No. VII. c. 109. XII. And be it further enacted, That such commissioner or commissioners in making the several allotments directed by any such Act, shall have due regard as well to the situation of the respective houses 41 Geo. III. or homesteads of the proprietors as to the quantity and quality of the lands and ground to be allotted to them respectively, so far as may be consistent with the general convenience of the said proprietors; and that Commissioners, such commissioner or commissioners in making the said allotments shall in making Allothave particular regard to the convenience of the owners or proprietors of ments, shall the smallest estates in the lands and grounds directed to be allotted and have due regard exchanged. to the situation of Houses as well as to the quantity and quality of Land. 'XIII. And whereas the proprietors and persons interested in open Commissioners 'common fields meadows pastures commons and waste lands directed may direct 'to be divided and allotted, whose allotments thereof will be small and small Allotexpensive to inclose, may be desirous of stocking and depasturing their ments to be allotments in common, and of sharing such produce as may grow laid together 'thereon, under proper regulations;' be it therefore further enacted, That and ring-fenced, such commissioner or commissioners shall be, and he or they is and are depastured in hereby fully authorised and empowered, on application of the parties interested, at their first or second meeting for receiving claims, and on an attentive view and full consideration of the premises, to award order and direct any such allotments to be laid together and ring-fenced, and to be stocked and depastured in common, and to make such orders and regulations for the equitable enjoyment thereof, and for the participation of any produce growing or to grow thereon, as such commissioner or conmissioners may think beneficial and proper for the said several parties interested therein. and stocked and Proprietors. common by the which shall cease on Notice from the Commissioners affix XIV. And be it further enacted, That the several shares of and in Allotments any lands or grounds which shall upon any such division be assigned shall be in full set out allotted and applied unto and for the several persons who shall compensation be entitled to the same, shall when so allotted be and be taken to be in for all rights in full bar of and satisfaction and compensation for their several and rethe Lands, spective lands grounds rights of common, and all other rights and properties whatsoever, which they respectively had or were entitled to in and over the said lands and grounds immediately before the passing of any such Act; and that from and immediately after the making the said division and allotments, and the execution of the award of such commissioner or commissioners, or at any other time as such commissioner or commissioners shall by writing under his or their hands, to be affixed on the principal door of the church of the parish in which the lands and grounds shall be situate, direct or appoint, all rights of common, and all rights whatsoever by such Act intended to be extinguished, belonging to or claimed by any person or persons whomsoever bodies politic or corporate in over or upon such lands or grounds, shall cease determine and be for ever extinguished. ed on the Church Door. XV. And be it further enacted, That such commissioner or commís- Commissioners sioners shall, and he or they is and are hereby authorised to set out may exchange allot and award any messuages buildings lands tenements hereditaments Allotments, new allotments or old inclosures within such parish or manors, in lieu Messuages, of or in exchange for any other messuages buildings lands tenements Lands, &c. with hereditaments new allotments or old inclosures within the said parish the Proprietors, or manors, or within any adjoining parish or place; so as that all such exchanges be made with the consent of the respective owners proprietors or if belonging the consent of &c. with the to Churches, or other persons seised of the lands hereditaments and premises which shall respectively be so exchanged as aforesaid, or of the husbands guar- consent of the dians trustees committees or attornies acting for or on behalf of such Bishop and of owners proprietors or other persons respectively, who are under cover- the Patron. ture, minors lunatics or beyond the seas, or under any other disability or incapacity of acting for themselves (such consent to be testified by writing under their respective hands) and so that all such exchanges be ascertained specified and set forth in the award of such commissioner or commissioners; and so that all such exchanges of any lands tenements or hereditaments belonging to or held in right of any church chapel or eeclesiastical benefice, shall also be made with the like consent in writing No. VII. 41 Geo. III. c. 109. Commissioners may make Allotments in Severalty to Joint Tenants or Tenants in common. Persons shall accept their Allotments in a limited time, or forfeit their Right. Guardians, &c. may accept for incapacitated Persons and Tenants for Life shall accept of Allot ments. of the bishop of the diocese, and of the patron of any church chapel or ecclesiastical benefice for the time being; and all such exchanges so made as aforesaid shall be for ever good valid and effectual in the law, to all intents and purposes whatsoever. XVI. And whereas it may happen that some of the proprietors of messuages cottages tenements or lands in any such parish or manor, and persons entitled to allotment or allotments to be made by virtue of any such Act, may be seised thereof or entitled thereto in joint tenantcy, or as coparceners or tenants in common, and cannot by reason of in'fancy settlement or absence beyond seas make an effectual division 'thereof;' be it therefore further enacted, That it shall be lawful for any such commissioner or commissioners, and he or they is and are hereby authorised and empowered (upon the request in writing of such joint tenants or coparceners or tenants in common, or any or either of them, or