Act of Parlia ment. Then to the respect of their commonable rights. AGREEMENTS and in recompense for his glebe lands belonging to him in the said parish as rector aforesaid, and of his rights of common in respect thereof. AND that from and after the several allotments shall be so made by the commissioners to the said (lord) and parishioners in (rector) respectively, then and thereafter all and every the residue or remaining parts of the said common and waste lands, shall be allotted by the said commissioners to the said (tenants), parties hereto, and the several other freeholders, and copyholders, and others, within the said parish, in proportion to the value of their several and respective lands, and estates and interests therein (4), due regard being had as well to the quality and contiguity of situation of the lands, wherein such their estates and interests subsist, as to the quantity of the same respectively: and also in proportion to and in respect of their several and respective commonable rights and interests in and upon the same commons and waste lands. AND it is further agreed, that the said act shall provide that the said (rector) and his successors [or impropriator and his heirs] shall be entitled to and have the like tithes out of and upon the said common fields so to be inclosed, and the said allotments in right of common, as he is now entitled to out of and upon other the lands and hereditaments General powers within the said parish. AND it is hereby further agreed, that for Rector or improprietor to have tithes. of commis sioners. To determine disputes. the better carrying the said intended act and the purposes thereof (6) After the allotments to the lord and the rector, the residue of the waste is divided amongst such of the tenants or proprietors as possess rights of common appendent or appurtinent to their messuages, &c., and if two rights of common in the wastes of two manors appertain to the same tenant, the proprietor will have a right to an allotment on the inclosure of each waste; Hollinshead v. Walton, 7 East. 485, and see Barwick v. Matthews, 1 Marsh. 50. 5 Taunt. 365. Expenses of the proving the same. AND it is further agreed, that the expense to AGREEMENTS be incurred in obtaining the said act, as also subsequent expenses Act of Parlia occasioned in carrying the same into execution shall be sustained ment. and paid by the said (lord and tenants) and other the several freeholders, and copyholders, and persons interested in the said com- act. mons and waste lands, in proportion to the value of the allotments which shall have been made to them respectively, to be ascertained by the said commissioners. AND it is further agreed, that all persons who Tenants for life shall be tenants for life only of the said inclosed commons or waste, may mortgage. or of lands, or hereditaments, allotted in respect thereof, shall, by the said act, be authorized and empowered, under the direction of the said commissioners, to convey their respective allotments by way of mortgage for any term or number of years, for raising so much money as may be requisite to defray their respective shares, and portions of the expenses which shall be incurred in the executing the said act; so nevertheless, that the money so to be raised do not exceed shillings per acre on their respective allotments, and that the same be payable and paid to the said commissioners, or as they shall direct, for the purposes of the said act. AND it is All proper further agreed, that in the said act there shall be inserted all such clauses to be inusual and other proper clauses and provisions for carrying these presents and the said act into execution, according to the intent and meaning of the parties hereto (7); provided only, that nothing herein or in the said act to be contained, shall prejudice or be construed to prejudice the right of the said (lord) in or to the seignory, royalties, fisheries, customs, services, or other his manorial rights, within the said parish, save only as to his rights of common and of soil therein. And further that there shall be a clause in the said act saving to the lord of the said manor, all such manorial and other rights save as aforesaid (8). AND it is hereby further agreed, that the Allotments to said act shall provide and declare that all allotments to be made in be of former lieu or in respect of the said commons and waste lands shall be deemed to be of the same tenure (9) and subject to the same incidents, and that serted. tenure, &c. (7) See the usual clauses in acts for enclosures, post, Rider A. p. 8. (8) Great care is to be taken, in framing this saving clause, in order to reserve every thing in particular intended to be saved; see the form of an INCLOSURE ACT, post, "PARLIAMENTARY PROCEEDINGS;" and see Townley v. Gibson, 2 Durnf. and East. 701. (9) Wastes which are inclosed, although of a copyhold manor, will by the inclosure become freehold, unless it be otherwise declared. See Revell v. Joddrell, 2 Durnf, and E. 415. Townley v. Gibson, Ib. 701. Doe dem. Lowes v. Davidson, 2 Maul. and Selw. 176. Act of Parliament. Old encroach ments to be undisturbed. 6 AGREEMENTS the several proprietors of the said allotments 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, whall 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. i Act of Parlia ment. Parties will fur parties and persons interested therein. AND it is hereby further AGREEMENTS agreed and declared by and between every of the said parties hereto 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 be 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 said commissioners shall direct. AND also that each and every of the said parties shall and will bear, pay, and discharge their due 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 And pay their portion of costs hereof. 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. |