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XXII. On said, or otherwise attending the submission hereby made, Purchase,
to refer shall be borne and paid by the said parties in the proportions Disputes to following, that is to say: one moiety thereof by the said Arbitration.
[vendors], as such trustees as aforesaid ; and the other moiety Submission to by the said (purchaser] : AND LASTLY, the submission and rule of Court. agreement hereby made shall be made a rule of her Majesty's
High Court of Justice, on the application of either of the said parties. IN WITNESS whereof the said parties have hereto set their hands and seals, the day and year first above written.
be made a
The SCHEDULE TO WHICH THE ABOVE-WRITTEN AGREEMENT
XXIII. AGREEMENT between the DEAN AND
CHAPTER of a Cathedral, and a LESSEE of Lands held under the Dean and Chapter, and a HUSBAND and Wife, seised in right of the Wife of an ADJOINING ESTATE, in Fee, to REFER the settlement of the BOUNDARIES of the Premises held by the tuo Parties respectively to a REFEREE (a).
THIS INDENTURE, made the
Stat. 2 & 3 (a) The stat. 2 & 3 Will. 4, c. 80, intituled “ An Act to authorize Will. 4, c. 80. the identifying of Lands and other Possessions of certain EccleBoundaries of siastical and Collegiate Corporations,” after reciting that “the
archbishops and bishops of the several dioceses, and the deans, and perty.
deans and chapters, archdeacons, prebendaries, and canons, and Royal Assent, other dignitaries and officers of the several cathedrals and colle3rd Aug.1832.
giate churches and chapels, and the masters or other heads, and fellows and scholars or other societies of the several colleges and halls in the universities of Oxford and Cambridge, and of the colleges of Winchester and Eton, are proprietors of divers manors, messuages, lands, tenements, tithes, and hereditaments; and in many cases the boundaries or quantities and the identity of lands within such manors, and of such messuages, lands, tenements, and hereditaments, and of lands subject to any such
of in of the first part ; [lessee], of, &o. of XXIII.
Agreement to the second part; and (husband], of &c., and [wife], his wife, settle of the third part (6).
Disputed Boundaries of Church Lapds.
tithes, or some part or parts thereof, are unknown or disputed, and it would be a great benefit, as well to such proprietors respectively, as to their lessees, copyhold or customary tenants, sub-lessees, or under-tenants, their, his, or her heirs, executors, administrators, or assigns, if the said manors, messuages, lands, tenements, tithes, and hereditaments were identified and the boundaries and quantities thereof ascertained and finally settled :" enacts, sect. 1, "that from and after the passing of this Act it Archbishops, shall and may be lawful to and for any archbishop, bishop, bishops, deans dean, dean and chapter, or other corporation aggregate or sole and chapters, herein before mentioned, to enter into an agreement of reference into agreeor deed of submission with his or their lessee or lessees, copyhold ments or deeds or customary tenant or tenants, sub-lessee or sub-lessees, under- of reference tenant or under-tenants, his, her, or their heirs, executors, ad- with their ministrátors, or assigns, or with the owner or owners of any ascertain and other hereditaments adjoining to or intermixed with the said settle unmanors, messuages, lands, tenements, tithes, or hereditaments, known or diswhereby it shall be agreed that any unknown or disputed boun- puted boun
daries or daries or quantities of such manors, messuages, lands, tenements,
quantities of tithes, or hereditaments, or any part thereof, shall be referred to the adjudication of such person or persons as may be agreed upon and named by the said archbishop, bishop, dean, dean and chapter, or other corporation aggregate or sole, and by his or their lessee or lessees, copyhold or customary tenant or tenants, sub-lessee or sub-lessees, under-tenant or under-tenants, his, her, or their heirs, executors, administrators, or assigns, or by such owner or owners of any other hereditaments situate as aforesaid; and that such Referees to referee or referees shall be fully authorized to make or cause to make surveys, be made surveys, maps, and admeasurements of the said manors, admeasuremessuages, lands, tenements, tithes, and hereditaments, or any ments; to part thereof, and to summon any persons as witnesses, and summon and examine them on oath (which oath he or they are hereby autho- examine witrized to administer) touching or concerning any of the matters or nesses on oath, things so referred as aforesaid, or in any way relating thereto: and also to call for the production of all surveys, maps, deeds, to call for all books, papers, and writings in the custody or power of any of deeds, &c.; the parties to the said reference, or of any other person or persons, of or concerning the matters in question; and the said to make referee or referees, having well and sufficiently investigated and awards, with considered the same, and all matters to him or them referred,
maps thereto, shall and may make his or their award or awards in writing, or vellum.
on parchment under his or their hand and seal or hands and seals, with a map or maps drawn thereupon or thereunto annexed, and which said award or awards and map or maps shall be upon parchment or vellum, and shall award and determine, identify, delineate, and
(6) If the consent of any spiritual superior is requisite (see 2 & 3 Will. 4, c. 80, s. 2), such person should be made a party.
