No. XXIV. Canal Act. quantities of water as shall be sufficient to supply the said engine with water for the sole purpose of condensing the steam used for working any such engines as aforesaid: Provided always, that the proprietor of every such engine shall return to the said canal, every day that he uses the engine, a quantity of water, on the same level on which it is taken, equal to the quantity so used, so that no obstruction arise therefrom to the said navigation: Provided also, that the water so taken shall be applied to the working the said engine, and to no other purpose whatever, and every person laying any pipe in the said canal for such purpose is hereby required to make good any damage done to the bank thereof, and all other damages occasioned by laying the said pipe; and if any dispute arise between the said Company and such person desirous of taking the water, the same shall be settled as in manner by this Act directed to be settled. Sect. 95. Every lord of a manor through which the said Saving of rights intended canal is to pass shall be intitled to the several and exclusive fishery in so much of such canal, reservoir, and feeder, as passes through any waste or common of such manor; and the owner of grounds adjoining to the said canal shall be intitled to the like right of fishery, so as by the use and exercise of any such right of fishery as aforesaid the said canal, reservoirs, and other works thereof, shall not be prejudiced or obstructed, and so as the said Company, their servants, &c. shall not be liable to any penalty for taking or destroying any fish by reason of the necessary letting off the water out of the same for the purpose of any repairs to be made in or about the same: Provided always, that if any person on board any vessel carry with him. any fishing net, gun, or other instrument for taking fish or game, he shall forfeit any sum not exceeding 51. to lords of manors. 96. Where any damages are authorized to be recovered, in Damages in addition to any penalties for any offence in this Act mentioned, case of dispute to be settled by the amount of such damages shall be settled by any justice be- justices. fore whom the offender is convicted; and whenever any sums are awarded by any justice to be paid by way of compensation for any materials or damage done, the same may be levied by distress and sale. Sect. 97. In all cases in which by this Act any penalty or Recovery of penalties. forfeiture is made recoverable by information before any justice Canal Act. No. XXIV. of the peace, it shall be lawful for him to summon the party complained against, and on such summons to hear and determine the matter of complaint, and to convict the offender and adjudge him to pay the penalty, and proceed to recover the same, although no information in writing has been exhibited before him; and all such proceedings by summons without information shall be as good and effectual to all intents and purposes as if an information in writing had been exhibited: Provided always, that, except in the cases herein before mentioned, all complaints and informations for offences against this Act may be made before one justice of the peace for the county, liberty or place wherein the offence is committed; and such justice is hereby authorized to take cognizance thereof, and summon the party complained of, and upon complaint upon oath [or affirmation], to issue his warrant for the apprehension of such person, and upon his appearance or otherwise to make such determination as appears to him just; and upon conviction may issue his warrant under his hand and seal for levying the penalty or forfeiture, in case the same be not immediately paid, by distress and sale; and it shall be lawful for such justice to detain the person so convicted in safe custody until the return of such distress, unless he give sufficient security; and if, upon the return of the warrant, it appears that there is no sufficient distress, or if it otherwise appear to the justice that the offender has not sufficient goods whereon such penalty, together with the costs and charges, may be levied, such justice shall not be required to issue such warrant of distress, but he is hereby authorized by warrant under his hand and seal to commit such offender for any term not exceeding three months, unless such penalty &c. be sooner paid; and all such penalties, when recovered, shall, when the application is not otherwise directed, be paid into the hands of the treasurer of the said Company, and shall be applied and disposed of towards the expences of the said navigation. Power to apprehend offenders. Sect. 98. And it shall be lawful for any person, seeing any offence committed against this Act, to apprehend offender and convey him or cause him to be conveyed before a justice of the peace: Provided always, that it shall be lawful for said Company to give informer any part of the penalties. Canal Act. Distress not un Sect. 99. Where any distress is made by virtue of this Act, No. XXIV. the distress itself shall not be deemed unlawful, nor the party making the same a trespasser, on account of any defect or want lawful on acof form in the information, summons or other proceeding relating count of irregu larity. thereto; but the person aggrieved by such irregularity may recover special damages in an action on the case; and no proceedings shall be quashed for want of form, or be removed by certiorari or otherwise into any of her Majesty's courts at Westminster. tendance of wit nesses, &c. Sect. 100. If any person be summoned as a witness to attend Compelling at before any justice touching any matter of fact in any information contained, and he, without any reasonable excuse, refuse or neglect to attend [having been paid or tendered his expences], or appearing, refuse to make oath [or, if a Quaker, to make his affirmation] and to give evidence before such justice, he shall forfeit any sum not exceeding 51.; and in case of any suit or Officers of litigation, the officers