one justice of the county or district in which such lands are si- 41 G. 3. c. 109. tuated, upon information thereof upon oath before any such justice, shall for every such neglect or refusal forfeit not exceeding 10%. nor less than 5., as such justice or justices shall order. 34. Provided, that no witness summoned to attend such com- No witness missioner, &c. shall be obliged to travel above eight miles fromthe obliged to travel boundary of the parish, manor, or district by any such act in- beyond 8 miles. tended to be inclosed. shall be read proclaimed the next Sunday in the parish church, and Award to be in- 35. As soon as conveniently may be after the allotment of Commissioners the said lands, pursuant to the directions of this or any such act, shall draw up an the said commissioner, &c. shall draw up or cause to be drawn up award, containan award in writing, which shall express the quantity of acres, ing sundry particulars, which roods, and perches in statute measure, contained in the said lands, and the quantity of every part and parcel thereof which shall be and executed at so allotted, assigned, or exchanged, and the situations and descrip- a meeting of the tions of the same respectively, and shall also contain a description of proprietors, and the roads, ways, footpaths, watercourses, watering places, quarries, bridges, fences, and land marks set out and appointed by the said commissioner, &c. respectively as aforesaid, and all such other rules, orders, agreements, regulations, directions, and determina- then considered tions, as the said commissioner, &c. shall think proper to the par- as complete. ties; which award shall be fairly ingrossed or written on parchment, and shall be read and executed by the commissioner, &c. in the presence of the proprietors who may attend at a special general meeting called for that purpose, of which ten days' notice at least shall be given in some paper to be named in such act, and circulating in the county, and which execution shall be proclaimed the next Sunday in the parish church where such lands shall be, from the time of which proclamation only and not before such award shall be considered as complete; and shall, within twelve calendar months after the same shall be so signed and sealed, or so soon as conveniently may be, be inrolled in one of his majesty's courts of record at Westminster, or with the clerk of the peace for the county in which such lands shall be situated, to the end that recourse may be had thereto by any person interested therein, for the perusal whereof no more than 1s. shall be paid; and a copy of the said award, or any part thereof, signed by the proper officer of such court, or by the clerk of the peace for such county or his deputy, purporting the same to be a true copy, shall from time to time be made and delivered by such officer or clerk of the peace for the time being as aforesaid to any person requesting the same, for which no more shall be paid than 2d. for every sheet of 72 words; and the said award, and each copy of it or any part Award and cothereof, signed as aforesaid, shall at all times be admitted in all pies to be legal courts whatever as legal evidence; and the said award or instru- evidence, and ment, and the several allotments, partitions, regulations, agree- binding on all award to be ments, exchanges, orders, directions, determinations, and all other parties interestmatters therein mentioned, shall, to all intents and purposes, be ed. binding and conclusive, (except where some provision to the contrary is herein or shall be by any such act contained,) upon the said proprietors, and all parties concerned or interested in the same, or in any lands, grounds, or premises aforesaid; and also Commissioners that the said respective commissioners, if they think it necessary, shall draw or cause to be drawn on parchment or vellum such maps or plans of the said lands, the better to describe the several clerk of the peace of the county, and may be inspected, and copies certain sum. obtained for a may form maps of the grounds, annexed to the which shall be award, and deemed part thereof. 41 G. 3. c. 109. new allotments or divisions to be made, and premises that shall be exchanged by virtue of this act, and which shall express the quantity of each allotment in acres, roods, and perches, together with the names of the proprietors at the time of such division and allotment; which maps and plans shall be annexed to and inrolled with the said respective award, and shall be deemed part of the said award. Commissioners shall keep an account of all monies received and disbursed, which may be inspected at their clerk's office gratis. Penalty for not keeping such account, or for refusing the inspection thereof, Monies raised under any act shall be deposited as may be approved by a majority in value of the proprietors, and not issued with out an order from the commissioners. The rector or vicar, with the consent of the bishop of the diocese, and of the patron of the living, may lease allotments for 21 years, upon certain conditions. § 36. Such commissioner, &c. shall enter in a book to be provided for that purpose a particular account of all sums received from the proprietors or others during the progress of the inclosure; and also of all the charges, expenses, and disbursements which shall accrue or be made by virtue of any such act, and in carrying the same into execution; such book of accounts to be kept at the clerk's office open at all seasonable times during the progress of the inclosure and till the accounts are finally settled, for the inspection of any of the proprietors, without fee; and if any such commissioner or commissioners, or their clerk, shall neglect to provide and keep such book, or refuse the inspection thereof to any of the proprietors at seasonable times in manner before mentioned, and shall be convicted thereof, upon the oath of a credible witness not interested in the intended division and inclosure, before any justice of the county in which the lands to be inclosed shall be situate, or of such other county or place where such commissioner or clerk so offending