XXIII. WHEREAS by an indenture of lease, dated the Agreement to settle
and expressed to be made between the said Disputed Boundaries of Church Lands. describe the boundaries, quantities, particulars, and situations of
the said manors, messuages, lands, tenements, tithes, and hereAwards and ditaments, so referred to him or them as aforesaid; and the said maps to be
award or awards and map or maps shall be laid before all the laid before parties, and
parties to any such agreement of reference or deed of submis
sion, including the party or parties whose consent is required by bation to be this Act, whose approbation thereof shall be written upon the written said award or awards and shall be signed and sealed by them, thereon.
and thereupon the said award or awards and map or
ferred to." Certain con- Sect. 2. “That in every case in which any of the powers heresents required in before contained shall be exercised by any bishop, dean, archto render valid deacon, prebendary, or other ecclesiastical corporation sole, the proceedings under this
deed of submission or agreement of reference, and also the apAct.
probation of the award, shall, in the case of a bishop, be executed by the archbishop of the province testifying his consent thereto; or, in case of a dean, the same shall be executed by the dean and chapter testifying their consent thereto; or, in the case of an archdeacon, prebendary, or other ecclesiastical corporation sole, the same shall be executed by the archbishop or
bishop of the diocese testifying his consent thereto.” Power to te- Sect. 3. “That from and after the passing of this Act it shall nants for life, and may be lawful to and for the said lessee or lessees, copyhold infants, mar
or customary tenant or tenants, sub-lessee or sub-lessees, underried women, tenant or under-tenants, and such other owner or owners as herelunatics, &c. to enter into
inbefore named, his, her, or their heirs, executors, administrators, reference. or assigns, who at the time of making any reference authorized
by this Act, shall be tenant or tenants in fee tail, general, or special, or for life or lives, and for the guardians, husbands, committees, or attornies, of or acting for any such lessee or lessees, copyhold or customary tenant or tenants, sub-lessee or sub-lessees, under-tenant or under-tenants, and such other owner or owners as hereinbefore named, his, her, or their heirs, executors, administrators, or assigns, who, at the time of making any such reference, shall be respectively an infant or infants, feme covert or femes covert, or of unsound mind, or beyond the seas, or under any other legal disability, or otherwise disabled to act for themselves, himself, or herself, to sign, seal, and deliver any agreement of reference or deed of submission or approbation of any award or awards and map or maps authorized by this Act to be made, as fully and effectually to all intents and purposes as if such lessee or lessees, copyhold or customary tenant or tenants, sub-lessee or sub-lessees, under-tenant or under-tenants, and such other owner or owners, as hereinbefore named, his, her, or their heirs, executors, administrators, or assigns, had been tenant or tenants in fee simple, and of full age, sole, of sound mind, or within the realm of England, and not under any other legal disability.”
Dean and Chapter of of the one part; and the said XXIII. [lessee), of the other part; for the considerations therein Agreement to
settle Disputed Boundaries of
Church Lands. Sect. 4. “That immediately after the execution by the parties of the instrument showing their approbation of any award to be Recital of made by virtue of this Act, the agreement of reference or deed lease by Dean of submission, and also the award or awards and map or maps,
and Chapter. authorized to be made by this Act, and a copy of the minutes of
Agreement or evidence whereupon the same is made, shall be deposited, in the deeds of refercase of any reference by any archbishop or bishop, in the office ence, awards of their own registrar; and in case of any reference by any dean,
and maps, to dean and chapter, archdeacon, prebendary, canon, and other in registry of
be deposited dignitary and officer of a cathedral or collegiate church or chapel, archbishop, in the office of the registrar of the dean and chapter thereof; and bishop, &c. in case of any reference by any masters or other heads, or by any fellows and scholars, or other societies hereinbefore named, in the office of the steward or other proper officer of their said colleges and halls; and every such registrar, steward, or other officer, or Documents to some person or persons on his behalf, shall produce the documents be produced and papers so deposited with him, or any of them, at all proper for inspection. and usual hours of business, to every person interested in the subject matter of such award, or to his or her agent duly authorized, who shall make application to inspect the same or any of them, and shall furnish a copy or copies of the same or any of them to every such person or agent who shall make application for such copy or copies; and every such registrar, Registrar's steward or other officer, shall in every case be entitled to the fees. sum of five shillings and no more for receiving and preserving the agreement of reference or deed of submission, award or awards, map or maps, and copy of the minutes of evidence as aforesaid ; and the sum of one shilling and no more for every production of the same, or any of them, to be inspected; and the sum of sixpence and no more for every folio containing seventytwo words of every copy; and the sum of ten shillings and no more for every copy of a map so made as aforesaid."
