No. LVI. Good will (Business). to accept lease. the sd arbitrators. And also that he the sd I. N. W. shall and will accept and take a lease of the sd dwelling-house shop and preses upon the terms afd and at his own expence exte the lease and a counterpart thof in which sd lease shall be contd all usual and proper covenants and partlarly a covt for paymt of rent as hinbefe mentd. And shall and will on the day of day of AGREEMENTS TO GUARANTEE. 1. Guarantee must be in Writing. 3. Representation of Character. Guarantee must be in writing. Exceptions to the rule. 2. Consideration must appear. SECT. 1. By the 4th section of the Statute of Frauds an agreement to pay the debt of another must, in order to give a cause of action, be in writing, Saunders v. Wakefield, 4 B. & A. 595; but if a party actually make payments for another, a responsibility may be inferred from the circumstances, without any promise in writing, Shaw v. Woodcock, 7 B. & C. 73; and if a party admits a binding guarantee by paying money into court, on a count charging him with it, it will To Guarantee. not be necessary to prove a written promise, Middleton v. Brewer, 1 Peake, 15. 2. The writing must contain the consideration for the promise as Consideration well as the promise itself, Saunders v. Wakefield, ub. sup.; therefore must appear. a promise to pay for goods to be supplied in future is good, because the supplying the goods is the consideration; but a promise to pay for goods already furnished is bad for want of such consideration, Wood v. Benson, 2 Cr. & J. 94; S. C. 2 Tyrw. 74; unless it be stated that the thing done in favour of a third party has been done at the guarantor's request, Payne v. Wilson, 7 B. & C. 423; see further, Dig. p. ii. tit. FRAUDS (STATUTE OF). of character. 3. By the 9 G. 4, c. 14, s. 6, representations relating to the conduct, Representations credit, ability &c. of another, which are in the nature of guarantees, must be in writing, in order to sustain an action against the party making the representation, see Dig. p. iii. tit. LIMITATIONS. 4. A guarantee will require a stamp or otherwise, according as a Stamp. stamp is required for the principal contract or otherwise, Warrington v. Furbor, 8 E. 242; Watkins v. Vince, 2 Stark. 368; but representations as to a person's credit are expressly exempted by the 9 G. 4, c. 14, from all stamp duty. No. LVII. Agreement to guarantee the Payment of Goods furnished to a third Person. upon In consideration of your agreeing to supply (a) my son with goods in the way of his trade as a months' credit, I hereby promise to be answerable for the amount at the end of that period, or at any time afterwards, not exceeding the sum of £ within one calendar month after demand (b). (a) If the promise be for goods already supplied, it will be necessary, in order to shew the consideration, to say, " of your having at my request supplied" &c., see ante, sect. 2. (6) If the guarantee be given to a mercantile firm, it will be necessary to add "And this promise shall not be affected by any change in the firm of your house," otherwise it will be inoperative in case there is a change in the firm, Strange v. Lee, 3 East, 481. No. LVII. Payment of (third Person). Inclosures under statute or by agreement. AGREEMENTS FOR AN INCLOSURE. 1. Inclosures under Statute or by Agreement. 2. Acts of Commissioners. 4. What may be a Fence. 6. Allotments to Lord. 7. Allotments to Copyholders. 8. Tenure of Allotments. 10. Notice of Appeal. SECT. 1. By the 29 G. 2, c. 36, amended by the 31 G. 2, c. 41, lords of manors and tenants are empowered, with the assent of the major part in number and value of the owners of wastes and commons, and also of the owners of tenements to which the right of common belongs, to inclose for the growth of timber all or any part of such wastes, for such time and on such conditions as may be agreed on. Inclosures for the general purposes of cultivation might also be made by agreement between the proprietors of wastes and commons and with the consent of the lord of the manor; but as such agreements were binding only on the parties themselves, it was usual to apply for an Act of Parliament, or to obtain a decree of the Court of 41 G. 3, c. 109. Chancery, by way of confirming the several covenants. The 41 G. 3, c. 109, commonly called "The Inclosure Act," contains most of the provisions usually inserted in particular Inclosure Acts. The 1 & 2 G. 4, c. 23, is an amendment of the latter Act; and for facilitating inclosures by the agreement of the parties, the 6 & 7 W. 4, c. 115, enacts, that two-thirds of the parties interested in any open or common fields may enter into an agreement in writing to inclose and allot the same by the means of commissioners. No agreement to be binding unless a public meeting be previously held; and (by ss. 11, 12) four-fifths of the proprietors are empowered to adopt any plan or admeasurement previously made, and also to lay down rules and regulations for the guidance of commissioners. By (s. 40) seven-eighths of the proprietors are empowered to enter into an agreement for inclosing such lands without the help of commissioners, provided a schedule of the lands proposed to be inclosed be deposited with the clerk of the peace, and notice thereof be fixed on the church door, see further, Dig. p. ii. tit. COMMONS. 1 & 2 G. 4, c. 23. 6 & 7 W. 4, c. 115. Acts of commissioners. 