8. 2.

$ 3.

s. 4.

ascertain the mears and bounds, in order to have fences made as aforesaid, he shall be compellable by bill in equity, or commission of perambulation, to ascertain such mears; and such neighbouring proprietors, &c., shall join and be at equal expense in making and preserving, scouring and repairing such ditches, trenches, drains, or fences as aforesaid, with such proprietor, &c., requiring the same: And if such neighbouring proprietor, &c., refuse, or for one year neglect so to do, then the proprietor, &c., so requiring the same, may make such ditches, &c., and the tenant or occupier of such neighbouring lands who shall have so refused or neglected to make such ditches, &c. shall pay to the person who shall make the same one moiety of what he shall reasonably, bona fide, and without fraud or malice, lay out in making such ditches, &c., and in planting such quicksets, and weeding them, and securing the same, together with legal interest, to be recovered by action of debt in any of his majesty's courts in Ireland, or if the sum be under £10, then by civil bill to be brought in the county where such fences shall be made, with treble costs. But by s. 2, there shall not be demanded above 1s. 6d. per perch of such stone or other wall, or above 1s. per perch for such ditch, &c,, as aforesaid; and if, after such ditches, &c., are made, the person on whose lands the same be, and who ought to keep up the same, do not weed such quickset, and mend, preserve, and keep up such fences, or his part thereof, as he ought to do, such person shall have no remedy for any involuntary trespass committed by the cattle of the proprietor, occupier or tenant, of the neighbouring lands, on his lands, occasioned by such default of his. By s. 3, every person compellable by this act to ditch and fence, or to pay for the same, who shall not have an estate for life, or 11 years, in his lands, at the time he shall be requested to fence as aforesaid, is empowered to deduct out of his rent what he shall lay out, expend, or pay; first proving on oath before the justices of peace of the county where such lands lie, at their general quarter sessions, what be so laid out, &c. And by s. 4. no tenant or farmer for life, or years, shall be obliged

obliged to ditch or fence above one-fifth part of his lands or holdings in any one year.

crooked, they may be made

right, and

land exchanged

s. 5.

And this act provides (s. 5.) that where the bounds and Where mears mears between lands shall run in crooked lines, or through places inconvenient for making such ditches or fences as aforesaid, the persons whose lands are so contiguous, and for the purpose. to be bounded by a fence, may by consent of the tenant of the lands, and the immediate proprietor in reversion expectant on the lease then in being, appearing by writing under hand and seal, attested by 3 witnesses, make the boundaries in straight lines in more convenient places, and exchange the lands on one side of such straight line or fence, for the lands of equal value on the other side of such right lines; so as such reversioner be seised of the lands which he shall so grant in exchange at the least for the term of his own life, with remainder to his sons in tail male; and if the lands left on one side of such straight line shall be of greater value than the lands taken in on the other side, then the proprietor to whom the greater proportion shall fall, shall be enabled to charge the same with a perpetual rent-charge, sufficient to countervail such difference; which rent charge shall go to such person, for such estate, and to the same uses, as the land so charged ought to have gone; and the lands received in exchange shall go to such person, and for such estate, and for the same uses as the lands given in exchange ought to have gone, in case no such exchange had been made. But by s. 6. no house, garden, orchard, wood, or grove, shall be included in such lands so to be exchanged. And by s. 7. all such exchanges or agreements shall be binding to all persons, notwithstanding any devise, settlement, or limitation of use provided the lands so exchanged do not exceed 2 acres, plantation measure, in every 100 perches of such line or fence; each perch containing 21 fet. By By s. 8. in case any person shall refuse to fence or plant according to this act, so as in default of so doing the proprietor, possessor, or tenant of the adjoining land shall fence and ditch between his land or holding and the neighbouring lands, &c., the person so ditching, &c., shall

s. 7.

s. 8.

8. 9.

s. 10.

13.

s. 11.

Exceptions.

s. 13.

3. 14.

and may ascertain and set out an equal proportion of such fence, which the tenant or occupier of the adjoining lands shall be obliged to keep in repair as his part of said fence, and to weed and preserve the quicksets if any planted thereon. Provided (s. 9.) that nothing herein shall avoid any covenants or contracts made between landlord and tenant for fencing, ditching, draining, and enclosing lands. And by s. 10. where landlords are obliged to allow their tenants for ditching or fencing between their holdings and their neighbours, such tenants shall, at the time of such allowance made, give security by their bonds, of the penalty of the whole sum so allowed, to such landlords, conditioned for the due and effectual weeding of such quicksets planted, and the preserving and keeping up the said ditches and fences, for which they shall be so allowed, during their respective terms in said lands, in good tenantable order and condition; and in case of refusal to give such bond, such tenant shall not have the benefit of such allowance. And by s. 12. no proprietor or lessor shall be obliged to pay or allow in any one year for ditching or fencing in pursuance of this ac, more than the 20th part of the annual rent payable out of such land to such proprietor, &c.; and the tenant of such proprietor, &c., shall not be obliged to expend in any year, in making such fences, more than the 20th part of his rent payable to such proprietor, &c. But by s. 11. nothing in this act shail oblige any proprietor, occupier, or tenant, to fence or ditch between any lands, whereof the plantation acre shall not at the time, when request shall be made for the doing thereof, be worth, and which shall not really pay the landlord, 2. per annum above quit or crown rent. And by s. 13. no proprietor, tenant, or occupier shall be obliged, by virtue of this act, to fence in or enclose any land in any one park or enclosure, which shall not contain at least 10 acres plantation measure, with a ditch or fence of above 6 feet wide, and 5 feet deep; and the most usual ways and passages to and from intermixed lands, surrounded by other proprietors, shall be left open as formerly. And by s. 14. no mears between lands belonging to several

