334 tion of the commissioners un der an inclosure act, as to the boundaries of a parish to be in closed, is not conclusive of Inclosures. [See stat. 41 G. 3. c. 109. § 3. 3 Burn, 2.] The determina- REX v. Inhabitants of St. Mary, in Bury St. Edmunds, E. 2 G.4. 4 B. & A. 462. Order of removal from Rougham in Suffolk, to St. Mary, in Bury St. Edmunds. Confirmed by sessions subject to the opinion of K. B., on the following Case :-The pauper, in 1783, gained a settlement by hiring and service, in a house called Eldo Farm, which lay partly in Rougham and partly in St. Mary, in Bury. He had, at different times afterwards, in the course of 30 years and upwards, and up to the time of the removal, been refact as to what lieved by Rougham, while living in another parish. In the years were the boun1813 and 1814, separate inclosures took place of lands in Rougham daries antecedently to such and Bury. Under the Rougham inclosure act, in 1813, the comdetermination. missioners, in their award, ascertained and fixed the boundary line between Rougham and St. Mary, in Bury, and thereby included within the latter the apartment in which the pauper slept during his service at the Eldo Farm; and the commissioner under the Bury inclosure act, in 1814, also ascertained and fixed the boundaries of Bury by his award, and thereby found and declared, that the boundary of the parish of St. Mary, in Bury, proceeded along the boundary of Rougham parish, through the Eldo Farm house, as the same had been ascertained and fixed under the Rougham inclosure. In a perambulation also made subsequently to these acts, the parishioners of Bury included the apartment in which the pauper slept within the parish of St. Mary, in Bury. These facts being proved by the respondents, the appellants contended, that the boundary line set out by the commissioners was not conclusive, as to the actual boundary before the award, and tendered to the court evidence to prove, that, before the inclosure acts, the spot in question was in Rougham. This evidence was objected to; and the sessions, considering the award of the commissioners as retrospective and conclusive, rejected the evidence, and confirmed the order of removal. After argument, ABBOTT C. J. said, It seems to me, that great mischief might follow, if the court were to hold that the decision of the commissioners in this case, as to the boundaries of the parish, was conclusive, and at the same time retrospective; for many cases may be put, both of fines of lands and wills, in which such a decision might materially affect the rights of third persons. The best and safest course, therefore, will be, to hold such a determination not to be conclusive evidence of what the boundaries were previously to the period when it was made. In that case the sessions ought to have received the evidence which they have rejected; and I think, therefore, that the order of sessions should be quashed, and the case sent back to be re-heard. The other judges concurring - Case sent back to the sessions. By a clause in an inclosure act, a commissioner - See stat. 41 G. 3. c. 109. § 8. 3 Burn, 4. Rex v. Townsend, H. 2 G. 4. 5 B. & A. 420. By 55 G. 3. c. 43. § 15. (an act passed for inclosing lands in the parish of Hartlebury, in the county of Worcester), the commissioner thereby peace, was authorized to stop up any way, provided it order, and with the concurrence of two justices, and that order be done by the was to be sub ject to an appeal in like under such form manner, and restrictions complaint. Under this act, appointed was authorized to stop up, alter, or change any old car riage road, bridle way or footpath, passing or leading through any of the old inclosures within the said parish, provided that no such carriage road, bridle way or footpath, leading through any of the old inclosures of the said parish, should be stopped up, altered or changed without the concurrence and order of two justices of the peace, and which order should be subject to an appeal to the quarter sessions for the county of Worcester, in like manner, and under such forms and restrictions as if the same had been originally made by such justices. By § 36. any person thinking himself aggrieved by any thing done in pursuance of the act, was to be at liberty to appeal to the general quarter sessions of the which shall be holden for the county of Worcester, within six as if the same had been origimonths next after the cause of complaint should have arisen. nally made by Under this act the defendant was appointed commissioner, and on such justices. the 17th of August, 1820, made an order with the concurrence By a subsequent of two justices of the peace for the county of Worcester, for stop- clause, any party ping up a certain footpath leading through the old inclosures. aggrieved was to be at liberty Against this order, one S. Bateman appealed at the Epiphany ses- to appeal at sions, 1821, and the order was quashed. It was contended on behalf time within six of the defendant at the sessions, that the court had no jurisdiction, months after because, by the 55 G. 3. c. 68. an appeal against a similar order the cause of of two justices must be to the next sessions, but the counsel for the appellant urged, that the quarter sessions had jurisdiction, unless it could be shewn, that due notices of the order for stopping up the footway had been given, as required by stat. 55 G. 3. c. 68., previously to the Michaelmas sessions, 1820; and the court of quarter sessions required the defendant to prove, that such notice was given previously to those sessions, and that not being proved, they heard the appeal, and quashed the order. This order of sessions having been moved into the court of K. B. by certiorari, a rule nisi was obtained for quashing it, for insufficiency, on the ground, that appeal ought to have been to the Michaelmas sessions. Held, that a After argument, ABBOTT C. J. I am of opinion that this rule party aggrieved might, under ought to be discharged. By the 15th § of the