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No. 7.

Vicar with the

Patron of the Liv.

for 21

Years, upon certain Conditions.

Lands and Grounds intended to be inclosed shall be situate, by Indenture or Indentures, under his Hand and Seal, with the Consent 41 G. III. c. 109. and Approbation of the Bishop of the Diocese, and of the Patron of The Rector or the said Rectory or Vicarage, to lease or demise all or any Part or Consent of the Parts of the Allotment or Allotments to be set out and allotted to any Bishop of the Dio. such Rector or Vicar, by Virtue of any such Act, to any Person or cese, and of the Persons whomsoever, for any Term not exceeding twenty-one Years, ing, my lease Alto commence within twelve Calendar Months next after the executing lotments the Award; so that the Rent or 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 best and most improved Rent or Rents that can reasonably be had or gotten for the same, without taking any Fine, Foregift, Premium, Sum of Money, or other Consideration, for the making or granting any such Lease or Demise; and so that no such Lessee by any such Lease or 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 to be 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 to whom such Lease shall be so made as aforesaid; and every such Lease shall be valid and effectual, any Law or Usage to the contrary notwithstanding.

one Justice,

XXXIX. And be it further enacted, That all Penalties and Peralties shall be Forfeitures imposed by this or any such Act, or which shall be im- recoverable before posed by such Commissioner or Commissioners under or by Virtue of the Authority of this or any such Act, shall be levied and recovered before any one Justice of the Peace for the County in which the Lands or Grounds 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 of the Peace, upon Complaint made to him, 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, (which Oath any such Justice is hereby empowered to administer,) 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 and Forfeitures by Distress and Sale of the Offender's Goods and Chattels, together with reasonable Costs; all which Penalties and Forfeitures, and applied the Application whereof is not particularly directed by any such Act cording to Direc or this Act, shall, when and so soon as the same shall be levied, be tion of Commis. paid and applied to and for such Uses, Intents, or Purposes, as such Commissioner or Commissioners, in and by any Writing or Writings under his or their Hands, or in and by his or their Award, shall order, direct, or appoint.

sioners.

ar.

Swig of the

XL. And be it further enacted and declared, That nothing in such Act contained shall lessen, prejudice, or defeat the Right, Title, Rights of Lords or Interest of any Lord or Lady of any Manor or Lordship, or reputed of Manors. Manor or Lordship, within the Jurisdiction or Limits whereof the Lands and Grounds thereby directed to be divided and allotted are situate, lying, and being, of, in, or to the Seigniories, Rights, and Royalties incident or belonging to such Manor or Lordship, or reputed Manor or Lordship, or to the Lord or Lady thereof, or to any Person or Persons claiming under him or her, but the same (other than and except the Interest and other Property as is or are meant or intended to be barred by such Act) shall remain, in as full, ample, and benefi

No. 7.

cial Manner, to all Intents and Purposes, as he or she might or ought 41 G. III. c. 109. to have held or enjoyed such Rights before the passing of such Act, or in case the same had never been made.

XLI. Saving always to the King's most Excellent Majesty, his General Saving. Heirs and Successors, and to all and every other Person and Persons, Bodies Politick and Corporate, and his, her, and their Heirs, Successors, Executors, and Administrators, all such Estate, Right, Title, and Interest, (other than and except such as are hereby intended to be barred, destroyed or extinguished) as they, every, or any of them, had or enjoyed of, in, to, or out of, or in Respect of the said Lands, Grounds, and Premises so directed to be divided, allotted, and inclosed, or exchanged as aforesaid, before the passing of such Act, or could or might have had or enjoyed in case the same had never been made.

take Affidavits of

XLII. And be it further enacted, That it shall and may be lawTwo Justices may ful for any two or more Justices of the Peace to take Affidavits on the Notices re- Oath or Affirmation (which Oath or Affirmation such Justices are quired having been hereby authorized and empowered to administer) of the Notices reForms in the quired for such Bills having been given, of the Consents of the Parties Schedule, without interested therein, of the Allegations contained in the Preambles of Stamps.

given, &c. in the

such Bills, and of the Quantity of the Land to be inclosed; and that such Affidavits shall respectively be in the Forms contained in the Schedule hereunto annexed, as near as the Circumstances of the Case will admit; and that such Affidavits shall not be subject or liable to any Stamp Duties whatsoever.

XLIII. And be it further enacted, That if any Person or Persons Persons forswearshall, in any Examination, Affidavit, Deposition, or Affirmation, to ing themselves shall be deemed be had or taken in pursuance of this Act, before such Justice or guilty of Perjury. Justices, or such Commissioner or Commissioners, knowingly and wilfully swear or affirm any Matter or Thing which shall be false or untrue, every such Person so offending shall, on Conviction thereof, be deemed guilty of Perjury, and shall suffer the like Pains and Penalties as Persons guilty of wilful and corrupt Perjury are now subject and liable to.

How far this Act

XLIV. Provided always, and be it enacted, That all and every shall be binding. the Powers, Authorities, Directions, and Provisions in this Act contained, shall be only so far effective and binding in each particular Case, as they or any of them shall not be otherwise provided and enacted in any such Act hereafter to be passed as aforesaid.

SCHEDULE to which the ACT refers.

(A).

FORM OF AFFIDAVIT OF NOTICES.

