41 G. 5. c. 109. like application in a summary way, be laid out by order of the said court in the purchase of other lands or hereditaments to be settled to the like uses; and until order can be made, such money may by order of the said court be laid out in some of the public funds or on government or real securities; and the dividends or interests arising therefrom shall, by order of the said court, be paid to such person or persons as would for the time being be entitled to the rents and profits of such lands, tenements, and hereditaments, so to be purchased, conveyed, and settled.

If such money be less than 2001. and up. wards of 201. it shall at the option of the per

son entitled to

the rents of the lands, be paid into the bank,

or to two trustees to be approved of by the commissioners, to be applied as before directed;

and if less than 201. it shall be applied to the

use of the person entitled to

22. Provided, that if any such money shall be less than 2001. and shall exceed 20l. then the same shall, at the option of the person or persons for the time entitled to the rents and profits of the lands or hereditaments so purchased, or of their guardian or committee in case of infancy or lunacy, to be signified in writing under their respective hands, be paid into the bank in the name of the said accountant general, and be placed to his account as aforesaid, in order to be applied in the manner before directed; or otherwise the same shall be paid at the like option to two trustees to be nominated by the person making such option, and approved of by the commissioner or commissioners, (such nomination and approbation to be signified in writing under the hands of the nominating and approving parties,) in order that such principal money and the dividends may be applied as hereinbefore directed so far as the case be applicable, without obtaining or being required to obtain the direction or approbation of the said court.

§ 23. Provided also, that where such money shall be less than 201. then the same shall be applied to the use of the person who would for the time being have been entitled to the rents and profits of the lands or hereditaments so purchased, in such manner the rents of the as the said commissioner or commissioners shall think fit, or in case of infancy or lunacy then to the guardians or committees, for the benefit of such persons so entitled respectively.

lands, as the commissioners shall think fit.

If any person

does not accept, inclose, and

ment as the commissioners

direct, they may

inclose, fence, and let it, and

§ 24. If any person to whom any allotment or allotments shall be made, or any guardian, husband, trustees, feoffees, committees, or attorney of any infant, feme covert, charity or charities, lunatic, fence his allot- idiot, person or persons beyond the seas, or otherwise incapable of acting respectively, or any tenant in tail, or for life, or trustee or trustees for any settlement, or any mortgagee or mortgagees, or other creditor in possession, shall neglect or refuse to accept, inclose, and fence their allotment or allotments within such time or times as such commissioner or commissioners by any writing as aforesaid, or by his or their award shall order, it shall be lawful for such commissioner or commissioners to cause such allotment or allotments to be inclosed and fenced, and to let the same to any person or persons he or they may think proper, and to receive the rents and profits thereof until the expenses attending the inclosure and fencing thereof are paid and satisfied, or to charge such expenses upon the proprietor or proprietors of the same allotment or allotments; and by any such writing as aforesaid, or by his or their said award, to appoint to whom, and at what time or times the same shall be paid, subject to the same mode, and with the like powers of recovery thereof, as may be provided respecting the other expenses of passing any such act, and car

receive the rents until the expenses are satisfied, or they may charge them upon the proprietor.

rying the same into execution, or otherwise directed by any 41 G. 3. c. 109.

such act.

after fencing of allotments, fences may be

§ 25. The several proprietors of the allotments to be made Within 7 years in pursuance of any such act, their agents or workmen, may at any seasonable time or times within the of space seven years next after the fencing of any allotment, set up posts and rails or erected on the other dead fences, on the outside of the ditches bounding their outside of the respective allotments, not exceeding three feet from such ditches, ditches, and the for the preservation of their quickset hedges, and at any seasonable time before the expiration of the said term may carry away the materials of such outside fences when they shall think proprietors.

proper.

