MODERN PRECEDENTS

IN

CONVEYANCING.

CLASS IX.

MISCELLANIES.

No. I.

*An Agreement to apply for an Act of Parliament to inclose common Fields and waste Lands (1).

(1) Many acts have from time to time been passed from the 20 Hen. II. to the 13th of the late king, and which are still in force, to facilitate the inclosure and improvement of common and waste lands to a particular extent or for particular purposes: but on account of the alteration which the inclosures of wastes and commonable lands must unavoidably make, as well in the rights of the proprietors, as the interests of the parishioners, and to which their assent, could it be unanimously obtained, would in the greater number of cases be binding upon themselves only, and not upon their successors in title, by reason of their having a partial interest only in the land, as being only tenants for life, &c. or of the disabilities of coverture, infancy, &c.; it is frequently necessary that a particular, or, as it is called, a private act, should be obtained for the purpose; which being a species of assurance placed on record in the highest court of judicature in the United Kingdom, "substantiates, preserves, and perpetuates" the rights of all parties interested in the subject matter of the act; and see 2 Black, Com. 344.

This transcendant power of parliament is now also frequently had recourse to for the accomplishment of various other objects of public and private

ment.

Act of Parlia

ment.

Parties.

Recitals.

AGREEMENTS Lord of the Manor) of, &c. lord of the manor and soil, within the parish of and county of of the first part; (te rector or impropriator) of, &c., rector and owner in right of his church, [or impropriator] of the tithes accruing within the said parish, of the second part; and A. B. of, &c. &c., (tenants of the said manor), (being respectively freeholders and copyholders within the said parish), and the several other persons whose names are respectively hereunto subscribed (having severally a right of common and other rights or interests in the common fields and wastes within the same parish) of the third part. WHEREAS great loss and inconvenience have been heretofore sustained by the parishioners and inhabitants of the said parish of by reason of many of their lands lying intermixed with each other, and dispersed over the common fields within the said parish, whereby all or many of the said inhabitants, proprietors of land in the said parish, have commonable rights over the whole of the said fields, and which are thereby rendered incapable of being cultivated in the best mode of husbandry: And whereas there are divers waste lands within the said parish, whereupon the said parishioners have commonable rights: AND WHEREAS much of the said waste lands might be greatly improved and made more productive and beneficial to the said parishioners, if the same were enclosed and converted into tillage; but the same cannot be done without the authority of Parliament. Now THEREFORE THESE PRESENTS WITNESS, that it hath been, and hereby is, mutually and reciprocally concluded and agreed upon, by and between the several persons parties to these presents, for themselves severally and

WITNESS

agreement to apply to parlia

inent.

utility; as the making of roads, canals, and perfecting other extensive projects, which cannot be carried into effect without encroaching upon the private property of individuals. The enabling infants, committees of lunatics, tenants for life, bodies corporate, trustees of charities, and others, to convey or assent to the conveyance, exchange, partition, or other disposition of property, which, although calculated to benefit all persons interested in the subject, cannot otherwise be accomplished. But as preliminary agreements between parties competent to bind themselves will be nearly the same in point of form, for whatever purposes the act is formed, I have not thought it necessary to insert more than one precedent of this species of agreement, more particularly as most of the variations which would be induced by a reference to the subject matter of the act, may be easily extracted from the precedents of petitions and bills, which are given in the subsequent part of this work, under the title of "parliamentary forms;" and where will be found the petition and bill founded on the above agreement.

For an agreement between owners of common and waste lands to divide and inclose them upon their own authority, see post, No. xxxii.

Act of Parlia

ment.

respectively, [and for their several and respective heirs executors, ad- AGREEMENTS ministrators, (2) and assigns,] as follows, (that is to say) that an application shall be made to Parliament in the ensuing session, or as soon thereafter as may be, at the common expense of them the said (lord) and (tenants) in the proportions hereinafter mentioned, for liberty and authority to inclose, divide, and allot the aforesaid commons and waste lands to and amongst the several persons interested therein, in the proportions and in the manner hereinafter mentioned; and for that purpose to appoint certain persons, therein to be named, to act as commissioners for carrying the said act into execution. AND that the said commissioners shall or may, in the first place, Commissioners set out and apart in such place or places as they shall think most to set out ground for graconvenient and proper, such parcel of the said commons and vel, &c. waste grounds, not exceeding in the whole acres, for the purpose of furnishing gravel, stone, and hard materials, for the making and repairing the several roads and highways now being, or hereafter to be, made in pursuance of the said act, within the said parish of and for such other purposes as the said commissioners shall deem expedient. AND that the said commissioners And mark out shall and may mark out all such public and private roads and ways over or across the said common and waste lands, as they shall think necessary or proper. AND that thereafter one full th part (3) Extra allotof the residue of the said commons and waste lands, shall be allotted by the said commissioners to the said (lord) for his share or proportion thereof, as the lord of the said manor, and soil of the said parish, over and above what the said commissioners shall deem it right to allot to him, in respect of his freehold lands within the same parish (4). AND that after such one th part of the said commons and wastes shall be so allotted, the said commissioners shall set out and allot unto the said (rector), [or impropriator] one th part (5) of the then residue of the said commons and waste lands, in lieu of

roads.

ments to the lord in respect

of his manorial rights.

And to the rec

tor for his glebe.