2. Where three commissioners are appointed to transact the business of the inclosure, and one of them dies, any act done by the two others before the appointment of a successor has been held to be invalid, Nicholson v. Middleton, 3 B. & B. 214. 3. Where commissioners under an Inclosure Act omitted to notice a private way, it was held to be extinguished under the general Act, the 41 G. 3, c. 109, s. 1; White v. Reeves, 2 B. Moore, 23. But in the case of a towing path near a river, not noticed by the commissioners, it was held not to be within their jurisdiction, since nothing could be substituted for it, as in the case of any road or way, Simpson v. Scales, 2 B. & P. 496. For an Inclosure. Extinguishment of roads. 4. A ditch is held to be a sufficient fence under the 41 G. 3, Ellis What may be a v. Arnison, 1 B. & C. 70; 2 Dow. & Ry. 161. fence. 5. Where, in an allotment in lieu of the right of common and of Saving clause. the soil, there is the usual saving clause, reserving to the lord all seignories incident to the manor, rents, services and other loyalties, this will not extend to a mine, unless it be reserved in express terms, a mine being considered a part of the soil, Townley v. Gibson, 2 T. R. 701. lord. 6. The lord of the manor is intitled to an allotment in respect of Allotments to his demesnes, besides his allotment as lord, Arundel v. Falmouth, 2 M. & S. 440. 7. When two rights of common in the wastes of two manors apper- Allotments to tain to the same tenant, a copyholder, he will be intitled to an allot- copyholders. ment on the inclosure of each waste, whether the manor be held under the same or different lords, Hollingshead v. Walton, 7 E. 485; Barwick v. Matthews, 5 Taunt. 365; S. C. 1 Marsh. 50. 8. An inclosure was held to have the effect of making copyhold Tenure of the allotments into freehold, unless otherwise expressly directed in the allotments. Act. A copyhold must be time out of mind, and cannot be created in the present day, except by Act of Parliament, Revell v. Joddrell, 2 T. R. 415. But now by the 6 & 7 W. 4, c. 115, s. 36, allotments are to be of the same tenure as the lands in respect of which they are made. 9. By the 41 G. 3, c. 109, s. 35, the award of the commissioners Right of appeal. is made to be binding upon all parties interested, unless there be any provision to the contrary in any Inclosure Act. The 1 & 2 G. 4, c. 23, s. 3, provides, that the right of appeal to the award is not to be taken away. The 6 & 7 W. 4, c. 115, s. 53, gives a general right of appeal for any thing done under this Act, or the 41 G. 3, c. 109, except where they are declared to be final and conclusive. [As to awards, see further AWARD.] 10. In an Inclosure Act it ought to be provided that notice should Notice of apbe given to the parties interested, Rex v. Just. Lanc. 1 B. & A. 630. peal. There being no provision in the general Act except for notice to the commissioners, although the 6 & 7 W. 4, c. 115, s. 53, provides for For an Inclosure. such notices, it is proper to insert it in the agreement, see further Dig. p. ii. tit. COMMONS. No. LVIII. Recital of agreement. Agreement. No. LVIII. Agreement between Proprietors of Waste and Common Lands, by Consent of the Lord of the Manor, to divide and inclose the same. (Variations where an Act of Parliament is to be applied for.) Articles of &c. (see No. XLVI.) between Sir W. B. lord of the manor of H. in the parish of &c. of the first pt the Rev. I. H. vicar of the sd parish of the second pt and A. B. C. &c. the sevl owners and proprietors of the common lds in the sd parish of the third pt Whas at a meeting held at of day of 18 day on the pursuant to public notice (a) given on the last past it was agreed by the persons there present being in number and value four fifth parts (b) of the parties interested in the common fields lying in the parish of that the same should be inclosed and allotted in manner hereinafter mentioned. Now these Presents witness That (c) a division and inclosure shall be made by metes and bounds &c. of the sd open or common fields arable meadow and pasture lands and shall be allotted and assigned to and among the sevl pties interested therein by the commrs hnafter named in proportion to their sevl rights and ints the same to be taken in lieu and full satisfaction thereof (d) and the sd (Owners) being (a) As to the necessity of the notice, see sect. 1. (b) As to the number of consentients, see sect. 1. (c) If it be so agreed, then say, "That application shall forthwith (or in the next session') be made to Parliament for an Act to appoint and empower commrs to inclose divide and allot the sd open or common fields arable pasture or meadow lds to and among the sevl psns interested thin according to their respive shares rights and ints in manner following.” (d) If it be agreed that the inclosure shall be made according to a previous admeasurement (see sect. 1, and 6 & 7 W. 4, c. 115, s. 11), then add, "according to the admeasurement valuation maps and plans made in the year 18 ." If any rules and regulations are agreed upon (see 6 & 7 W. 4, c. 115, s. 12), then say, "according to the rules and regulations agreed to at this present meeting." If the inclosure is to be made without the help of commissioners, then omit the words "by the commrs hnafter named," and say, "according to the schedule agreed to and adopted by the parties here present." |