Kelly, C.B. made clear that all five judges were agreed, that former burial places which had "changed (in) character and been treated by the owner or occupier in all respects as private property", do not come within the controls of the Burial Acts, (p.74). Despite what must have been hundreds of burials, the judges even questioned whether the hospital burial place, "had ever possessed the character of a burial ground within the meaning of the (Burial) Act ... in question", (p.74). This legal precedent even questions whether such an active burial ground, comes within the controls of the Burial Acts. The judgement makes explicit, that the Burial Acts do not apply, if burials have ceased and the land has changed in character. In this case, burials had ceased only 10 years before the first Order in Council was issued but still all the judges were agreed that the Burial Acts did not apply. Bramwell, B. added that those Acts could only apply to places which remained active burial grounds. "I do not by this mean to say that (S.23 Burial Act 1857 Act) might not be applied to a burial ground where burials had ceased. It might and probably does, apply to ground dedicated to burials and where, though burials have (ceased), they might be resumed as of right". He added that the burial place would either need to be in active use or held in trust, in order that the graves be protected by that trust, (p.75). When Foster's QC was asked by Judge Byles if he believed a freeholder could dig up bodies in such circumstances, the QC answered, "That would be a nuisance at common law" (p.71). It would have been illogical and inconsistent to have retorted, that an exhumation licence would be necessary under S.25 Burial Act 1857. As mentioned above, Kelly, C.B. made clear that all five judges were agreed, that former burial places which had "changed (in) character and been treated by the owner or occupier in all respects as private property", do not come within the controls of the Burial Acts and that includes exhumation law under S.25 Burial Act 1857.

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