(2) It is usual to make parties covenant for their representatives, as well as themselves, but this is not necessary. See ante, Introduction, p. xi.

(3) A twentieth part is usually allotted to the lord.

(4) The lord is entitled to an allotment in respect of his demesnes, besides his allotment as lord of the manor, Arundell v. Falmouth, 2 Maul. and Selw. 440., for the lord is to be considered as one of the proprietors; and if the law were otherwise, the lord would never consent to an inclosure.

(5) The allotment to the rector or vicar is generally about a fifteenth part.

Act of Parlia

ment.

Then to the

respect of their commonable rights.

AGREEMENTS and in recompense for his glebe lands belonging to him in the said parish as rector aforesaid, and of his rights of common in respect thereof. AND that from and after the several allotments shall be so made by the commissioners to the said (lord) and parishioners in (rector) respectively, then and thereafter all and every the residue or remaining parts of the said common and waste lands, shall be allotted by the said commissioners to the said (tenants), parties hereto, and the several other freeholders, and copyholders, and others, within the said parish, in proportion to the value of their several and respective lands, and estates and interests therein (4), due regard being had as well to the quality and contiguity of situation of the lands, wherein such their estates and interests subsist, as to the quantity of the same respectively: and also in proportion to Rector or im- and in respect of their several and respective commonable rights and

proprietor to have tithes.

interests in and upon the same commons and waste lands. AND it is further agreed, that the said act shall provide that the said (rector) and his successors [or impropriator and his heirs] shall be entitled to and have the like tithes out of and upon the said common fields so to be inclosed, and the said allotments in right of common, as he is now entitled to out of and upon other the lands and hereditaments General powers within the said parish. AND it is hereby further agreed, that for

of commis

sioners.

To determine

disputes.

the better carrying the said intended act and the purposes thereof into execution, and for the more speedy cultivation and improvement of the said commons and waste lands, the said commissioners shall be invested with full and sufficient powers and authorities to examine and finally settle and determine all disputes and differences which may arise, as well between any or either of the parties so interested as aforesaid, relative to their respective commonable and other rights in, upon, or in respect of the said commons or waste lands, as also between lessors and landlords, and their respective tenants, lessees, or occupiers, relative to the fencing and improving the allotments to be made in pursuance of the said act; so nevertheless, that no such lessee or occupier be compellable or required to pay more than per cent. per annum, for the money which may be expended by his lessor or landlord in fencing or im

(6) After the allotments to the lord and the rector, the residue of the waste is divided amongst such of the tenants or proprietors as possess rights of common appendent or appurtinent to their messuages, &c., and if two rights of common in the wastes of two manors appertain to the same tenant, the proprietor will have a right to an allotment on the inclosure of each waste; Hollinshead v. Walton, 7 East. 485, and see Barwick v. Matthews, 1 Marsh. 50. 5 Taunt. 365.

ment.

Expenses of the

proving the same. AND it is further agreed, that the expense to AGREEMENTS be incurred in obtaining the said act, as also subsequent expenses Act of Parliaoccasioned in carrying the same into execution shall be sustained and paid by the said (lord and tenants) and other the several freeholders, and copyholders, and persons interested in the said com- act. mons and waste lands, in proportion to the value of the allotments which shall have been made to them respectively, to be ascertained by the said commissioners. AND it is further agreed, that all persons who Tenants for life shall be tenants for life only of the said inclosed commons or waste, may mortgage. or of lands, or hereditaments, allotted in respect thereof, shall, by the said act, be authorized and empowered, under the direction of the of said commissioners, to convey their respective allotments by way mortgage for any term or number of years, for raising so much money as may be requisite to defray their respective shares, and portions of the expenses which shall be incurred in the executing the said act; so nevertheless, that the money so to be raised do not exceed shillings per acre on their respective allotments, and that the same be payable and paid to the said commissioners, or as they shall direct, for the purposes of the said act. AND it is further agreed, that in the said act there shall be inserted all such usual and other proper clauses and provisions for carrying these presents and the said act into execution, according to the intent and meaning of the parties hereto (7); provided only, that nothing herein or in the said act to be contained, shall prejudice or be construed to prejudice the right of the said (lord) in or to the seignory, royalties, fisheries, customs, services, or other his manorial rights, within the said parish, save only as to his rights of common and of soil therein. And further that there shall be a clause in the said act saving to the lord of the said manor, all such manorial and other rights save as aforesaid (8). AND it is hereby further agreed, that the Allotments to said act shall provide and declare that all allotments to be made in lieu or in respect of the said commons and waste lands shall be deemed to be of the same tenure (9) and subject to the same incidents, and that

All proper

clauses to be in

serted.

be of former tenure, &c.

p.

(7) See the usual clauses in acts for enclosures, post, Rider A. 8. (8) Great care is to be taken, in framing this saving clause, in order to reserve every thing in particular intended to be saved; see the form of an INCLOSURE ACT, post, "PARLIAMENTARY PROCEEDINGS;" and see

Townley v. Gibson, 2 Durnf. and East. 701.

(9) Wastes which are inclosed, although of a copyhold manor, will by the inclosure become freehold, unless it be otherwise declared. See Revell v. Joddrell, 2 Durnf. and E. 415. Townley v., Gibson, Ib. 701. Doe dem. Lowes v. Davidson, 2 Maul. and Selw. 176.