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Houses for Reception of the Dead. LXXXI. And "for the purpose of preventing power to
provide prethe manifold evils occasioned by the retention of mises for the
reception of the dead in the dwellings of the poor," be it the dead enacted, that the local board of health may, if they interment.
previously to sball think fit, provide, fit up, and make byelaws (e) with respect to the management and charges for the use of rooms or premises in which corpses may be received and decently and carefully kept previously to interment;
And the said local board may, upon proper application, and subject to such regulations and at such rates and charges as shall be prescribed by any such byelams, make all necessary arrangements for the decent and economical interment of any corpse which may have been received into any rooms or premises so provided in pursuance of this enactment.
Burial Grounds. LXXXII. And be it enacted (f), that if upon Burial the representation of the local board of health,
grounds, &c. and
is sect. 129, which, however, is not aptly framed to meet the case of proceedings against the local board.
() As to the making of byelaws, see sect. 115, post. See the provision as to the provision of such receptacles by burial boards in 15 & 16 Vict. c. 85, s. 42, incorporated in 16 & 17 Vict. c. 134.
U) It will be proper to refer to the provisions contained in the several statutes lately passed which regulate interments: 15 & 16 Vict. c. 85, 16 & 17 Vict. c. 134, 17 & 18 Vict. c. 87, 18 & 19 Vict. c. 128, and 20 & 21 Vict. c. 81, and the commentaries by Mr. Scott and Mr. Glen thereon.
This clause is practically determined for the future. But see the provision contained in 21 & 22 Vict. c. 98, s. 49, post, whereby the local board of health may become a burial board.
It will be seen that the clause gives no power to the local board to act in the matter beyond making a representation to the general board of health.
after inquiry and report by a superintending inspector, notified to the lord bishop of the diocese, and made, notified, and published in manner hereinbefore directed with respect to the inquiry and report of superintending inspectors previously to the constitution of a district under this Act, and after inquiry by such other ways and means as the general board of health may think fit to direct, the said general board shall certify (such certificate to be published in the London Gazette, and in some one or more of the public nen-spapers usually circulated within the district,) that any burial ground situate within any district to which this Act is applied is in such a state as to be dangerous to the health of persons living in the neighbourhood thereof, or that any church or other place of public worship within any such district is dangerous to the health of persons frequenting the same, by reason of the surcharged state of the vaults or graves within the walls of or underneath the same, and that sufficient means of interment exist within a convenient distance from such burial ground, church, or place of
, public worship, it shall not be lawful, after a time to be named in such certificate, to bury or permit or suffer to be buried any further corpses or coffins in, within, or under the ground, church, or place of worship to which such certificate relates, except in so far as may be allowed by such certificate;
And whosoever, after notice of such certificate, buries, or causes, permits, or suffers to be buried, any corpse or coffin contrary to this enactment, shall for every such offence be liable to a penalty of tnenty pounds (a).
(a) See, as to the recovery of this penalty, sect. 129, post.
As to interments within
LXXXIII. And be it enacted (6), that no vault grave shall be constructed or made within the walls churches of or underneath any church or other place of public grounds worship, built in any district after the passing of or formed. this Act, and no burial ground shall be made or formed within any district after the passing of this Act, without the consent of the general board of health first had and obtained (c), unless the same be made or formed upon land purchased or authorized by parliament to be appropriated for the purpose of being used as a burial ground before the passing of this Act;
And whosoever shall bury, or cause, permit, or suffer to be buried, any corpse or coffin in any vault, grave, or burial ground constructed, made, or formed contrary to this enactment, shall for every such offence be liable to a penalty not exceeding fifty pounds, which may be recovered by any person (d), with full costs of suit, in an action of debt (e).
PURCHASE OF LANDS. LXXXIV. And be it enacted (e), that the local powers to board of health, by agreement, may purchase, or to purchase take upon lease, sell, or exchange, any lands or under premises for the purposes of this Act [(f) and the 8 & 9 Vict. Lands Clauses Consolidation Act, 1845, except the parts and enactments of that Act with respect to
(6) This clause conferred no power upon the local board, and is now superseded by other enactments.