inclosure act, the these circumappeal is to be to the quarter sessions, in such manner and under stances, appeal such forms and restrictions, as if the order had been originally at any time withmade by two justices. The act clearly contemplates an order in six months. afterwards to be made. To what sessions then must the party it be necessary have appealed, if the original order for stopping up the road had to give such been made by two justices? By 55 G. 3. c. 68., the appeal against notices where such an order must have been, not to the next quarter sessions roads are stopafter making the order, but to the sessions that should be holden ped up under next after the expiration of four weeks from the first day on which the provisions of the notices therein required were published. In this case no no- act? tices were ever published, and, therefore, if the order in ques tion had originally been made by two justices, the appeal could not have been to the Michaelmas sessions. The mode of appeal therefore pointed out in the 15th section was rendered impracticable, by the omission to give the notices required; but notwithstanding that omission, a party might be aggrieved by the stopping up of the road; and yet, according to the argument, if the 36th section is to be controlled by the 15th, he could have no appeal whatever, until the notices were published, which might not happen. I do not, however, mean to pronounce any decision, a road without Quære, whether an inclosure Private way, how stopped up by a commissioner under the general inclo sure act. 3 Burn, 6. Commissioners. 1&2 G. 4. c. 23. Landlords, or persons acting under their orders, may enter upon land allotted, and seize and dis train for rent, notwithstanding the commissioners' award whether it be incumbent upon a commissioner, in the case of stopping up a way, under an inclosure act, to give the notices required by stat. 55 G. 3. c. 68. But at all events, those notices not having been given in this case, I am of opinion, that the mode of appeal pointed out in the 15th section having become impracticable, the party aggrieved was entitled to appeal, at any time within six months. R. D. White v. Reeves and another, H. 58 G. 3. 2 Moore, C. P. 23. The plaintiff, having an allotment made to him by a commissioner, under an inclosure act, of land, over which the defendants had a private right of way before the passing of the act, but which way was not noticed or described amongst those set out by the commissioner appointed for executing that act, (the operation of which, as to the powers of setting out or stopping up roads, was left to the general inclosure act, 41 G. 3. c. 109.) may, under the 11th § of the latter statute, justify the stopping up of such way, without any directions from the commissioners for that purpose in the award, or any other road being set out or appointed in lieu of it. Doe v. Middleton, H. 2 & 3 G. 4. 2 Brod. & Bing. 214. Where three commissioners and their successors were appointed to transact the business under an inclosure act, and the act of any two of them was to be valid, an assessment executed by two, after the death of one of the three, and before the appointment of a successor, was holden invalid, there not being three commissioners in existence at the time. By stat. 1 & 2 G. 4. c. 23. intituled "An act to amend the law respecting the inclosing of open fields, pastures, moors, commons, and waste lands, in England," § 1. after reciting that whereas great inconveniences have arisen to landlords and other persons, owners of allotments allotted and set out to them by the commissioner or commissioners under or by virtue of several acts, already passed, for dividing, allotting, and inclosing of open and uninclosed fields, pastures, moors, commons, and waste lands, in England, by reason that such landlords and other persons, owners of allotments as aforesaid, cannot, before the execution and perfecting of the award or awards by such acts directed to be made by such commissioner or commissioners, distrain for the rent in arrear or unpaid for or in respect of such allotment or allotments; or support an action of trespass for any damage or injury done to such allotment or allotments, or an action of ejectment to recover the possession of such allotment or allotments, in consequence of the freehold or legal seisin thereof respectively not being vested in such landlords and other persons, owners of such allotment or allotments, by the award or awards of such commissioner or commissioners as aforesaid: For remedy whereof, it is enacted, that from and after the passing of this act, [19th April, 1821,]" it shall and may be lawful to and for all and every person and persons, to whom any allotment or allotments of land has or have been set out or allotted, or which shall or may hereafter be set out or allotted, and to whom the possession of such allotment or allotments hath been already given, by virtue of any order or direction, orders or directions, or to whom the possession thereof shall hereafter be given, by virtue of any order or direction, orders or directions in writing, in the form and specified in the schedule hereto annexed, and signed by the commissioner or commissioners acting under or by virtue of any act or acts of parliament now or 1&2 G.4. c. 23. hereafter to be passed for dividing, allotting, and inclosing any shall not be open fields, pastures, commons, moors, and waste lands in Eng- executed. land, and who shall have demised the same, or any part thereof, to any tenant or servant, or for their, his, or her bailiff or agent, bailiffs or agents, or any person or persons by them, him, or her authorized and employed for that purpose, to enter into and upon any such allotment or allotments, and to seize and distrain any goods, chattels, or effects which may be in or upon such allotment or allotments, or in or upon any other lands, tenements or hereditaments, held, occupied, or enjoyed by the tenant or occupier of such allotment or allotments along and together with any such allotment or allotments, for any rent that may be in arrear and unpaid for all or any part of such allotment or allotments, and either alone or together with any such allotment or allotments, and any other lands, tenements, and hereditaments, held, occupied, or enjoyed therewith, notwithstanding the award or awards of the commissioner or commissioners appointed in or named by or by virtue of any such act or acts so made and passed, or to be hereafter made and passed, shall not be executed and perfected by such commissioner or commissioners, by virtue or in pursuance of any such act or acts of parliament. 