Act of Parlia ment. Old encroach ments to be undisturbed. AGREEMENTS the several proprietors of the said allótments shall be seised of or entitled to the same in like manner in all respects, and to, upon, and for the like uses, trusts, and purposes, and for the like estates and interests, as they respectively were seised of, or entitled to, in the land or hereditaments, in lieu or in respect of which such allotments were made. AND it is further agreed, that all persons having a right of common in or upon the said commons and waste lands, or any part thereof, who shall have exclusively enjoyed the same peaceably and without lawful molestation, (although acquired by unlawful inclosure or encroachments thereupon) for upwards of twenty years now last past, and without having paid any fine, rent, or amerciament to the lord of the said manor for the time being, shall be deemed to be the sole owner thereof, in like manner as if the same had never been part of the said common or waste lands. AND also a clause directing notice of appeals against the awards of commissioners, to be given to the parties interested therein, as well as to the said commissioners (10). And moreover, that the act shall contain all such other powers, provisions, declarations, and enactments, as shall be necessary or proper for carrying those provisoes and the intention of the parties into full effect and execution, according to the true intent and meaning thereof, save only such as are contained in or rendered unnecessary by a certain act passed in the 41 Geo. III. c. 109., intitled An Act for consolidating in one act certain provisions usually inserted in acts of inclosure, and for facilitating the mode of proving the several facts usually required on the passing of such acts (11), or other act in force for the time being. Names of com- AND it is hereby further agreed, that A. B. of &c. &c., shall be commissioners, and C. D. of &c. &c., if respectively then living, shall be surveyors under and be appointed by the said act. AND it is hereby agreed, that it shall by the said act be declared, that the commissioners under the said act shall execute two parts of their award or awards, one part whereof shall be lodged in the vestry room or church of the said parish, and the other in the Court of King's Bench at Westminster, [or with the clerk of the peace for the said county of ,] to be there preserved for the benefit of all missioners to be appointed. Counterpart of awards. (10) The general inclosure act, 41 Geo. III. c. 109, (see § 3) gives power of appeal on notice given to the commissioners alone, but it seems very proper that it should be given to the parties interested also; the omission should therefore be supplied in local acts; and see Rex. v. Just. Lanc., 1 Bar. and Al. 630. (11) See an abstract of this act, post Rider (A), p. 8. ment. parties and persons interested therein. AND it is hereby further AGREEMENTS agreed and declared by and between every of the said parties hereto Act of Parlia respectively, that they [nor any or either of them, (each agreeing and declaring as to himself only) shall not nor will oppose nor cause to Parties will furbe opposed, the passing of the said bill through either of the houses of ther the bill. parliament, or the king's assent being given thereto, or otherwise endeavour to prevent or impede the passing the same in any wise howsoever, but] that they and each of them respectively, shall and will, in due and proper time, sign the requisite petition for the said act, and do every other previous and subsequent act and thing which may be necessary on their respective parts, to procure the same to be passed into a law with all practical and proper expedition, under the penalty of default thereof, by way of ascertained and liquidated damages, of £ (12), to be payable and paid to the commissioners hereby named, or in the said act to be named, and applied for the purposes of the said act, or otherwise as the hereof. said commissioners shall direct. AND also that each and every of And pay their the said parties shall and will bear, pay, and discharge their due portion of costs and respective parts and proportions of the costs, charges, and expenses of these presents and of triplicates thereof, and of all costs, charges and expenses in any manner attending the soliciting, passing, and printing the said act, or otherwise relating thereto. AND it is hereby lastly agreed and declared, that of, &c. Solicitor named. shall be and is hereby appointed the solicitor for the purpose of obtaining the said act and carrying the same through the two houses of parliament, according to the usages thereof respectively; but removeable nevertheless at pleasure. IN WITNESS