materials car

ried

away by the

hedges standing

when any act is passed, shall be

destroyed till

the execution
of the award,
without consent

sioners, and if

26. And no fences or hedges which at the time of the pass- No fences or ing of any such act shall be standing or growing in or upon any of the lands directed to be divided and inclosed shall be cut down or destroyed by the proprictors thereof, after the passing of such act, until the execution of the award, without the consent of such commissioner or commissioners first obtained in writing; and if any such shall be assigned or approved by such commissioner or commissioners as a boundary fence, or as a subdivision fence for any of the allotments to be made in pursuance of such act, all such shall be left uncut for the benefit of the persons to whom such allotments shall belong; and they shall make such compensation in money to the former proprietors thereof, as such commissioner or commissioners shall, by writing under their hands, in that behalf appoint, subject to the same mode and with the like powers of recovery thereof as may in such act be provided respecting the other expenses of passing any such act, and carrying the same into execution.

shall

of the commisassigned by them as boundary or division fences, they

shall be left uncut, the per

sons to whom the allotments shall belong making compensation to the

former owners. Where the

any mound, &c.

§ 27. Provided, that no proprietors whose allotments or shares upon any such inclosure be situate next and adjoining to any common fields or inclosed grounds, the boundary of which boundary of shall be fenced by any mound, fence, brook, or rivulet, shall be any common compelled to make any hedges, ditches, or fences, next adjoin- fields or inclosing to any such common fields or inclosed grounds, for inclosing ed grounds shall be fenced by such their allotments or shares; but that the whole mound, fence, brook or rivulet, or other sufficient fences which divide any such the proprietors common fields or inclosed grounds from such allotments shall for of the adjoinever be and remain a boundary fence for the purpose of such di- ing allotments vision, and shall from time to time be maintained, scoured, and shall not be repaired by the respective proprietors thereof, as before the passcompelled to ing of this act, or in such other manner as such commissioner, &c. shall direct: Provided nevertheless, that in case it shall happen that some of the proprietors shall have a greater proportion of fences to make and maintain upon any of the lands directed to be divided and inclosed than in the judgment of such commissioner, &c. the allotments of such proprietors ought to be charged with, the respective it shall be lawful for such commissioner, &c. where he or they proprietors; judge it proper, to ascertain and appoint such sum of money to the expenses of be paid to every such proprietor towards making and maintaining which the comsuch fences, by such other of the proprietors who may less proportion of fencing, according to the value and quantity of the lands to be allotted to them, and to grant such other relief in respect thereof out of the money to be raised for defraying the expenses of carrying such act into execution, as he or they shall

have a

fence them next such common fields and inclosed grounds, but such boun

daries shall be maintained by

missioners may apportion.

41 G. 3. c. 109. think reasonable, and in case any such money shall be so directed to be raised, in order that the said boundary fences may be brought as near as may be to a just and equal proportion.

Any person destroying or damaging any

fence, &c. put

up under the
authority of
act, shall forfeit

any

51., and the proprietor of the

lands, &c. may give evidence.

If it shall be

act, that the expenses of obtaining and carrying it into execution, shall be paid by the proprietors, and they neglect so to do, the same may be levied

by distress, or the commission

er may take possession of the allotments,

rents, till

satisfied.

28. In case any person shall wilfully and unlawfully break down, destroy, carry away, or damage any fence, stile, post, rail, gate, bridge, or tunnel, which may be put up under the authority and for the purposes of any such act, every person so of fending and being thereof convicted before any justice for the county in which the grounds to be inclosed shall be situate, on confession or on proof by oath of one credible witness, shall for every such offence forfeit not exceeding 5l.; and every person shall be allowed to give evidence of such offence notwithstanding he may be a proprietor or occupier of lands within or an inhabitant of such parish, and notwithstanding he may be the owner of any such fence, stile, post, rail, gate, bridge, or tunnel; to be recovered as hereinafter provided.