proprietors

c. 71. s. 8. Ir.

proprietors, enclosed or ditched by virtue of this act, No mears binding unless shall be binding or conclusive, unless the proprietors do agreement in agree to the same in writing, under their hands and seals, writing, &c. attested by 3 witnesses, before or after the time of such ditching, &c., or shall suffer the said mears so ditched and enclosed to stand for 5 years after the determination of such lease or leases as shall be then in being; and, in case of infancy, coverture, being beyond sea, or of insane memory, or where a remainder shall be claimed by any settlement or will, 5 years after attaining the age of 21 years, becoming discovert, returning from beyond sea, or becoming of sane memory, or from and after such remainder shall take place. The 40 Geo. 3. c. 71. 40 Geo. 3. s. 8. Ir. further provides, that if any proprietor, occupier or tenant of any lands, shall complain to any justice of Powers of justices of peace peace that the mears and fences between his lands and in respect to the lands next adjoining thereto are insufficient, it shall adjusting mears, be lawful for such justice to summon the proprietors, occupiers or tenants, of such adjoining lands, and to require them, with the person so complaining, to appoint arbitrators; and in case such arbitrators shall not agree, then such justice may appoint an umpire to ascertain the state of such mears and fences, and to make a division thereof where no division has been heretofore made; which arbitrators shall be sworn to do justice between the parties, to the best of their skill and judgment; (which oath such justice is to administer ;) and if such persons so appointed shall find that such fences are insufficient, they shall also estimate what sum will be necessary effectually to repair the same, and what proportion of such mears, &c., ought to be kept in repair by each party; and they shall certify the same to such justice, who, upon receipt of such certificate, may issue an order under his hand and seal to each party to repair such mears, &c., stating the proportion of expenses that each party is to be at in repairing the same, as also the proportion of such mears, &c., as each party is to keep in repair; and if either party shall refuse, or for 3 months neglect, to repair is proportion of such mears, &c., then it shall be lawful for the party who shall be willing so to do, to repair the whole

212

s. 9.

Persons neglecting to repair mears, to have

involuntary

tre pass.

S. 10.

*

whole of such mears, &c.; and the party so refusing or neglecting shall pay to the person who shall have repaired the same, such proportion of the expense as such arbitrators or umpire shall have certified to such justice that such person ought to have paid towards repairing the same; to be recovered by distress and sale of his goods, by warrant of such justice, or by civil bill, with double costs; provided that such sum does not exceed 20s. nor exceed the rate of 28. per perch, and that the same shall appear ́to have been bona fide expended, and to be a reasonable charge. And by s. 9. any person refusing or neglecting to repair such mears, &c., shall have no remedy for any involuntary trespass committed by the cattle of the prono remedy for prietor, occupier or tenant, of any neighbouring land, on his land occasioned by his default in keeping in repair such mears, &c.; and if the cattle of such person shall trespass on the neighbouring land, they shall be liable to pay treble trespass, and the arbitrator or umpire shall award accordingly. But by s. 10. every person compellible by this act to repair such mears, &c., or to pay for the same, who shall be only tenant at will or sufferance at the time he shall be so compelled, is empowered to deduct out of his rent what he shall have so laid out or paid, first proving on oath, before a justice of peace of the county where the lands lie, what he so laid out; provided such sum does not exceed what the arbitrators awarded that such person ought to pay for repairing the same but nothing herein shall avoid any covenant or contract between landlord and tenant for fencing, ditching, draining, or enclosing lands. By s. 11. it shall be lawful for the occupier of lands at either side of double ditches which divide farms and lands, to plant them with timber trees for their mutual benefit, and at their mutual expense; and if either party shall refuse to pay his proportion of the expense, having been demanded in writing so to do, it shall be lawful for the other party, in 12 months after such notice being served, to plant all such double ditches, and to convert to his use all such timber trees as shall be planted thereon, and registered pursuant to the statute. And, by s. 12. it shall be lawful for the party

3.11.

s.12.