of the husbands guardians trustees committees or attornies of such as are under coverture minors lunatics, or under any other incapacity as aforesaid, or absent beyond, seas) to make partition and' division of the messuages cottages tenements lands and allotment or allotments to such of the said owners or proprietors who shall be entitled to the same as joint tenants coparceners or tenants in common, and to allot the same accordingly to such owners and proprietors in severalty; and from and immediately after the said allotments shall be so made and declared, the same shall be holden and enjoyed by the person or persons to whom the same shall be allotted in severalty, in such and the same manner, and subject to such and the same uses, as the undivided parts or shares of such estates would have been held in case such partition and division had not been made. XVII. And be it further enacted, That all and every person or persons to whom any allotment or allotments shall be made by virtue of any such Act shall, and he she or they is and are hereby required to accept his her and their respective allotments within the space of two calendar months next after the execution of the award, directed to be made in and by any such Act; and in case any person or persons shall neglect or refuse to accept of his her or their share or allotment within the time before mentioned, such person or persons so neglecting or refusing shall be totally excluded from having or receiving any estate or interest or right of common whatsoever in any part of the lands and grounds to be divided and inclosed by virtue of any such Act. XVIII. Provided always, and be it further enacted, That it shall and may be lawful for the respective guardians husbands trustees committees, or attornies of any person or persons being minors femes covert lunaticks beyond the seas or otherwise incapable by law, to accept any such allotments as shall be made by virtue of any such Act, to and for the use of such person or persons so incapacitated as aforesaid; and also that any person or persons entitled to any allotment or allotments as tenant or tenants for life or lifes, shall be, and he she and they is and are hereby respectively enabled and required to accept of and take such allotment or allotments respectively; and every such acceptance respectively shall be and is hereby declared to be valid and effectual to all Non-acceptance intents and purposes whatsoever: Provided further, That the non-claim or non-acceptance of any such guardian husband trustee committee or attorney, shall not exclude or in any way prejudice the right of any infant feme covert lunatick or other person or persons being under any disRights of inca ability or incapacity as aforesaid, or absent beyond the seas, who shall claim or accept such share or allotment within twelve calendar months next after such disability or incapacity shall be removed, or of any person entitled as heir in remainder after the death of any person dying during such incapacity or disability, who shall claim or accept the same within one year next after his her or their right title or interest shall have accrued descended or vested or be known so to be. of Guardians, &c. shall not prejudice the pacitated Persons who shall accept in a limited Time after enabled so to do. Before Execution of the XIX. And be it further enacted, That after the allotments shall be set out by such commissioner or commissioners, and at any time before Award, allotments may be ditched and inclosed, with the consent of the Commissioners, the execution of his or their award, it shall be lawful for any person or persons to whom any allotment or allotments shall be so made and staked or marked out, by and with the consent of such commissioner or commissioners in writing under his or their hands, to ditch fence off and inclose their respective allotments in such manner as such commissioner or commissioners shall so direct and appoint. No. VII. 41 Geo. III. c. 109. the Commis XX. And be it further enacted, That the timber trees and other trees Trees, &c. shall thorns and bushes standing and growing upon any waste lands or other be allotted with lands to be allotted by such Act, shall be allotted and go along with the the Lands lands whereon they respectively stand, and shall be deemed the property whereon they of the several persons to whom the same lands shall be respectively stand, the Parallotted, such persons paying to the owner or respective owners of the ties paying to said trees such sums of money for the same, and at such time or times the Owners and place or places, as the said commissioner or commissioners shall by such Sums as writing under his or their hand or hands direct; but if the said parties who are to make such respective payments shall neglect or refuse to direct; make the same accordingly, then it shall be lawful to and for the respective parties who shall be entitled to have and receive such payments, but in case of to enter on the said lands, and cut down take and carry away to their own neglect, the use the said trees thorns or bushes in respect of which the said payments Owners may were respectively to be made to them, at any seasonable time or times cut them down, within one year next after such neglect or default, they doing as little and take them damage on the said lands as may be. of sioners shall away. XXI. And be it further enacted, That whenever any sum of money is, Where Money under the provision of this Act or any such bill, to be paid for the pur- is to be paid for chase or exchange of any lands tenements or hereditaments, or of any tim- Lands, &c. ber or wood growing thereon, and which sum of money ought to be laid which ought to out in the purchase of other lands tenements or hereditaments, to be be laid out in settled to the same uses, it shall and may be lawful to and for such com- other purchases missioner or commissioners out of such sum to defray such proportion to be settled to of the expence of passing such Act and of carrying the same into execution, the same uses, as shall, if any, be charged upon any of the lands tenements or heredita- the Commisments