§ 29. And whereas it may often be provided by such act that provided by any the expenses of obtaining the same, and also the expenses of carrying the same into execution, shall be paid in proportion by the proprietors of lands or grounds to whom any allotments shall be made, it is enacted, that in such case, when any such person, except the person thereby exempted from payment of any such expenses, shall refuse or neglect to pay their proportion thereof, or to pay the expenses attending the inclosing and fencing of any such allotments as upon the neglect or refusal of the proprietors shall be inclosed and fenced by such commissioner, &c. as hereinafter mentioned, at the respective days and times to be appointed for payment thereof; it shall be lawful for such commissioner, &c. by any warrant under their hands and seals directed to any person or persons whomsoever, to cause the said costs, charges, and receive the and expenses and sums of money respectively to be levied by distress and sale of the goods and chattels of the person or persons so making default in payment as aforesaid, his, her, or their husbands, guardians, trustees, committees, or attornies, wheresoever the same shall be found, rendering the overplus (if any) on demand, to the owner of such goods, the reasonable charges of such warrant, distress, and sale being first deducted, together with the interest after the rate of 51. per cent. to be computed on such share or proportion from the time the same shall be directed to be paid by such commissioner, &c. as aforesaid; or otherwise it shall be lawful for such commissioner, &c. or any person authorised by them, to enter upon and take possession of the premises so to be allotted, to such person refusing or neglecting to pay as aforesaid, and to take the rents and profits thereof, until thereby, therewith, or otherwise, the share or proportion and the said costs and charges so ordered and directed to be paid by such person as aforesaid, and all interest thereon to be computed from the time the same shall by such commissioner, &c. be directed to be paid as aforesaid, and also all costs, charges, and expenses occasioned by such entry upon and perception of the rents and profits of the said premises shall be fully paid.

Husbands, &c. may charge al

lotments with

such sums as the

30. In such case, it shall be lawful for the husbands, guardians, trustees, committees, or attornies of any of the owners or proprietors of such allotment or exchanged lands, being under cover

liable to a share thereof, or enabled to charge

the lands with the same advance the mo

ney, the commissioners may mortgage the

lands to them for reimburse

ment.

ture, minors, lunaties, beyond the seas, or under any other dis- 41 G. 3. c. 109. ability, and for any of the said owners or proprietors being tenants commissioners in tail, or for life or lives, or years determinable on a life or lives, shall adjudge or on any other contingency, or otherwise interested as aforesaid, necessary to de(except the rector or vicar of such parish) to charge such allot- fray the aforesaid expenses; ments or exchanged lands and premises with such sum or sums of and if persons money as such commissioner or commissioners shall by his or their in possession award, or by writing under his or their hands, either before or after the execution of such award, adjudge necessary to pay and defray the said respective shares of the charges and expenses incident to the obtaining of such act, and carrying the same into execution, and of charging the said lands as aforesaid, so that the same shall not exceed 51. for every acre of such allotments or exchanged lands, and to grant, mortgage, surrender, lease, or demise, or otherwise subject the lands, tenements, and hereditaments so to be charged, unto such persons who shall advance and lend the same respectively, their executors, administrators, or assigns, for any term or number of years; or in case any person in possession, who shall be liable to and charged with a share of the expenses as aforesaid, or enabled by this or any such act to charge such lands with the same, shall choose to advance and discharge. such sum or sums of money, then it shall be lawful for the said commissioner, &c. by any deed or writing under their hands and seals, to be attested by two credible witnesses, in like manner to grant, mortgage, surrender, lease, demise, or otherwise subject the said lands, tenements, and hereditaments to such person or persons respectively discharging the same, their executors, administrators, and assigns, for any term of years, for the payment of such money so advanced by them, with interest, to commence on the termination of his, her or their right in the premises; so that every such grant, mortgage, surrender, lease, or demise be made with a proviso on condition to cease, or with an express trust to be surrendered or re-assigned, when such sum or sums thereby to be secured shall be fully paid; and also with a covenant to pay and keep down the interest, so that no person or persons afterwards becoming possessed of or entitled to any such lands, tenements, or hereditaments shall be liable to pay any further arrear of interest than for six calendar months preceding the time when the title to such possession shall have commenced; and that every such charge, &c. shall be effectual in the law for the purposes thereby intended.

