1841. DOE dem. Duke of BEAUFORT v. NEELD. April 17. Wilde Solicitor-General, (with whom was Manning Serjt.) in the following term moved according to the leave reserved, and exhibited the consents and the commissioner's scheme, and referred to the 1 & 2 G. 4. c. 23. s. 1. (a) and s. 2 (b), and 6 & (a) Which enacts, "that it shall be lawful to and for every person or persons to whom any allotment or allotments of land has or have been set out or allotted, or which shall 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 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 hereafter to be passed for dividing, allotting, and inclosing any open fields, pastures, commons, moors, and waste lands, in England, 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, and hereditaments held, occupied, or enjoyed by the tenant or occupier 7 W. 4. c. 115. ss. 1. 26. 33. 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." (b) Which enacts," that it may be lawful for every person or persons to whom any such allotment or allotments is or are already set out or allotted, or which shall be hereafter set out or 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, and signed by such commissioner or commissioners as aforesaid, and to his, her, or their tenants, stewards, bailiffs, 35, 36. 45. (a). [Tindal C. J. The forty-fifth section is that which you will have to contend with.] In addition to the cases cited at the trial, Doe dem. Sweeting v. Hellard (b), and Doe dem. Dixon v. Willis (c), were mentioned. A rule nisi having been granted, Ludlow and Bompas Serjts. now shewed cause. No award having been made by the commissioner, the question is, whether, under the 6 & 7 W. 4. c. 115. ss. 33. 36. 45. a title to hold the close in question was vested in the defendant. [Tindal C. J. Sections 1. 26. and 35. were also referred to.] The thirty-third section cannot be made applicable to this case. Its object was merely to prevent any change in the nature of the holding resulting from the exchanges. The thirty-fifth sect. contains a proviso that all such exchanges shall be ascertained, specified, and declared in the award. [Tindal C. J. That may create a condition subsequent.] The proviso will prevent the exchanged lands from vesting completely in the parties. [Tindal C. J. It not unfre com agents or servants, to parts thereof, from any person (b) 9 B. & C. 789., 4 Mann. (c) 5 Bingh. 441. 3 Mo. & P. 24. 1841. DoE dem. Duke of BEAUFORT v. NEELD. June 5. 1841. DoE dem. Duke of BEAUFORT v. NEELD. quently happens that no award is ever made.] The forty-fifth section applies only to allotted lands. This section contains the further proviso, "that no exchange shall be made of any lands so held in right of any church, chapel, or other ecclesiastical benefice, without consent testified as aforesaid (that is, in writing, under the hand of the patron of the benefice, and of the bishop of the diocese in which such benefice is situate.") It is difficult to conceive that an exchange can be complete so as to create change of title before the award is made. [Tindal C. J. It has often been held that the legal title in allotments vests in the allottee before the making of the award.] In those cases the question has arisen after the commissioner has made his award. Sect. 45. applies to allotted lands, and not to those which have been exchanged. If the legal title were, as it is contended, vested in the allottee, the power given by the 45th section would be unnecessary. Under the 41 G. 3. c. 109. it was always understood that an allottee, &c. had no title until the award of the commissioner was made. Then came the 1 & 2 G. 4. c. 23. authorizing the allottee (sect. 1.) to distrain for rent, or (sect. 2.) to bring an action of trespass, in respect of lands, of which possession has been taken under an allotment signed by the commissioner, though no award has been made; but the authority thereby given does not extend to parties in possession under exchanges. Another objection is, that the scheme of the commissioner does not pursue the consents. According to the scheme Mr. Neeld is to receive No. 544. from the duke, but that number does not appear amongst those enumerated in the duke's consent. The cases of Kingsley v. Coates, Doe v. Weller, and Doe v. Saunder, upon which this rule was obtained, were cases, not of exchanges of old inclosures, but of allotments of waste lands to be inclosed; where, un 1841. DoE dem. Duke of V. NEELD. less the allottee were allowed to take and hold possession, the land would remain without a legal occupier until the award was made. Besides which, in each of those cases an award had been made before the question BEAUFORT as to the effect of the allotment arose. In Farrer v. Billing (a) it was held, that a power given by a local inclosure act, to fence their allotments, and to sell and convey before the publication of the award, had not the effect of vesting any legal seisin in the allottees; and, upon the authority of that decision, it was held in Ellis v. Arnison (b), that an incumbent's right to tithes was not extinguished by a statutory allotment of lands in lieu of tithe, under an inclosure act, until the commissioner had made his award. The duke has filed a bill against Mr. Neeld and the commissioner, for an injunction to restrain the latter from proceeding to make his award in conformity with the scheme or arrangement; and Mr. Neeld has filed his bill for an injunction to restrain the duke from proceeding in this action of ejectment. In the former suit the Vice-Chancellor has granted an injunction against proceeding with making of the award; but, in the latter suit, he has dissolved the injunction. Manning Serjt. (with whom was Wilde SolicitorGeneral) in support of the rule. By the consents the parties not only gave up certain specified closes, but also authorized the commissioner to determine what other lands they should receive in exchange, undertaking to ratify and confirm whatsoever he might do in the premises. These consents were, within the meaning of the thirty-fifth section, prospective consents in writing to the particular exchanges arranged by the commissioner, subject, it is true, to a possibility of being de(b) 5 B. & Ald. 47. (a) 2 B. & Ald. 171. 1841. DoE dem. Duke of BEAUFORT V. NEELD. feated by the non-performance of the condition subsequent of such exchanges being ascertained, specified, and declared in the award. 1839. If the language of the forty-fifth section, which speaks of a consent in writing to the exchanges, is to be considered as requiring the signature of the parties to a document, specifying all the closes to be given up, and also those to be taken in exchange, it must be admitted that the legal seisin in respect of Dunley Wood remains in the duke; and that, at law at least, he had full power to withdraw from the engagement entered into, by what has been called his consent of the 1st of June But if a writing expressing the closes to be given up, and containing an absolute and unconditional consent to accept such closes in exchange as the commissioner should appoint, satisfies the terms of the fortyfifth section; or if the court shall think it sufficient that there is a writing signed by the duke, particularising the closes to be given up, and a writing signed by the commissioner particularising the closes to be received in exchange, such last mentioned writing being prepared and signed under an express authority precedent, and ratified by the acceptance of the duke's agent at the meeting of the 31st of October, and recognised and confirmed by the subsequent taking possession, and demising of the closes received in exchange as the duke's own land, then it is submitted, that the exchange contemplated by the forty-fifth section has actually taken place. The parties, at all events, have in the most clear and distinct terms, conferred upon the commissioner the power of making exchanges between them. That power was acted upon by the commissioner, and recognised, if it need recognition, by the parties; and in March 1840, it was too late for the duke to revoke the authority after it had been so completely exercised. But supposing that the legal title to the closes ac |