of the person or persons body politick or corporate trustees or feoffees sioners may thereout defray in possession of the lands tenements or hereditaments so sold or exchanged, or on which such timber or wood actually grew, and also the expence a proportion of the expences of any permanent improvement, such as building sub-dividing draining or passing the Act, planting and the like, which shall in the judgment of such commissioner and putting it in or commissioners be proper to be made and shall be made under his or execution, &c.; their direction, upon any lands to be by virtue of such Act allotted to such and if the Surperson or persons body politick or corporate trustees or feoffees respec- plus amount to tively; and in case the surplus of such money shall amount to the sum 2001. it shall, as of two hundred pounds, then the same shall with all convenient speed be soon as may be, invested in the purchase of any lands or hereditaments, which shall be be laid out in conveyed and settled upon and subject to the like uses trusts and limita- other purtions as such land so sold or exchanged, or the lands on which such chases, and in timber grew were settled limited or assured; and in the mean time, and the mean time until such purchase can be made, such money shall be paid into the Bank be paid into the of England in the name and with the privity of the Accountant-General of Bank and applied under the the High Court of Chancery, to be placed to his account there ex parte direction of the the said commissioner or commissioners, without fee or reward, to the intent that such money shall be applied under the direction and with the approbation of the said court, to be signified by an order made upon a petition to be preferred in a summary way by the person or persons who would have been entitled to such lands tenements and hereditaments or timber respectively, either in or towards the redemption or purchase of land tax, or towards the discharge of any debts or incumbrances affecting the lands or hereditaments so purchased or exchanged, or on which such timber grew, or until the same shall upon the like application in a summary way be laid out by order of the said court in the purchase of other lands or hereditaments to be settled to the like uses; and in the mean time and until order can be made, such money may by order of the said court be laid out in some of the public funds or on government or real securities, and the dividends or interest arising therefrom shall, by order of Court of Chan cery. No. VII. 41 Geo. III. c. 109. be less than 2007. and up wards of 20. it shall, at the option of the person entitled to the Rents, be paid into the the said court, be paid to such person or persons as would for the time being be entitled to the rents and profits of such lands tenements and hereditaments, so to be purchased conveyed and settled. XXII. Provided always, and be it further enacted, That if any such money shall be less than the sum of two hundred pounds and shall exIf such Money ceed the sum of twenty pounds, then and in such case the same shall, at the option of the person or persons for the time being entitled to the rents and profits of the lands or hereditaments so purchased, or of his her or their guardian or guardians committee or committees, in case of infancy or lunacy, to be signified in writing under their respective hands, be paid into the bank in the name and with the privity of the said Accountant-General of the High Court of Chancery, and be placed to his account as aforesaid, in order to be applied in the manner before directed; or otherwise the same shall be paid at the like option to two trustees to be nominated by the person or persons making such option, and approved of by the commissioner or commissioners (such nomination and approbation to be signified in writing under the hands of the nominating and approving parties) in order that such principal money and the dividends arising thereon may be applied in manner herein-before directed, so far as the case be applicable, without obtaining or being required to obtain the direction or approbation of the said Court of Chancery. Bank, or to two approved of by sioners for the the Commis same purposes. If less than 201 it sha" be ap plied to the use of the person entitled to the Rents of the If any Person does not accept inclose and fence his Allot ment as the Commissioners shall direct, they may cause it to be inclosed and fenced and let, and receive the Rents until the Expences are satisfied, or they may charge them upon the Proprietor. During seven years after fencing Allotments, Fences may be erected on the outside of the Ditches, and the materials car ried away by the Proprietors. XXIII. Provided also, and be it further enacted, That where such money shall be less than twenty pounds, then and in such case the same shall be applied to the use of the person or persons who would for the time being have been entitled to the rents and profits of the lands or hereditaments so purchased, in such manner as the said commissioner or commissioners shall think fit, or in case of infancy or lunacy, then to his her or their guardian or guardians, committee or committees, to and for the use and benefit of such person or persons so entitled respectively. XXIV. And be it further enacted, That if any person to whom any allotment or allotments shall be made, or any guardian husband trustees feoffees committees, or attorney of any infant feme covert charity or charities lunatick idiot person or persons beyond the seas or otherwise incapable of acting respectively, or any tenant in tail or for life, or trustee or trustees for any settlement, or any mortgagee or mortgagees or other creditor in possession, shall neglect or refuse to accept inclose and fence his her or their allotment or allotments, within such time or times as such commissioner or commissioners by any writing as aforesaid, or by his or their award shall order or direct, it shall be lawful for such commissioner or commissioners to cause such allotment or allotments to be inclosed and fenced, and to let the same to any person or persons he or they may think