transfer their conterminous with the district of an urban authority, the in certain Burial Board may, by resolution of the vestry, and by cases to agreement of the Burial Board and urban authority, powers to transfer to the urban authority all their estate, property, Local Board. rights, powers, duties, and liabilities, and from and after 38 & 39 Vict. such transfer the urban authority shall have all such estate, property, rights, powers, duties, and liabilities as if they had been appointed a Burial Board under the Burial Acts for the time being in force. c. 55, sch. 5, part iii. Board in When a vestry of any parish comprised in a local Local Board government district resolves to appoint a Burial Board, to be Burial the Local Board may, at the option of the vestry, be the certain cases. Burial Board for such parish, and all expenses incurred Ib. by such Burial Board shall be defrayed out of a rate to be levied in such parish in the same manner as a general district rate. Provided, that if such parish has been declared a ward for the election of members of the Local Board, such members shall form the Burial Board for the parish, and shall be deemed to be a Burial Board elected under the Burial Acts for the time being in force. rate rate. Further provision is made by the 23 & 24 Vict. c. 64, re- Expenses of citing the 20 & 21 Vict. c. 81, s. 4, and the 21 & 22 Vict. c. Local Board 98, s. 49 (which is re-enacted by the Public Health Act, out of general may be paid 1875, see Sch. V., ante, p. 343), and that it is expedient district rate, that the Local Boards and Commissioners respectively, or by a sepawhen constituted Burial Boards, should be authorized to 23 & 24 Vict. provide for their expenses, it enacts that any money re- c. 64, s. 1. quired by any Local Board constituted a Burial Board for defraying the expense of carrying into execution the powers and provisions of the Burial Acts, and of the 23 & 24 Vict. c. 64, in the district for which they may have been so constituted a Burial Board, or for paying any moneys borrowed or annuities granted under the authority of those Acts, or any interest on moneys borrowed, or for providing a sinking fund for the repayment of such moneys, may, if the Local Board so think fit, be paid out of the general district rates leviable within the district. The Local Board may levy as part of the general district rate, or by a separate rate, under the name and designation of a burial rate, to be assessed and recovered in like manner as a general district rate within the district for which they act as a Burial Board, such sums of money as shall be from time to time necessary for those purposes, or any of them. Any money required by any such Commissioners as be- Expenses of fore mentioned, who shall have been constituted a Burial ImproveBoard, for defraying the expense of carrying into execu- missioners ment Com may be paid out of improvement rate, or by a 23 & 24 Vict. c. 64, s. 2. tion the powers and provisions of the Burial Acts in the district for which they may have been so constituted a Burial Board, or for paying any moneys borrowed, or separate rate. annuities granted under the authority of the Burial Acts, or any interest on moneys borrowed, or for providing a sinking fund for the repayment of such moneys, may, if the Commissioners so think fit, be paid out of the improvement rate leviable within such district. The Commissioners, as such Burial Board, may levy as part of the improvement rate, or by a separate rate under the name and designation of a burial rate, to be assessed and recovered in like manner as an improvement rate, such sums of money as shall be from time to time necessary for these purposes or any of them. Borrowing Accounts. Audit. Ib. Closing burialgrounds. Interments within The Public Works Loan Commissioners may lend money for the purposes of burial grounds, under the Public Works Loans Act, see Sch. I. to that Act, post, p. 533. The Local Board and the Commissioners respectively, who may have been constituted a Burial Board, shall keep distinct accounts of their receipts and expenditure in the exercise of their functions as such Burial Board. Where their expenses are defrayed by moneys raised under the provisions of the 23 & 24 Vict. c. 64, such accounts shall be audited in the same manner as other accounts of the receipts and expenditure of such Local Board and Commissioners respectively; and any surplus of the moneys raised by any rate made under that Act, and of the income of any burial-ground provided by means of moneys raised or paid under its provisions, which may remain after payment of the expenses and moneys which should be defrayed or paid under the Burial Acts, shall be applied in aid of the general district rate or improvement rate, as the case may be, levied within the district, which shall have been or might have been charged with a separate rate. With respect to the closing of existing burial-grounds, and the providing of new burial-grounds, the Burial Board of the district should proceed in the manner directed by the Burial Acts before referred to; but it is necessary to notice in this place some further provisions regarding the burial of the dead which are contained in the Public Health Act, 1848. It should be observed, however, that the following references to the General Board of Health must be read in connection with the provision in the 8th section of the Local Government Act, 1858, as to the exercise of their powers by Local Boards, without the sanction, consent, direction, or approval of that Board. No vault or grave is to be constructed or made within grounds the walls of or underneath any church or other place of churches public worship built in any urban district after the 31st or burialAugust, 1848. Whosoever shall bury, or cause, permit, newly erected or suffer to be buried, any corpse or coffin in any vault, or formed. grave, or burial-ground constructed, made, or formed contrary to this statute, shall, for every such offence be liable 38 & 39 Vict. to a penalty not exceeding £50, which may be recovered c. 55, sch. 5, by any person, with full costs of suit in an action of debt. part iii. 11 & 12 Vict. c. 63, s. 83. Common The common law casts upon the person under whose law liability roof a death takes place the duty of providing sepulture to bury. for the body, and of carrying it to the grave decently covered; for such person cannot keep the body unburied, neither can he do anything to prevent Christian burial,— he cannot cast out the body to do violence to the feelings and health of the living, neither can he be permitted to carry it uncovered to the grave. This duty of providing burial for the dead extends not only to private persons, but to public bodies also; and therefore when the death takes place in a