2. It shall be lawful for all and every person or persons, Actions at law to whom any such allotment or allotments is or are already may also be set out or allotted, or which shall or may be hereafter set out or brought. allotted, and to whom such possession as aforesaid hath been already given, by virtue of any order or direction, orders or directions, or the possession whereof shall hereafter be given to such person or persons by virtue of any order or direction, orders or directions in writing, in the form specified in the said schedule as aforesaid, and signed by such commissioner or commissioners as aforesaid, and to his, her, or their tenants, stewards, bailiffs, agents, or servants, to commence, prosecute, and maintain any action or suit at law, for any injury or damage that may be done or committed by any person or persons whomsoever, to the ground, soil, or herbage of any of such allotment or allotments, or to the walls, hedges, fences, ditches, gates, posts, rails, stills, cloughs, bridges or tunnels, already erected or to be erected in or upon any such allotment or allotments, and to bring, maintain, and prosecute any action or actions of ejectment, for recovering the possession of any such allotment or allotments, or any part or parts thereof, from any person or persons whomsoever, notwithstanding the award or awards of the commissioner or commissioners appointed in or named by or by virtue of any such act or acts now made and passed, or to be hereafter made and passed, shall not be executed and perfected by such commissioner or commisioners, by virtue or in pursuance of any such act or acts of parliament; any thing in any act or acts, or any construction of or implication from any act or acts, or any law, usage, or custom to the contrary in anywise notwithstanding. §3. Nothing in this act contained shall prevent or be construed to prevent or take away the right of any person or persons, bodies politic or corporate, and his, her, and their heirs, successors, and assigns, to appeal against the award or awards, order or directions SUPP. Ꮓ Act not to affect right of persons to appeal against award of commissioners. 1&2 G.4.c.23. of any such commissioner or commissioners, when made and executed, or the right of possession to any such allotment or allotments, which may be affected by the judgment of the court or such appeal; or to prevent or obstruct, or in anywise lessen or prejudice, any alteration or alterations to be made, ordered, or directed by any such commissioner or commissioners as aforesaid, for or in respect of any such allotment or allotments, in and by his or their award or awards, to be made and executed by virtue or in pursuance of any such act or acts of parliament as aforesaid. Where leases granted under 41 G. 3. c. 109. become void be fore the expir ation of their term, incum bents may grant new leases. See 5 Burn, 16. Powers of this in cases where not otherwise provided. 4. Whenever any lease or leases to be granted by any rector, vicar, or other incumbent, under the powers or provisions of an act passed in the 41st year of the reign of his late majesty king George the third, intituled 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, shall by any means become forfeited or void, or be surrendered before the expiration, by effluxion of time, of the term or terms thereby granted, then and in such case, and as often as the same shall so happen, it shall and may be lawful for the rector, vicar, or other incumbent for the time being of the same rectory, vicarage, or parish, by and with the previous consent of the ordinary and patron, to grant a new lease of the lands so demised, for such term or terms of years as shall, at the time or times of such avoidance, be then to come and unexpired of the original term or terms granted by such original lease or leases, subject nevertheless to the provisions and conditions contained in such original lease or leases, and then remaining unperformed and capable of having effect. § 5. The powers, authorities, and provisions in this act conact only binding tained 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 act hereafter to be passed, for dividing, allotting, and inclosing any open fields, pastures, commons, moors, or waste lands in England. Schedule to which the Act refers. A. B. [or, in case of two or more commissioners, we, A. B. C. D. &c.] the commissioner [or, commissioners] named and appointed in and by an act of parliament lately made and passed, intituled An Act [here insert the title of the act by which the commissioner or commissioners is or are appointed] do hereby order and direct, permit and authorize T. F. or his [her or their] bailiff or agent, to take possession of all that allotment [here describe the allotment or allotments by metes and bounds] by me [or us] set out or allotted, and staked or marked out to and for him [or her or their, as the case may be], under and by virtue of the said act, and to cultivate and manage, or to let and demise the same allotment [or allotments] to any tenant or tenants, as he [or as she or they, as the case may be], shall think proper: but nevertheless subject and without prejudice to any such order or orders, direction or directions, as I [or we] may think proper and expedient to make, in and by the award or awards to be hereafter executed by me [or us], |