shall be or reside, every such commissioner or clerk so causing such neglect or refusal, and convicted as aforesaid, shall forfeit for every such offence not exceeding 101. nor less than 57., to be levied, recovered, and applied in the same manner as other penalties are by this act directed. § 37. All monies to be raised by virtue of any such act shall, from time to time, as often as the same shall amount to the sum of 50l., be deposited in the hands of some banker, or such person as shall be approved by a majority in value of the proprietors present at the first meeting of such commissioner, &c.; in the notice of which meeting shall be expressed the intention of then appointing such banker or such other person; and no such monies deposited or paid into the hands of such banker, or other persons to be appointed as aforesaid, shall be issued or paid by them without an order in writing under the hands of such commissioner, &c. specifying the person or persons to whom the same are respectively payable, and the consideration for which the same are due; and the balance, if any, upon the final settlement of accounts shall be immediately repaid to the land owners in proportion to the sums respectively paid by them. 38. It shall be lawful for the rector or vicar for the time being of any parish wherein the lands and grounds intended to be inclosed shall be situate, by indenture or indentures under his hand and seal, with the consent and approbation of the bishop and patron, to demise all or any part or parts of the allotment or allotments to be set out and allotted to any such rector or vicar, by virtue of any such act, to any person or persons for any term not exceeding 21 years, to commence within 12 calendar months next after the executing the award; so that the rents for the same shall be thereby reserved to the rector or vicar for the time being by four equal quarterly payments in every year; and so that there be thereby also reserved and made payable to such rector or vicar the most improved rent that can reasonably be had or gotten for 41 G. 3. c. 109. the same, without taking any fine, foregift, premium, sum of money, or other consideration, for making or granting any such lease or demise; and so that no such lessee by any such demise be made dispunishable for waste, by any express words to be therein contained; and so that there be inserted in every such lease power of re-entry on non-payment of the rent or rents thereby reserved within a reasonable time to be therein limited after the same shall become due; and so that a counterpart of such lease be duly executed by the lessee or lessees; and every such lease shall be valid. § 39. All penalties and forfeitures imposed by this or any such Recovery and act, or which shall be imposed by such commissioner, &c. by application of virtue of this or any such act, shall be levied and recovered before penalties. any one justice for the county in which the lands to be inclosed shall be situate, and residing near any such parish, and not interested in the matter in question; for which purpose it shall be lawful for any such justice, upon complaint, to summon the party accused and the witnesses on both sides; and upon the appearance or contempt of the party accused, to examine such witnesses upon oath, and upon such evidence to give judgment accordingly, and to condemn the party accused (proof of the accusation being made by one or more witness or witnesses as aforesaid), in such penalties and forfeitures as the offenders shall have incurred, and to levy such penalties, &c. by distress and sale, with reasonable costs; all which penalties, &c. the application whereof is not particularly directed by any such act, or this act, shall, when the same shall be levied, be paid and applied to such purposes as such commissioner, &c. by any writing or writings under his or their hands, or by his or their award, hall appoint. 40. Nothing in such act contained shall prejudice the right, &c. of any lord or lady of any manor or lordship, or reputed manor er lordship (except the interest and other property as is or are intended to be barred by such act). 41. And a general saving of the rights of the crown. 42. It shall be lawful for any two or more justices to take affidavits on oath or affirmation of the notices required for such bills having been given, of the consent of the parties interested, of the allegations contained in the preambles thereof, and of the quantity of the land to be inclosed; and such affidavits shall be in the forms contained in the schedule annexed, as near as the circumstances of the case will admit; and such affidavits shall not be subject to any stamp duties. Saving of the rights of lords of manors. General saving. Two justices may take affidavits of the having been notices required given, &c. in the forms in the schedule, without stamps. § 43. If any person shall in any examination, affidavit, deposi- Persons for tion, or affirmation, taken in pursuance of this act before such swearing themjustice or justices, or such commissioner or commissioners know- selves to be ingly and wilfully swear or affirm any matter or thing which deemed guilty shall be false or untrue, he shall, on conviction, be deemed guilty of perjury, and suffer the penalties of wilful and corrupt perjury. of perjury. $44. Provided, that all the powers, &c. of this act shall be only Powers hereof, so far binding in each particular case, as they or any of them shall how far binding. not be otherwise provided and enacted in any such act hereafter to be passed as aforesaid. VOL. III. R. v. Justices of Derbyshire, 4 T. R. 488. By an inclosing act, an appeal was given to the next sessions within six calendar months after the cause of complaint, at which said sessions the justices were authorised and required to hear and determine the matter of such appeal, and make such order as to them should seem reasonable; the appellant moved the court of sessions (in due time) to receive and respite his appeal to the next sessions, which was refused, because the following sessions would not happen before the expiration of six months after the cause of