hospital for the cure of diseases, or other public establishment, the obligation of burying the body is imposed upon the governing body of the hospital or establishment. (1) According to this rule, therefore, if after a dead body has been received into the house provided by the Local Board for the reception of the dead the relations or friends do not make provision for the burial, the Local Board would apparently be bound to do so, though perhaps the case might be provided for by any bye-laws made under 38 & 39 Vict. c. 55, s. 141, ante, p. 108. Nevertheless in such a case application may be made to the Burial by Board of Guardians of the union in which the reception guardians house is situated to provide for the burial of the body at the cost of the poor rates, which they are empowered to do by the 7 & 8 Vict. c. 101, s. 31. That enactment, however, is only permissive; and the guardians may therefore exercise a discretion as to whether or not they will undertake to provide for the burial. The 18 & 19 Vict. c. 79, s. 2, enables boards of guardians of unions or the overseers, where there are no guardians, to enter into agreements with burial boards for the burial of the dead bodies of any poor persons which such guardians or overseers may undertake to bury; and a like power is given to visitors of lunatic asylums by the 18 & 19 Vict. c. 105, s. 12, for the burial of the dead bodies of pauper lunatics dying in asylums which they may undertake to bury. Local Boards of Health have special duties cast upon (1) Reg v. Stewart, 12 A. & E. 773; 10 L. J. M. C. 40. of the poor. Closed burial- decent order and repair. 18 & 19 Vict. them, when constituted Burial Boards, in respect of the repair and keeping in order closed burial-grounds; but c. 128, s. 18. previous to referring to those special duties, it is necessary to advert to the provisions in the 18 & 19 Vict. c. 128, s. 18, on the same subject. It is thereby enacted, that in every case in which any Order in Council has been or shail hereafter be issued for the discontinuance of burials in any churchyard or burial-ground, the Burial Board or churchwardens, as the case may be, shall maintain such churchyard or burial-ground of any parish in decent order, and also do the necessary repair of the walls and other fences thereof. The costs and expenses so incurred shall be repaid by the overseers upon the certificate of the Burial Board or churchwardens, as the case may be, out of the rate made for the relief of the poor of the parish or place in which such churchyard or burial-ground is situate, unless there shall be some other fund legally chargeable with such costs and expenses. Closed burial-. grounds. Ib. The above provision applies only to cases in which the churchyard or burial-ground has been closed by an Order in Council; and it is only the burial-ground of or belonging to a parish that comes within the provision, and in regard to which the Burial Board can interfere. (1) The provision is not applicable to a churchyard closed by Act of Parliament, and though it applies to the churchyard, it does not apply to the vaults which are inside a church. The subsequent Acts, 20 & 21 Vict. c. 81, s. 23, and 22 Vict. c. 1, however, make provision for the case of vaults in churches. The churchwardens or Burial Board, as the case may be, are to maintain the churchyard or burial-ground in decent order, and to do the necessary repair of the walls and other fences, but they cannot interfere with the gravestones or tombs, unless they be in such a state that the ground cannot otherwise be put in decent order. The repairs must be substantial repairs, and not merely repairs undertaken for ornamental purposes; though it seems that they may extend to the taking down of a ruinous wall, and supplying its place with an iron railing. All that is done for the sole purpose of rendering the churchyard reasonably fit and proper for its uses by the rector or vicar, and the inhabitants, will come under the definition of "necessary repair." Where it is an ancient churchyard of a parish that has been closed, the churchwardens will be the proper autho (1) Reg. v. St. John Westgate and Elswick, 5 L. T. (N.s.) 436 · 31 L. J. M. C. 15. rity to keep it in decent order, and the walls and fences in Closed burialrepair; but a closed burial-ground of or belonging to the grounds. parish will be kept in order, and the walls and fences in c. 128, s. 18. repair, by the Burial Board. An eminent counsel has, however, advised that the correct construction of the various sections of this Act is, that the appointment of a Burial Board supersedes the churchwardens, and that the duties imposed on the latter with reference to churchyards or burial-grounds would be transferred to the former. On the other hand, it is understood that the law officers of the Crown, in a case submitted to them, have advised in accordance with the opinion expressed by the author on this point in the former editions of this work. The provision in 18 & 19 Vict. c. 128, s. 18, is not applicable to the case of a churchyard closed by Act of Parliament, neither does it apply to the repair of vaults which are inside of the church, nor, as already stated, to burial-grounds which do not belong to the parish, such as burial-grounds attached to dissenting places of worship, or a proprietary burial-ground. As regards vaults, see the 20 & 21 Vict. c. 81, s. 23, and 22 Vict. c. 1, s. 1. The ground after it is closed for the purposes of burial cannot be applied to any secular purpose without a faculty, and no faculty could be obtained giving authority for its being so applied. It is not in the power of any Ecclesiastical Court whatever to allow any portion of consecrated ground to be devoted to secular uses, or to grant a faculty to confirm such an appropriation. Where a person has been proved to have interfered illegally with the soil of the churchyard or with erections upon it, it has invariably formed part of the judgment of the Court that he should restore to its former state what he has so interfered with. (1) These observations must, however, be taken to apply to purposes which are purely secular; for it has been held that a faculty of license may be granted for the erection of a school-house on a portion of consecrated ground in which no interments have taken place, and in which burials have been prohibited by an Order in Council, issued under the authority of the 15 & 16 Vict. c. 85, s. 2. (2) The cost of the repairs is to be repaid out of the poor rates of the "parish or place;" but it is apprehended that it was not the intention of the Legislature to cast the expense upon a single township where the churchyard (1) Harper v. Forbes and Sisson, 5 Jur. (N.s.) 275. (2) Russell v. St. Botolph, Bishopsgate, 5 Jur. (N.s.) 300. 18 & 19 Vict. |