WHEREOF, &c. the parties hereto have [interchangeably (13)] set their hands and seals (14) on the day of the date hereof. (12) An agreement not to oppose an act of parliament has been held to be void, as against the good of the community, see 2 Mad. 356, but quære, whether this holds as to private acts? liquidated damages seem, however, to be proper, rather than a penal sum. (13) There should be as many parts of the agreement as there are parties possessing distinct interests, and each party should have a part of the agreement signed by the other of them; and the usual (and better) way of effecting this, is for all the parties to sign each part of the agreement, in which case the word "interchangeably" should be omitted. (14) As to an agreement being under the hands and seals or the hands only of the parties, see ante, Introduction, p. vi. § 8, 9. No. I. Rider A. *Abstract of the General Inclosure Acts, 41 Geo. III. c. 109., and 1 & 2 Geo. IV. c. 23. AGREEMENTS Act of Parlia ment. sure acts. ON account of the number of applications made to the legislature for acts of inclosure, it was deemed expedient that certain clauses usually contained in such acts should be comprised in one law, and certain regulations adopted for facilitating the mode of proving the several facts usually General inclo- required by parliament on the passing of such acts; for which purpose many provisions were made by 41 Geo. 3. c. 109. And as a knowledge of these cannot but be useful to the solicitor who may be concerned for parties intending to bring in a bill for inclosure, by making him previously acquainted with what will be requisite to insure success, I have thought it not amiss to insert, as an appendix to the preceding agreements, an abstract of that and a subsequent act relative to inclosure bills. By the first mentioned act it is enacted, 41 G. 3. c. 109. Oath of commissioners. Commissioner § 1. That all commissioners under such act shall take an oath (or affirmation, if Quakers), to act "faithfully, impartially, and honestly, to the best of their skill and ability," in discharge of the duties imposed upon them. § 2. That no commissioner shall become a purchaser of any lands to be not to purchase. inclosed within the parish, until five years after the execution of the award of the commissioners. Commissioners to give notice of bounds. Plans, &c. to be made and kept by the commissioners. Boundaries. Notice. §3. That the commissioners shall deliver a description of the boundaries of the lands to one of the churchwardens or overseers of the poor of the parish, and the lord of the manor (1).' § 4. That a survey, &c. of the lands to be inclosed, shall be made and kept by the commissioners, which shall be verified by the persons making the same, and which may be inspected, and copies taken by the proprietors ; and if parties are dissatisfied, they may appeal, on giving previous notice to the commissioners (2). (1) The determination of the commissioners as to boundaries is not retrospective, so as to preclude evidence being adduced of the boundary line before the inclosure, or to affect a precedent devise. Rex v. St. Mary's, 4 Barn. & Ald. 462. (2) The framers of the act appear to have overlooked the propriety of notice being given to the parties interested, which should therefore be inserted in local acts. And see Rex v. Just. Lanc. 1 Barn. & Ald. 630. § 5. That commissioners may enter to make surveys, &c.; and maps, &C. AGREEMENTS made by the parties themselves, may be allowed by the commissioners, if approved. Act of Parlia ment. § 6. That claimants of lands to be inclosed, deliver in particulars of their claims (3), distinguishing such as may relate to freeholds, copyholds, Allowance of and leaseholds. No exceptions to claims to be made after meeting appointed for that purpose, without special cause. § 7. That commissioners shall not determine upon title to lands, but shall assign, &c. according to seisin or possession. plans. Claims of parties. Commissioners not to determine Public roads. § 8. That the commissioners shall lay out or vary public roads, (except upon title. turnpike roads, see § 11.) and carriage ways, as they shall think expedient, subject to appeal to the quarter sessions. § 9. That the roads shall be properly fenced (4), and commissioners Fences. may appoint surveyors with adequate salaries. § 10. That the commissioners shall lay out new private roads, ways, &c.; Private ways. and former roads to be inclosed and extinguished (5). § 11. That the herbage on such roads shall belong to the proprietors of Herbage. adjoining lands (6); but no turnpike roads to be altered without the con sent of the trustees. § 12. That the commissioners shall, in their allotments, have