complaint; the court of K. B. had no doubt but that the clause was compulsory on the justices to receive the appeal, but not to respite it, and therefore refused to grant a mandamus to the justices to receive it. R. v. the Justices of Wiltshire, 13 East. 352. By a local act, 49 G. 3. c. 110., for inclosing lands in the parish of Stockton in Wiltshire, it is provided, that " If any person shall think himself aggrieved by any thing done in pursuance of the general inclosure act or of this act, &c. he may appeal to any general quarter sessions of the peace which shall be holden for the said county of Wilts, within four calendar months next after the cause of complaint shall have arisen, on giving notice, &c. and the justices at the said general quarter sessions are hereby required to hear and determine the matter of every such appeal, and to make such order and award such costs as to them in their discretion shall seem reasonable." A motion was made on a former day in this term for a mandamus to the defendants to enter continuances, and proceed to hear and determine at the next sessions, an appeal which had been lodged by a party grieved by the inclosure at the last October sessions held at Marlborough, being within the four months, as he stated, after the cause of complaint had arisen. But the justices having, for the more convenient consideration of the ease, adjourned the appeal to the then next January sessions held at Devizes, the justices there assembled considered that the time of appeal was expired, and that they could not take cognisance of it, and therefore refused to proceed upon it. Lord Ellenborough C. J. then said, upon granting a rule to shew cause, that there was a power necessarily incident to the sessions to adjourn the consideration of an appeal properly lodged before them. On shewing cause it was stated that the appeal was adjourned from the October sessions upon the application of the appellant himself, who was not then ready to enter into it on account of the absence of a material witness; that the grievance, if any, existed as early as March last, the grievance stated by the appellant being, that he had not so large an allotment as he ought to have had, and that and other allotments having been made and staked out from the 7th to the 10th of March, and notice thereof given to the appellant, who immediately took possession and cropped the land; but that on the 6th of July an alteration in the allotment was made by the commissioners with the express consent of the appellant, whereby an exchange was made of about a quarter of an acre out of 200 acres with another person; they therefore contended that the supposed grievance existing so early as in March, the party was out of time to appeal to the October sessions; they also contended that the appellant was estopped from appealing at all against the sufficiency of his allotment after taking possession of and cropping the land, by which the quality of it was deteriorated. Lord Ellenborough C. J. I hold without any doubt that the court who are to try the appeal have an incidental authority to adjourn it when once properly lodged, if it be necessary for the advancement or convenience of justice, and that the sessions are to judge of the proper occasion for doing so. But the act of the party himself in preferring his appeal must be within the limited time. Lord Ellenborough C. J. The grievance complained of being the insufficiency of the whole allotment which was made and staked out so long ago as in March, and of which the appellant then had notice, and actually took possession of and enjoyed it, the grievance, if any, arose in March, and therefore he was too late to appeal in October. The mere staking out the ground by the commissioners might not be a grievance, for that might be done behind the party's back, and without notice to him; but here he took possession and cropped the land, which was down land, and could not afterwards be restored to its original state; that makes an end of the question, for he was then clearly out of time in his appeal. Rule discharged. were empower ed (inter alia) to make roads and to defray the expense by rate on the a Haggerston v. Dugmore and others, 1 B. & A. 82. The de- Where commis. fendants were commissioners under an inclosure act, and had de- sioners, by an strained upon plaintiff's goods for a rate imposed by them to defray inclosure act, the expenses of completing the roads; and the whole question turned upon the legality of that rate. The act of parliament passed in 1809; the commissioners made their award in 1811, the roads at that time not being completed; and before the making of the award, the expenses attending the act were settled and adjusted at a certain sum, including therein a sum paid into the hands of the surveyor for completing the roads, (but which was admitted to be wholly inadequate for that purpose). The present rate was made in 1815, four years after the execution of the award. At the trial before Abbott J. at Cambridge Sum. Ass. 1817, it was contended that the authority of the commissioners ceased on the execution of the award, and that they had no power to make the rate in question. The learned judge, however, thought that the rate was legally imposed, and nonsuited the plaintiff. On motion to set aside the nonsuit, the Court of K. B. were unani mous in refusing a rule. Et per Holroyd J. The power of the commissioners must, from the reason of the thing, continue till they have fully executed the duty imposed upon them by the act; till the roads have been completed, they have not fully discharged their duty, and therefore their authority is not finally executed. The argument (if of any weight) rather goes to affect the award of the commissioners, than to prove that they have executed their authority. Rule refused. Respecting the breach of inclosures and other matters relative thereto, see Wood. several proprietors, and they executed their award as to the allotments be fore the roads were completed, or sufficient funds were raised for that purpose: held that they might afterwards make a rate to defray the expense of completing the roads. |