A. B. of maketh Oath and saith, [or, being one of the People called Quakers, upon his solemn Affirmation, saith That he did see a Copy of the Notice hereunto annexed, affixed on the Church Door of the Parish of in the County of [or, on the several Church Doors of the in the County of

respective Parishes of
or, in the several Counties of

and

on the several Sundays hereinafter men

tioned; videlicet [specifying the Days on which the Notices were affixed.]

Sworn, [or, solemnly affirmed] before us, two of his Majesty's Justices of the Peace acting in and for the

and sub

scribed in our Presence, by the above named

Signed A. B.

No. 7.

41 G. III. c. 109.

4. B. this

Day of

in the Year

As Witness our

Hands and Seals.

(B).

FORM OF AFFIDAVIT OF CONSENT.

A. B. of

maketh Oath and saith, for, being

one of the People called Quakers, upon his or her solemn Affirmation, saith] That he or she] believes himself [or herself] to be interested in the proposed Inclosure of the

in the

[here describe the Place, whether Parish, Hamlet, or Place] in the County of by Virtue of [here set forth the Interest of the Deponent]; [or] that he [or she] believes that C. D. of for whom he [or

she] is Guardian [et cetera, as the Case may be] is interested, et cetera; and that he [or she] hath seen a Copy of an Act [here set forth the Title of this Act] and also a Copy of the Bill intended to be presented to Parliament, and hath subscribed his [or her] Name or hath set his [or her] Mark to the same respectively, and doth consent to the said Bill being passed into a Law.

Signed or marked A. B. Sworn [or, solemnly affirmed] before us, two of his Majesty's Justices of the Peace, acting in and for the

and subscribed in our Presence, by the above mentioned 4. B. this

in the Year

As Witness our Hands and Seals.

Day of

The same Form may be applied, mutatis mutandis, to the Case of several Persons whose Interests are joint, or whose Interests, though distinct, are of a similar Nature.

(C).

FORM OF AFFIDAVIT OF ALLEGATIONS OF
THE BILL.

A. B. of
maketh Oath and saith, [or, being
one of the People called Qnakers, upon his or her solemn Affirmation,
saith] That [here set forth such of the several Facts alledged in the
Preamble of the Bill as are within the Knowledge of the Witness], or,
that he or she is informed and verily believes that [here set forth
such of the said Facts as are within the Belief of the Witness.]

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Signed A. B.

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FORM OF AFFIDAVIT OF ADMEASUREMENT. maketh Oath and saith, [or, being

A. B. of

one of the People called Quakers, upon his solemn Affirmation, saith
That he has surveyed and admeasured the several
in the Parish or Hamlet of

[or, Counties of

Lands

in the County of ]described in the Bill intended

to be presented to Parliament, and signed by the Deponent, by the Name [or Names] of

such Lands amount to

and that the Quantity of and no more, according

to such Admeasurement, and the best of this Deponent's Judgment.

Sworn [or, solemnly affirmed] before us, two
of his Majesty's Justices of the Peace acting
in and for the

and sub

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A. B.

337

PART II. CLASS IV.

JOINT-TENANTS, COPARCENERS, AND
TENANTS IN COMMON. *

No. 1.

13 Edward I. c. 2?.-Waste maintainable by one Tenant in common against another.

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HEREAS two or more do 13 Edw. I. c. £2. 21 Ed. 3. f. 29.

Whold Wood, Turf-land,

or Fishing, or other such Things Fitz. Waste, 25, ' in common, wherein none know- 96.

eth his several, and some of them 2 Inst. 403. 'do Waste against the Minds of Co. Lit. 200. the other, an Action may lie by 52 H. 3, c. 23: a Writ of Waste; and when it 6 Ed. 1, c, 5.

* Partition is often enforced by Suit in Equity, and such was for a considerable Time the more usual course, but the Proceeding by Writ of Partition is now very frequent, and is attended with the Advantage of operating upon the Estate itself, whereas a Court of Equity can only direct Conveyances. In Parker v. Gerard, Ambl. 236-Nevis v. Levene, cited ibid, it was held, that the Partition must be at the equal Expence of the Parties, however unequal their Shares, and although one Party offered to relinquish his Share rather than incur the Expence-but this Opinion has not been followed.-See Calmady v. Calmady, 2 Vesey, jun. 568.-See also a full Discussion of the Subject in a very complicated Case, Agar v. Fairfax, 17 Vesey, 533. In Barry v. Nash, 1 V. & B 351, it is laid down, that upon a Bill for Partition there are no Costs to the Hearing, and that the Costs of the Partition and Conveyances are to be borne in Proportion to the Interests. It might be a considerable Improvement of the Law to authorize Courts of Equity to effect Partitions which should be binding upon the legal Estates of Infants and absent Persons, and to award the Sale of Interests not conveniently susceptible of division. The Irish Statute, 9 W. III. c. 12, contains Provisions nearly similar to those of the English Statute, 8 & 9 W. c. 31, with the Addition of some useful Provisions respecting the Meers and Fences of the Lands allotted in Partition. The Irish Statute, 8 Geo. I. c. 5, obliges Proprietors and Tenants of neighbouring Lands to make Fences between their several Holdings, and the Statute 5 Geo. II. c. 9, Ir. contains Provisions for the Partition of Bogs.-See 1 Gabbett, 477 to 487.

As to Partition between Parceners, &c. of Advowsons to present by Turns, see Statute 7 Anne, c. 18, ante Part 1. Class II. No. 17.

See also 4 Anne, c. 16, (ante Class 1.) Section 27, as to Actions of Account by one Tenant in common against another.

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