Dead Human Body may be Removed or Exhumed.-Where the right of burial has been exercised, and the body interred in its final resting-place, no person has any right to interfere with it without the consent of the owner of the grave, or of the properly constituted public authorities. In Foster v. Dodd, 8 D. & E., 842-854, it was held that a dead body belongs to no one, and is, therefore, under the protection of the public. If it lies in consecrated ground, ecclesiastical authorities will interpose for its protection; but whether in ground consecrated or unconsecrated, indignities offered to the remains, or the act of indecently disinterring them, are the ground of an indictment.2

Even the purchaser of land upon which is located a burialground may be enjoined from removing bodies therefrom, if he attempts to do so against the wishes of the relatives or next of kin of the deceased. Every interment is the concession of a privilege which cannot afterward be repudiated, and the purchaser's title to the ground is fettered with the right of burial.'

On the other hand, the right of the municipal or State authorities to remove dead bodies from cemeteries with the consent of the owner of the burial lot or in the execution of the right of eminent domain, is well settled.'

After the right of burial has once been exercised by the person charged with the duty of burial, or where such person has

mitted: "Earth to earth, ashes to ashes, dust to dust."

31st Pres. Ch. . 2d Pres. Ch., 2 Brewster, 372; and see also Pierce . Proprietors Swan Point Cem., supra.

Craig. e. 1st Pres. Ch., 88 Pa. St., 42; Charleston . Wentworth Cem., 4 Strob. (S. Car.), 306; Coates v. New York City, 7 Cow., 585; Hamilton . New Albany, 30 Ind., 482; Paige . Symonds, 63 N. H., 17.

consented to the burial by another person, no right to the corpse remains except to protect it from unlawful interference.'

On the other hand, where a husband did not freely consent to the burial of his wife in a lot owned by another person, it wa held that a court of equity might permit him, after such burial, to remove her body, coffin, and tombstones to his own lot, and restrain any person from interfering with such removal.'

In Rhodes v. Brandt, 21 Hun (N. Y.), 1, the defendant brought an action against one Beelard to recover for services rendered by him, as a physician, in treating a child of Beelard's for a fracture of the thigh-bone, in which action Beelard set up malpractice on the part of the defendant as a defence. During the pendency of the action the child died and was buried. Subsequently Beelard, the father, acting under the advice of his counsel, directed and allowed the plaintiff, a physician, to cause the body of the child to be exhumed, and a portion of the thighbone to be removed, in order that it might be used in evidence on the trial of the question of malpractice. After the bone was removed, the body was returned to the grave. The defendant thereupon caused the plaintiff to be arrested for unlawfully removing the body from the grave contrary to the provisions of the statute, and the plaintiff sued the defendant for malicious prosecution. The Court held that the plaintiff had not removed the body from the grave "for the purpose of sale or dissection or from mere wantonness," as these terms were used in the statute (3 R. S., 6th ed., 965), for violation of which he had been arrested, nor had he committed any offence against public decency or the spirit of the statute.3

Autopsies, by Whom Ordered; the Rights of Relatives and Accused Persons.- As shown in a previous article in this volume, on

1 Peters v. Peters, 43 N. J. Eq., 140; Lowry v. Plitt, 11 Phila., 303; Weld v. Walker, supra; in re Downs, 14 N. Y. St. Rep., 189; Morland v. Richardson, 22 Beav., 596; s. c., 24 id.. 33; Guthrie . Weaver, 1 Mo. App., 136: 4 Step. Com., 371; Reg. v. Theiss, 10 B. & S., 298.

2 Weld . Walker, supra; see also Johnson v. Marinus, supra.

3 See also Com. v. Slack, 19 Pick., 304; Palmer v. Broder, 78 Wis., 483; People v. Fitzgerald, 105 N. Y., 146; People v. Richards, 138 N. Y., 137.

In this last case it was held that a tomb, although constructed in the form of an elaborate mausoleum and built above the surface of the ground, was not a "building, erection or enclosure," within the meaning of the criminal statutes defining the crime of burglary in entering a "building, erection or enclosure"; and hence that entering such a tomb and taking therefrom a dead body with its grave-clothes and cerements would not amount to the crime of burglary.

the Powers and Duties of Coroners and Medical Examiners, in cases of sudden or suspicious death, it has been the law for nearly a thousand years that an inquisition or inquest super visum corporis must be held by an officer known as a coroner, and that this office and its powers and duties were inherited by this country as part of the English common-law system in force at the time of the formation of the republic of the United States. When a body has been buried, and the coroner believes that an inquest is necessary, he has power to disinter the body and hold an inquest, and he may direct a post-mortem examination to be made, but after having done so he must cause the body to be reinterred. It is now well settled that in holding such an inquest, and making such an autopsy or post-mortem examination required by his official duty, the coroner has authority to employ, and it is his duty to employ, professional skill and aid, and his contract will bind the county to pay a reasonable compensation for the same.1

As will be seen below from a synopsis of the statutes relating to this matter, many of the States have enacted statutes defining and prescribing the duties of the coroner and other public officers in such cases. At an early period in England (see 2 and 3 Will. IV., chap. 75, sec. 7) it was enacted by the English Parliament that any executor or other person having lawful possession of the body of a deceased person, and not being an undertaker or other party entrusted with the body for the purpose only of interment, might lawfully permit the body of such deceased person to undergo an anatomical examination, unless to the knowledge of such executor or other party such person should have expressed his desire during his life in writing, or verbally in the presence of two or more witnesses during his illness whereof he died, that his body after death might not undergo such examination, or unless the surviving husband or wife or known relative of the deceased shall require the body to be interred without such examination. By another section of this statute (sec. 10), professors of anatomy and other persons duly licensed were declared not liable to punishment for having in

1 County of Northampton v. Innes, 2 Carey (Pa.), 156; Com. v. Hannan, 4 Barr. (Pa.), 269; Alleg. Co. v. Watts, 3 Barr. (Pa.), 468; Van Hovenbergh v. Hasbrouck, 45 Barb.

(N. Y.), 197; Cosford v. Board Supervisors, 38 N. Y. St. Rep., 964; Co. of Alleg. v. Shaw, 34 Pa. St., 301; Board of Com. v. Jameson, 86 Ind., 154.