proper, and to receive the rents and profits thereof until the expences attending the inclosure and fencing thereof are paid and satisfied, or to charge such expences upon the proprietor or proprietors of the same allotment or allotments; and by any such writing as aforesaid, or by his or their said award, to appoint to whom and at what time or times the same shall be paid, subject to the same mode and with the like powers of recovery thereof as may be provided respecting the other expences of passing any such Act and carrying the same into execution, or otherwise directed by any such Act. XXV. And be it further enacted, That it shall be lawful for the several proprietors of the allotments to be made in pursuance of any such Act, their agents or workmen, at any seasonable time or times within the space of seven years next after the fencing of any allotment or allotments, to set up and erect posts and rails or other dead fences on the outside of the ditches bounding their respective allotments, not exceeding three feet from such ditches, for the preservation of their quickset hedges, and at any seasonable time or times before the expiration of the said term, to take and carry away the materials of such outside fences when they shall think proper. No. VII. c. 109. XXVI. And be it further enacted, That no fences or hedges which at the time of the passing of any such Act shall be standing or growing in 41 Geo. III. or upon any of the lands directed to be divided and inclosed, shall be cut down or destroyed by the owners and proprietors thereof after the passing of such Act until the execution of the award, without the consent of such commissioner or commissioners first had and obtained in writing for No standing that purpose; and if any such fences or hedges shall be assigned or ap- Fences or proved by such commissioner or commissioners as and for a boundary Hedges shall be fence, or as and for a subdivision fence to and for any of the allotments to destroyed till be made in pursuance of such Act, all such fences and hedges shall be the execution left uncut for the benefit of the person or persons to whom such allot- of the Award, ment or allotments shall belong; and he she or they shall make such without consent compensation in money to the former owners and proprietors thereof, as such commissioner or commissioners shall, by writing under his or their ers, and if ashand or hands, in that behalf order and appoint, subject to the same mode signed as a and with the like powers of recovery thereof, as may in such Act be pro- Fence, shall be Boundary vided respecting the other expences of passing any such Act and carrying left uncut, the the same into execution. of Commission Persons entitled to the Allotments making compensation therefore. XXVII. Provided always, and be it further enacted, That no proprietors Where the whose allotments or shares shall, upon any such inclosure, lie and be Boundary of situate next and adjoining to any common field or inclosed grounds, the any Common boundary of which shall be fenced by any mound fence brook or rivulet, Fields, &c. shall shall be compelled to make or erect any hedges ditches or fences next be fenced by adjoining to any such common fields or inclosed grounds, for iuclosing any Mound, &c. such their allotments or shares; but that the whole mound fence brook the Proprietors or rivulet, or other sufficient fences which divide any such common fields lotments shall of adjoining Alor inclosed grounds from such allotments, shall for ever be and remain a not be compellboundary fence for the purpose of such division, and shall from time to ed to fence time be maintained kept cleansed scoured and repaired by the respective them; but such proprietors thereof, in the same manner as before the passing of this Act, Boundaries shall or in such other manner as such commissioner or commissioners shall be maintained order and direct: Provided nevertheless, That in case it shall happen by the Propriethat some of the proprietors shall have a greater proportion of fences to tors as before, make and maintain upon any of the lands directed to be divided and or as the Cominclosed, than in the judgment of such commissioner or commissioners missioners may the allotments of such proprietors ought to be charged with, it shall be appoint. lawful for such commissioner or commissioners, where he or they shall judge it proper, to ascertain and appoint such sums of money to be paid to every such proprietor towards making and maintaining such fences, by such other of the proprietors who may have a less proportion of fencing, according to the value and quantity of the lands to be allotted to them, and to grant such other relief in respect thereof, out of the money to be raised for defraying the expences of carrying such Act into execution, as he or they shall think reasonable, and in case any such money shall be so directed and raised, in order that the said boundary fences may be brought as near as may be to a just and equal proportion. authority of any Act, shall forfeit 54. and of the Lands the Proprietor XXVIII. And be it further enacted, That in case any person or per- Persons desons shall wilfully and unlawfully break down destroy carry away or stroying, &c. damage any fence stile post rail gate bridge or tunnel, which may be put Fences, &c. put up or placed under the authority and for the purposes of any such Act, up under the every person so offending, and being thereof convicted before any justice of the peace for the county in which the lands or grounds to be inclosed shall be situate, on confession or on proof of the offence by oath of one or more credible witness or witnesses, (which oath the said justice is hereby authorised to administer,) shall for every such offence forfeit and pay any sum not exceeding five pounds; and every person shall be allowed to give evidence of such offence, notwithstanding he may be a proprietor or occupier of lands within, or an inhabitant of such parish, and notwithstanding he may be the owner of any such fence stile post rail gate bridge or tunnel; to be recovered as herein-after provided.. &c. may give evidence. |