and servants of the said Company shall company to be be deemed competent witnesses; and in all actions and proceedings for any claim or compensation under this Act, it shall leases to witbe lawful for the clerk of the said Company, with the approbation nesses. of the aforesaid committee, to execute and deliver any release to any person for the purpose of discharging him, so that he may be produced as a witness, and to do with the like consent any other act, matter or thing, in any such actions. Sect. 101. If any person, in any examination to be taken upon oath by virtue of this Act, wilfully and corruptly give false evidence, he shall upon conviction thereof be subject to the pains and penalties of perjury. Sect. 102. Any person or body politic, thinking himself aggrieved by any order or judgment made in pursuance of any rule or bye-law of the said Company, or by any determination of any justice, may, within three calendar months after such order, complain to the justices at the next quarter sessions, having first given ten clear days' notice in writing of such appeal, and of the nature and matter thereof, and forthwith after such notice entering into a recognizance, with two sufficient sureties, to try such appeal; and the said justices at such quarter sessions are hereby authorized to hear and determine such appeal summarily, and may mitigate any fines, penalties or for competent wit nesses. Granting re Canal Act. No. XXIV. feitures, and may order any sum of money to be returned which has been levied, and award such costs to either party as they think proper. Limitation of actions. Canal to be completed within a given time. Sect. 103. And no plaintiff shall recover any costs in any action to be commenced against any person for any thing done in pursuance of this Act, unless notice in writing, signed by the plaintiff's attorney, be given to defendant twenty-one days before commencing the same, or if good and sufficient tender of amends be made, or defendant with leave of court has paid into court such sum as he thinks fit. Sect. 104. Every action brought for any thing done in pursuance of this Act shall be commenced within six calendar months after the cause of action arose, or in case of continuing damages, within six months after the doing such damage has ceased, and shall be laid in the county where act was committed, and the defendant in such action may plead the general issue and give this Act and the special matter in evidence, and that the same was done by authority of this Act; and if it appear to have been so done, or the action be brought after the time limited, or in any other county than as aforesaid, in such case the jury shall find for the defendant; and if the jury so find, or if the plaintiff become nonsuit, or discontinue, or judgment on demurrer be given against him, defendant shall have such costs as between attorney and client (c). Sect. 105. In case the said navigation, and the several works hereinbefore described, be not completed within the space of seven years from the passing this Act, then all the powers given by the same shall absolutely cease, but without prejudice to such of the rights and powers as can be made available for the benefit of the said Company: Provided always, that the said canal, reservoirs, feeders and other works thereof shall not be under the survey of the commissioners of sewers: Provided also, that all manorial rights, privileges and immunities of lords of manors shall be hereby saved to them in as ample a manner as if this Act had not passed. (c) Before the 5 & 6 Vict. c. 97, double and treble costs were usually given to defendants by the provisions of local Acts, all which are by that Act repealed, and defendants are to have costs only as between attorney and client. Canal Act. Sect. 106. And this Act shall be deemed to be a public Act, No. XXIV. and shall be judicially taken notice of as such by all judges, justices and others, without being specially pleaded. Public Act. No. XXV. An Act to enable Trustees (a) of an Infant to sell Part of his No. XXV. Estate Act. Whas W. E. late of &c. decd did by his will and testament Recital of will. bearing date &c. duly signed published and attested as by law required for the passing of real estate of freehold give and devise unto (Trustees) all his manors &c. and also all his psnl este whatsr in trust that they the sd (T.) shd allow his son (the Infant) so much for his maintenance and education as they shd think fit until he had attained his age of 21 yrs and upon or. trusts therein parlarly mentd. And whas the sd testator also willed that the sd (T.) shd convey and assign to his sd son when of the age of 21 yrs and his hrs all his sd este but if he died befe such age witht issue then he devised all his este to his daur. And whas the sd testator's psnl estate amounts to no more than the sum of £ which not being sufficient to discharge all his debts and his specialty creditors insist upon having satisfaction out of his real este which cannot be done without selling some part thereof and no sale can be made by reason of the infancy of the sd children but by authority of Parliament. Therefore your Maj. most dutiful and loyal subjects the sd (I.), (Guardian) and (T.) do most humbly beseech your Maj. that it may be enacted and be it enacted by the Queen's most Excellent Majesty by and with the advice of the (a) It is presumed that an Act of this kind can rarely, if ever, be wanted in future, as under the 11 G. 4 & 1 W. 4, c. 47, amended by the 3 & 4 W. 4, c. 104, the whole real estate is made assets for the payment of debts by simple contract as well as by specialty; and under the 11 G. 4 & 1 W. 4, c. 60, trustees are compellable, under the direction of the Lord Chancellor, to complete the sale of estates; but it does not appear that trustees of their own authority would even now be empowered to sell for the payment of debts. There must still therefore be an application to Parliament or to the Court of Chancery. VOL. I. G |