regard to Locality, &c. locality, as to situation of houses, and convenience of neighbourhood, and to the quantity and quality of land. § 13. That the commissioners may direct small allotments to be ring Ring fences. fenced, &c. § 14. That the allotments to proprietors, &c. shall be a full compen- Allotment to be sation for all incidental rights, &c., which shall cease on notice being final. fixed upon the church door. § 15. That commissioners may exchange allotments, with consent of the Exchange. parties interested. § 16. That the commissioners may make allotments in severalty to Joint tenants, joint tenants, &c. &c. § 17. That the parties to whom allotments have been made, shall accept Time of acceptthem within a given time. ation. § 18. Relates to the acceptance of allotments by guardians and tenants Life interest,&c for life. (3) The form of a claim under this section will be found, post, verb. "CLAIM;"" the Form of claims. drawing of such claim requiring a very considerable portion of technical accuracy." 1 Evans Stat. 294. n. (1) 2d Edition. (4) It has been doubted whether a ditch is to be considered as a sufficient fence under this Ditch. clause, but at length held that it might be considered to be so in legal construction, if so found by a jury. See Ellis v. Arnison, 1 Barn. and Cress. 70. 2 Dowl. and Ryl. 161. (5) On the construction of this section of the act, see White v. Reeves, 2 Moore, 23., and Simpson v. Scales, 2 Bos. and Pul. 496. (6) The persons taking under this clause, do not take by way of grant, but of parliamentary declaration, designating the persons who are to take and enjoy the herbage. Johnson v. Hodgson, 8 East. 38. AGREEMENTS Act of Parlia ment. Inclosure before award. Trees, &c. Settled pre- Expenses of. Ibid. Expenses of inclosing. Tenants for life, &c. Expenses of charity lands. Sale to pay expenses. Witnesses. Award. Receipts and payments. Leases by rector. Penalties and savings. § 19. That allotments may be enclosed, with assent of commissioners, before the award shall be made. § 20. That trees, &c. may be allotted to the land, on the value being paid to the former owner. § 21, 22, 23. Contain directions as to money to be laid out in purchase of lands, &c. under settlement. § 24. That if parties do not inclose according to direction of the commissioners, the commissioners may do so, and receive the rents and proceeds, till repaid the expenses (7). § 25. Dead fences to the allotments may be put up within seven years, to protect quicks, &c. § 26, 27, 28. Further enactments as to the preservation of fences, &c. (8). § 29. That if proprietors do not pay their proportion of the expenses, the commissioners may levy the same by distress, or receipt of profits (9). § 30. That tenants for life, or guardians, may charge expenses on allotments not exceeding 51. per annum ; and mortgages may be made by commissioners for reimbursement to parties in possession advancing same. § 31. That the commissioners may deduct from allotment of charity or school lands a rateable proportion of the expenses. § 32. That where a sale is to be made of part of the land for payment of the expenses, the commissioners shall set out and sell the same, and a deposit to be made by purchasers. § 33, 34. That the commissioners may summon witnesses to procure evidence from a distance not exceeding eight miles. § 35. That the commissioners, after completing the allotments, shall make their award, which shall be executed at a meeting of proprietors, and proclaimed in the parish church on the following Sunday, and enrolled at Westminster, or with the clerk of the peace, where it may be inspected, and copies taken; and award and copies signed by the proper officer to be evidence (10). 36, 37. That the commissioners shall keep an account of all monies received, and paid by them; and monies raised shall be disposed of by the commissioners as a major part in value of the proprietors shall direct. § 38. That the rector, &c. may lease allotments for twenty-one years, with consent of bishop, &c. § 39, 40, 41, 42, 43. Regard the recovery of penalties; Saving of rights of the lords of manors (11); General saving; authority for justices to administer oath. False swearing to be perjury. (7) See post, n. (9). (8) On these clauses, see ante, p. 9. n. (4). (5). (9) All the commissioners must, it seems, concur in the assessment of expenses; if, therefore, one of them die, another must be appointed before the assessment can be made. See Doe dem. Nicholson v. Middleton, 3 Brod. and Bing. 214. 6 Moore, 532, S. C. (10) The award of the commissioners under this act is final, but by the subsequent act of 1 & 2 G. 4. c. 43. § 3. (see post, p. 11) it may be appealed against. |