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proprietors, enclosed or ditched by virtue of this act, No mears bind
ing unless shall be binding or conclusive, unless the proprietors do agreement in agree to the same in writing, under their liands and seals, writing, 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 shail 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.
c. 71. s. 8. Ir. s. 8. Ir. further provides, that if any proprietor, occupier or tenant of any lands, shall complain to any justice of Powers of jus
, tices 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 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 arbi. trators 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., ouglit 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 his proportion of such mears, &c., then it shall be lawful for the party who shall be willing so to do, to repair the 212
. . whole of such mears, &c.; audithe 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 sym does not exceed 20s. a por exceed the rate of 2s. per perch, and that the same shall appear
to have been bona fide expended, and to be a reasonable s. 9. charge. And by s. 9. any person refusing or neglecting
to repair such mears, &c., shall have no remedy for any ing torepair involuntary trespass committed by the cattle of the promears, to have no remedy for prietor, occupier or tenant, of any neighbouring land, on invuuntary his, land occasioned by his default in keeping in repair tie pass.
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 compel. lible 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 10 deduct out of his rent what he shail bave 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 lerein 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 bis proportion of the expense, having been demanded in writing $0 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 bis use all such timber
trees as shall be planted thereon, and registered pursuant s. 19, to the statute. And, by s. 12. it shall be lawful for the
party so planting to impound any beast caught trespass ing on any part of such double ditch, and recover damages as on other lands. By s. 13. this act shall not affect the rights of manors, where manor courts are held agreeable to charter. And by s. 14, any person may appeal from the determination of the justice, to the next sessi. ons of the peace for the county, &c., in which any distress shall be taken, who may affirm or reverse the order of such justice, with such costs as they shall think proper; which decision shall be final; and no-writ of certiorari or other process shall be allowed for removal of such proceedings. By s. 15. no magistrate shall take any fee for any thing done by virtue of this act. . ' : The 5 Geo. 2. c. 9. Ir. is also to be referred to thiş Partition of . head: This statute enacts, that where any person shall be bogs.
5 Geo. 2. c. 9. . sejsed or possessed of any lands contiguous or adjoining Ir. to any bog, moss, or lough, or to ground between the flux and reflux of the sea, and shall be desirous to settle the mears and bounds thereof, with the proprietors of the other lands adjoining to or on the other side of the same; such person may exhibit an English petition in Ch. or Exc. against the proprietors of the other parts of such bog, &c., or ground or lands adjoining to the same, desiring sucir mears, &c., to be ascertained; and upon proof by affi.. davit, of such proprietors, and the tenants in possession, being personally served with copies of such petition, 30 days before the time appointed for hearing the matter thereof, it shall be lawful for the court to issue a com- Commission fur mission to 7 or more commissioners, (for which commis-“ sion the like fees shall be paid as for a commission to examine witnesses,) empowering and requiring them, or any 5 or more of them, by examination of witnesses upon oath, (which they are empowered to administer) and by the verdict of a jury of 12 men, to be returned on the precept of such commissioners by the sheriff of the county in which such lands lie, or if they lie in 2 counties, then an equal moiety of such jury to be returned out of each of said counties by the several sheriff's thereof, to inquire of and ascertain the old mears and bounds of such bog, &c., if there be any such; but if no suchi mears appear, then to make, lay out, and ascertain such
reasonable mears, &c., between the petitioners and other proprietors in the petition mentioned, regard being had to the length of the profitable land adjoining to such bog, &c., as to them or the major part of them shall seem meet; and where a drain shall be necessary to carry off the water froin such bog, &c., the commiss oners, or the major part of them, shall lay out and ascertain the same, and the length, breadth, and depth of such drain, and likewise appoint what part or proportion thereof shall be made by the several proprietors, with regard to the benefit that each of them may receive thereby; and whaterer shall be done by virtue of such commission, the com
missioners, or the major part of them, shall return, under Return of com
their hands and seals into the court out of which such mission cono commission issued; whereupon such court shall make such firmed ur altered. order for confirming, altering, or amending such return,
or may set aside the same, and issue a new commission, as shall seem just; but if no complaint be made to such court against such return, within 30 days after filing thereof, in case the same shall be filed in term time, or in the next term after filing thereof, in case the same shall be filed in time of vacation, then such return shall stand and be confirmed; and such return confirmed, altered, or amended by the court, and any order thereupon made, shall be conclusive to all the parties to the said proceedings, and all persons de
riving any estate or interest in said lands, or any part 9. 2. thereof, from them or either of them. But by s. 2. not Jury impan.
less than 24 men shall be returned, out of which such nelled. jury may be taken; and all the parties may have their
lawful challenges to the persons so returned, as in trials of actions at law. By s. 3. if any of said proprietors,
after 3 months notice in writing given to him, shall neEz penses of making drains glect or refuse well and sufficiently to make his part of prorided for.
such drain, according to the order of such commissioners, then it shall be lawful for the other proprietors to make such drain, and then tosue such proprietor neglecting to make his part of such drain, by civil bill, for such sum as his proportion of such drain shall amount to. But by S. 4. no one proprietor shall be liable to pay more than
1s. 6d. for each perch, containing 21 feet in length, of such drain; or more than £10 in the whole towards making such drain in any one year. And by-s. 5. if any s. 5. proprietors, who shall make such drain, or against whom any sum shall be recovered on account thereof, happen to be only tenants for life or years, such tenants after the determination of their respective estates, and their executors, administrators, and assigns, shall hold such bog, &c., until they shall out of the yearly rents and profits thereof be paid the sums following, viz, if such proprietor at the time of filing the return on the commission be possessed of a term less than 7 years, then until he be paid all such sums as he shall have expended, or as have been recovered against him; but if he hath a term unexpired of 7 years, then until he receive 3-4ths of such sum ; but if at such time such proprietor be a tenant for one life, or by the curtesy, or in dower, or have a term of 14 years unexpired, then 2-3ds of such sum; but if he have a term for 2 lives, or for 21 years unexpired, then 1-4th of such sum; but if at such time he hath a term for 3 lives, or 31 years, unespired, or any greater estate or term, such proprietor shall have no payment or allowance on account of said drain, when such estate or term is determined.
The clause of the 7 Ann. c. 18. Eng. seems to be also partition of proper for this place, which provides, that if coparceners, adrousons.
* Ann. c. 18. joint-tenants, or tenants in common, be seised of any es- Eng. tate of inheritance in the advowson of any church or vi-1
C. 23. s. 6. Ir. carage, or other ecclesiastical promotion, and a partition is made between thein to present by turns, every one shall thereupon be taken and adjudged to be seised of his separate part of the advowson to present in his turn. And the i Geo. 2. c. 23. Ir. contains a clause (s. 6.) which is precisely similar.