Commissioners

from allotments for charity or school lands,

what shall be deemed equal to the propor

31. Whereas in such cases as aforesaid, where provision may be made in any such act for charging the expenses of passing may deduct such act, or of executing the powers thereof, or of fencing the respective allotments on the several proprietors thereof, it may be more convenient for the feoffees or trustees of any charity lands or school lands to have lands deducted from the respective allotments to be made for such charity lands or school lands, for paying the proportionable share in respect of such allotments of such expenses respectively, than to raise money on mortgage for those of passing and purposes, it is therefore enacted, that any such commissioner, &c. executing any if they shall judge it expedient, may deduct from the respective act, and allot allotments to be made to such feoffees or trustees, so much land the same to as shall in the judgment of such commissioner, &c. be equal in such persons as value to their respective proportions of the said expenses, and may to pay it.

tionable share of the expenses

will undertake

41 G. 5. c. 109. allot, assign, and award the same to such person or persons as such commissioner, &c. shall think proper, and who will undertake to defray, and shall defray, all such expenses.

act that the expenses of obtaining and carrying it into execution shall be paid by sale of part of the

lands, the commissioners

shall set out and sell such part as they think will raise a sufficient purchasers shall immediately deposit a part of the purchase money, which shall be forfeit ed; if the remainder be not duly paid.

sum, and the

If it shall be § 32. And in case it shall be provided by any such act that the provided by any expenses thereof shall be paid by sale of any part of the land so to be inclosed, the said commissioner, &c. shall mark and set out such part or parts of the said waste or commonable lands as in his or their opinion will by sale thereof raise a sum sufficient to pay all such charges and expenses as may by any such act be directed to be paid out of the same; and the said commissioner, &c. shall sell such part or parts of the said lands to any person for the best price that can be gotten for the same, by private contract, or by public auction or auctions, of which six weeks' previous notice shall be given, in such manner as shall by any such act be directed with respect to the other notices thereby required; and the person or persons so purchasing the same shall immediately pay (by way of deposit) into the hands of the said commissioner, &c., or such person or persons as they shall direct and appoint, onetenth part of the purchase money, and pay the remainder thereof within three calendar months next after, or at such other time as the said commissioner, &c. shall appoint, and in default thereof the money so deposited shall be forfeited, and shall be applied in carrying such act into exccution; and the said allotment or allotments for which the whole of such purchase money shall not have been so paid, or for which there shall be no bidding at such auction, shall be again put up to sale and sold as aforesaid for the best price or prices that can be gotten for the same, or be sold by the said commissioner, &c. by private contract, for not less than the remaining nine-tenths of the price or respective prices for which the same was or were respectively before sold, or the amount of one bidding above the sum or respective sums at which the same was or were respectively put up in the said former auction; and every allotment for which the full purchase money shall be paid shall immediately thereupon be absolutely discharged from all common and other right thereon or therein, and be vested in fee-simple in, and be inclosed and thenceforth held in severalty by such purchasers thereof respectively, as their absolute property, and shall be allotted accordingly by the said commissioner, &c.; and the said purchase money shall be applied in defraying such expenses as may be in any such act directed to be discharged by the sale of

Commissioners may summon

witnesses, who

shall be subject

to penalty for neglect.

such land.

33. It shall be lawful for the said commissioner, &c. from time to time, as he or they shall see occasion, by any writing under their hand, to summon any person to appear before them at any time and place in such writing to be appointed, to testify the truth touching the matter in dispute between any proprietors or interested persons, or otherwise relating to the execution of the powers given by this or any such act, and to cause a copy of such writing to be served on such person, or to be left at his usual or last place of abode; and every person so summoned, who shall not appear before the said commissioner, &c. pursuant to such summons (without assigning some reasonable excuse for not appearing) or appearing shall refuse to be examined on oath or affirmation, (such person having been paid or tendered the reasonable charges of attendance,) and being thereof convicted before