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 newspapers 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 80 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 twenty pounds.

ments within

LXXXIII. And be it enacted (f), that no vault or grave shall be As to interconstructed or made within the walls of or underneath any church or churches other place of public worship, built in any district after the passing of or burial this Act, and no burial ground shall be made or formed within any newly grounds district after the passing of this Act, without the consent of the general erected or formed. board of health first had and obtained (g), unless the same be made or formed upon land purchased or authorized by parliament to he 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 (h), with full costs of suit, in an action of debt (i).

(f) This clause conferred no power upon the local board, and is now superseded by other enactments.

(g) This consent was confined to the burial ground, and not to the interment in churches, and is of course now unattainable.

(h) See however the restriction contained in sect. 133, post.

(i) See in 21 & 22 Vict. c. 98, the additional powers conferred upon Provision of the local board. The 29 & 30 Vict. c. 90, s. 37, and the 30 & 31 Vict hospitals. c. 113, s. 16, enable the local board to provide for the inhabitants within its district hospitals or temporary places for the reception of the sick as well as medicines and medical attendance. See in the Appendix, post.

Powers to

local boards to purchase lands, &c., under

8 & 9 Vict. c. 18.

PURCHASE OF LANDS.

LXXXIV. And be it enacted, (e), that the local board of health, by agreement, may purchase, or take upon lease, sell, or exchange, any lands or premises for the purposes of this Act [(f) and the Lands Clauses Consolidation Act, 1845, except the parts and enactments of that Act with respect to 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 (g).

(e) See note (i), p. 143.

(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," and as the effect of the section was to confer upon the local board only power to purchase, hire, or exchange land by agreement, and the subsequent Act conferred compulsory powers upon the board, the 29 & 30 Vict. c. 90, s. 47, enacts that the section in the text shall be construed as if the words by agreement therein used had been expressly repealed by 21 & 22 Vict. c. 98, s. 75.

(g) 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.

See the provision in the 29 & 30 Vict. c. 90, s. 46, ante, in note on s. 35, whereby all local boards are incorporated for certain purposes.

CONTRACTS OF THE LOCAL BOARD.

Contracts

by local

LXXXV. And be it enacted, that the local board of health may enter into all such contracts as may be necessary for board. carrying this Act into execution;

And every such contract whereof the value or amount shall exceed ten pounds shall (h) be in 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 dis

The board must be careful not to apply the land so purchased to any other purpose than that for which it was acquired, except with due licence properly obtained. Where a corporation under a local Act ohtained a piece of land for the purpose of public recreation, they were restrained by injunction from holding a fair and exhibition of cattle upon it. Att.-General v. The Corporation of Southampton, 2 Giff. 263; 6 Jur. (N. s.) 36; 39 L.. J. Ch. 282.

It will be observed that the provisions in the Lands Clauses Act relating to lands not wanted for the purposes of the undertaking are not incorporated by the text. Hence the local board, who by the first part of the clause are empowered to sell, could sell any part of the land which they acquired as they might deem most expedient. See where no express power is given, Tepper, appt., Nichols, resp, 18 C. B. (N. s.) 140. But as the passage in the text., printed in italics, was repealed by the 21 & 22 Vict. c. 98, s. 75, and the whole of the Lands Clauses Act was thereby incorporated, it may be considered that those provisions are now applicable, and impose some restriction upon the local board, though there is some difficulty in applying them to the circumstances of the local board's property.

(h) Note the use of this word. It has been considered by many per- Conditions sons that the provisions of this clause were directory only. But the Court of the conof Common Pleas have lately decided the contrary, so far as relates to tracts. 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 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;

4 C. B. (N. 8.) 576; 27 L. J. C. P. 314; 5 L. T. 73. And the Court of Chancery afterwards decided that no relief in equity could be given to the contractor. Frend v. Dennett, 5 L. T. (N. s.) 73.

H

Composition

for penalties

breach of

contracts.

trict) sealed with the common seal, and shall (z) 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 compound in respect of with any contractor or other person in respect of any penalty incurred by reason of the non-performance of any contract entered into as aforesaid, whether such penalty be mentioned in any such contract, or in any bond or otherwise, for such sums of money or other recompence as to such local board may seem proper:

Estimates to be made.

Provided also, that before (a) contracting for the execution

This decision is in conformity with Homersham v. Wolverhampton 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; Routledge v. Farnham Local Board, 2 F. & F. 406; 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; Nicholson v. Bradfield Union, 35 L. J., Q. B. 176; 7 B. & S. 774, and the later cases on the subject of the execution of contracts by corporate bodies. A contract between a local board and the plaintiffs, for levelling, paving, &c. certain streets, provided that the plaintiffs should be paid when the money was collected from the adjacent owners. It turned out that the money could not be obtained from these owners on the ground that the notices given to them by the board were bad. Held, that whether the collection of the moneys was a condition precedent to the right to sue for the price of the work or not, there was an implied contract on the part of the board to take all necessary steps for collecting the money, and that they were therefore liable to the plaintiffs for their charges. Worthington v. Sudlow, 2 B. & S. 509.

(2) The principle of the above decision of Frend v. Dennett 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.

(a) This proviso, however, is only directory, and the obtaining the estimate and report from the surveyor is not a condition precedent to

mencing

of any works under the provisions of this Act the said local before com. board shall obtain from the surveyor an estimate in writing, works. as well of the probable expense of executing the work in a substantial manner as of the annual expense of repairing the

same;

Also a report as to the most advantageous mode of contracting, that is to say, whether by contracting only for the execution of the work, or for executing and also maintaining the same in repair during a term of years or otherwise (b):

trac's above

Provided also (c), that before any contract of the value or As to conamount of one hundred pounds or upwards is entered into by the value of the said local board ten days public notice at the least shall 100%. be given expressing the nature and purpose thereof, and inviting tenders for the execution of the same;

And the said local board shall require and take sufficient security for the due performance of the same.

the entering into the contract. Therefore the local board will be liable for a breach of the contract entered into for the performance of works though the estimate and report were not obtained. Howell v. Mayor, &c. of Worcester, 9 Exc. 457.

(b) Upon this proviso the Court of Queen's Bench decided, as between the board of health and their constituents, that "If the work may be both executed and repaired under the provisions of the Act there must be an estimate and report on the execution and the repair; but if the work may be only executed or only repaired according to the provisions of the Act, the estimate and report need not extend to a work not within the provisions of the Act, and not necessary for carrying it into execution. In case of a contract for repairing an existing road, an estimate and report relating to executing the work of making that road originally would be absurd, and equally so would be the estimate and report on repair where none can be done." Cunningham v. Local Board of Wolverhampton, 7 E. & B. 114.

(c) Whether this proviso is directory only admits of some question. Effect of the See Frend v. Dennett, ubi supra. This appears to be the distinction proviso. to be drawn from the cases as to the different parts of the clause. Some of the requisites specify the form, manner, and contents of the contract itself. Both parties can and ought to be cognizant thereof, and consequently each must sustain the result of a failure to comply therewith. The other requisites affect only one of the parties, and consequently the neglect or failure thereof will not prejudice the other party in respect of his claim arising out of the engagement entered into under this clause.

In reference to the proper construction and effect of a contract for