Sect. 5. " That the expenses attending every reference which Expenses of shall be made under the authority of this Act, and all the pro- reference how ceedings hereby required relating to the same, shall be paid and to be paid. borne by the parties thereto in such manner, shares, and proportions as they shall agree; and in case the said parties shall not make any agreement relating to such expenses, then all such expenses, or so much thereof as shall not be provided for by such agreement, shall be paid and borne by the said parties in equal moieties."
Sect. 6. Act to extend only to England and Wales.
The jurisdiction of equity in granting commissions to ascertain Jurisdiction of boundaries, which in its origin was exercised only on consent of equity to both parties, is not very well defined: it is agreed that there settle boun
daries, must be some equitable ground for the relief beyond the mere fact that the boundaries are confused; but it is not easy to collect from the cases any general principle by which to ascertain what are or not sufficient grounds for equitable interference.
XXIII. mentioned, the said Dean and Chapter demised unto the said Agreement to [lessee] All (transcribe the description of parcels from the lease),
settle Disputed Boundaries of Church Lands. In Wake v. Conyers, 1 Eden, 331 (where the learned reporter
has collected all the older cases), S. C. 2 Cox, 360, the bill was filed to ascertain the boundary of two manors which lay in the midst of a freehold estate belonging to the defendant, who was also lord of one of the manors, and who, the bill alleged,
had cut down trees in his part which indicated the boundary. Boundaries of Lord Keeper Henley, in dismissing the bill, observed that there
was no precedent of fixing boundaries of an incorporeal inheritance, and that these writs were far from deserving encouragement. All the cases have been where the the soil itself was in
question, or where there might have been a multiplicity of writs. Jurisdiction
The Court has no power to fix the boundaries of legal estates, must be foun- unless some equity is superinduced by the act of the parties; as equity arising some particular circumstance of fraud or confusion, where one from the de-" party has ploughed too near the other, or the like. See Metcalfe fendant's acts. v. Beckwith, 2 P. Wms. 376. Boundaries of In Atkins v. Ilatton, 2 Anstr. 386, a bill by the rector of a a parish. parish seeking an account of tithes and a commission to settle the
boundaries of the parish and the glebe, was dismissed; the Court observing, that the presumption that all the lands which should be found within the parish would be titheable to the plaintiff was by no means conclusive, and there was no instance of a commission being granted in order to obtain a remote consequential advantage.
In the case of St. Luke's, Old Street v. St. Leonard's, Shoreditch, 1 Br. C. C. 40; S. C. nom. Waring v. Hotham, 2 Dick. 550, cit. 2 Anstr. 395, an issue was asked to settle the boundaries of two parishes; but Lord Thurlow, C., said that if he should direct an issue in such a case as this, he did not see what case would be peculiar to a court of law. Where there was a common right to be tried, such a proceeding was to be understood. That was the case where the tenants of a manor claim a right of common by custom, because the right of all the tenants of the manor is tried by trying the right of one; but in this case he saw no common right which the parishioners had in the boundaries of the parish. It would be to try the boundaries of all the parishes in the kingdom on account of the poor laws. He apprehended these issues
had been usually directed by consent of the parties. Confusion of
In Speer v. Crauter, 17 Ves. 216; 2 Mer. 410, a bill to settle boundaries, boundaries was brought by the lord of the manor of W. against caused by unity of pos
the lord of the adjoining manor of J. (who was lessee of the session. manor of W.), and against commissioners under an inclosure
Act, alleging confusion of boundaries, arising out of the unity of possession ; and that the defendants were preparing, by combination together, to set out a boundary of the manor of J., which would include lands belonging to W. The defendant, by his answer, set out boundaries, referring to perambulations made previously to the union of possession; and the lease having expired since the filing of the bill, and there being no proof that any confusion of boundaries had been occasioned by the default