(c) This consent was confined to the burial ground, and not to the interment in churches, and is of course now unattainable.
(d) See however the restriction contained in sect. 133, post.
e) See in 21 & 22 Vict. c. 98, the additional powers conferred upon the local board.
(f) The following passage in Italics is repealed by 21 & 22 Vict. c. 98, s. 75, which makes other provisions for the incorporation of “ The Lands Clauses Consolidation Act, 1845."
the purchase and taking of lands otherwise than by agreement, and with respect to the recovery of forfeitures, penalties, and costs, and with respect to lands acquired by the promoters of the undertaking, but which shall not be wanted for the purposes thereof, shall, in so far as the same is consistent with this Act, be incorporated with this Act; and for the purposes of this Act, the expression “ the promoters of the undertaking,” wherever used in the said Lands Clauses Consolidation Act, shall mean the local board of health mentioned in this Act ;]
And all lands and premises which shall be purchased, hired, or taken on lease by the local board of health of any non-corporate district shall be conveyed, demised, and assured to such local board and their successors, in trust for the purposes of this Act, and shall be accepted, taken, and held by them as a body corporate (f).
CONTRACTS OF THE LOCAL BOARD.
Contracts by LXXXV. And be it enacted, that the local board local board.
of health may enter into all such contracts as may be necessary for carrying this Act into execution;
And every such contract whereof the value or amount shall exceed ten pounds shall (9) be in
(f) It may here be observed that no clause confers upon the local board of a non-corporate district the entire powers of a corporation. Moreover the above clause does not, as is usual, give any name which is to be used by the local board, and though sect. 35 requires them to cause a seal to be made for their use, it is not declared to be a common seal.
(9) Note the use of this word. It has been considered by many persons that the provisions of this clause were directory only. But the Court of Common Pleas have lately decided the contrary, so far as relates to the first requisites of the statute, and have held that they are imperative, so that a contract not entered into conformably with the requisites of this clause is invalid. The case before the court was one in which the board of a non-corporate district engaged with a
writing, and in the case of a non-corporate district) sealed with the seal of the local board, by whom the same is entered into, and signed by five or more members thereof, and (in the case of a corporate district) sealed with the common seal, and shall (h) specify the work, materials, matters, or things to be furnished, had, or done, the price to be paid, and the time or times within which the contract is to be performed, and shall fix and specify some pecuniary penalty to be paid in case the terms of the contract are not duly performed;
And every contract so entered into, and duly executed by the other parties thereto, shall be binding on the local board by whom the same is executed, and their successors, and upon all other parties thereto, and their executors, administrators, successors, or assigns, to all intents and purposes :
Provided always, that the said local board may Composition compound with any contractor or other person in torpepeltics
builder to perform certain works at a sewer, but there was no contract under seal. The works were executed, but the board, when sued, pleaded that there was no contract under seal, and this was held to be a valid defence. The court proceeded upon the ground that the local board must charge the rates with the costs of this contract, and that they could not do so unless they fulfilled the exigency of the statute by entering into the contract in strict conformity with its requisitions. Frend v. Dennett, 4 Jur. (N. S.), 897.
This decision is in conformity with Homersham v. Wolver. hampton Waterworks Company, 6 Exc. 137; Lamprell v. The Guardians of Billericay Union, 18 L. J. R., Exc. 282; 3 Exc. R. 283; and Kirk v. The Bromley Union, 12 Jur. 85, 2 Phill. 640, but not quite reconcilable with Saunders v. St. Neots Union, 10 Jur. 566; 8 Q. B. 810; and Clark v. Cuckfield Union, 16 Jur. 686; 21 L. J. R., Q. B. 349, and the later cases on the subject of the execution of contracts by corporate bodies.
(h) The principle of the above decision applies to the specification of these several matters. With reference to the question as to the nature of the contract itself, see the note on sect, 98, post.