1852. DOE d. PANTON v. ROE. THE declaration in this case, which was a country cause, was served in September, 1851. In the following November, application was made to the tenant to attorn and pay rent to the lessor of the plaintiff, which he at first promised to do, and the proceedings in the ejectment were consequently suspended. The negotiations between the parties for a settlement of the action continued until the 24th of March last, when they were ultimately broken off, the tenant refusing to attorn. Power now moved, after the lapse of two terms, for judgment against the casual ejector. He cited Doe d. Crooks v. Roe, 7 Jurist, 970, where a declaration in ejectment had been served more than two terms, but the proceedings had been suspended in consequence of a Chancery suit in relation to the same subject, and, there being no prospect of the termination of the Chancery suit, the court, on service of notice of intention to proceed with the ejectment, granted a rule nisi for judgment against the casual ejector. [Jervis, C. J. That is a different case.] The principle is the same: it is enough if it is shewn that the landlord is acting bonâ fide. [Jervis, C. J. In Doe d. Fell v. Roe, 1 Dowl. N. S. 777, Coleridge, J., granted a rule where the delay (of one term) had arisen from negotiations which had been pending down to so late a period of the term that the application could not be made in time. But here the lessor of the plaintiff has been guilty of great laches.] It can hardly be called laches to delay proceeding from indulgence to the tenant. April 28. The court refused to grant judgment against the a rule nisi for casual ejector, where two terms had been service of the tween the par ties with a view to the set tlement of the action; it not appearing that there would be any difficulty in serving the tenant again. 1852. DOE d. ΡΑΝΤΟΝ v. ROE. JERVIS, C. J. If it had been shewn that the delay had fairly arisen from negotiations pending between the parties, and that the lessor of the plaintiff had been prejudiced, as, for instance, from the tenant's having run away,—there might be some reason for granting a rule. But, as the tenant may be served again, I think the plaintiff ought to be left to that course. The rest of the court concurring, Rule refused. April 20. A local inclosure act (51 G. 3, c. cxviii) appointed a commissioner, with power to make allotments in the usual manner, and provided, that, in case the commissioner should incapable of acting, &c., another should DOE d. ROBERTS v. MOSTYN. THIS In the year 1811, an act (51 G. 3, c. cxviii) passed "for inclosing lands in the parishes of Llanarmon, Llandegla, and Bryneglwys, in the counties of Denbigh and Flint." By s. 1, it was enacted "that John Calveley, die, or become of Stapleford, in the county of Chester, and his successors, to be appointed in manner thereinafter mentioned, should be, and he was thereby, appointed the commissioner for setting out, dividing, and allotting the said several commons and waste lands in the said several parishes of Llanarmon and Llandegla, and that Walter Jones, of Cefn Rug, in the county of Merioneth, and his manner therein successors, to be appointed in manner thereinafter menmentioned; be appointed in his place, by a majority in value of the commoners present at a meeting to be held in the and a subse. quent section enacted that the award should be made within six years from the passing of the act :-Held, that an award made nineteen years after the passing of the act, and purporting to be made by a commissioner other than the commissioner appointed by the act, was good,-notwithstanding the lapse of time, and notwithstanding there was no proof of the due appointment of the commissioner by whom it was made,-the statute being directory only with regard to the time of making the award. tioned, should be, and he was thereby appointed the commissioner for setting out, dividing, and allotting the said several commons and waste lands in the said parish of Bryneglwys, and respectively for putting that act into execution. S. 3 provided, that, if either of the commissioners so appointed, or any of their respective successors, should die, or become incapable of acting, &c., before all the powers vested in them by that act, and the general inclosure act of 41 G. 3, c. 109, should be completely executed, a proper person or persons should be appointed commissioner or commissioners in the place and stead of any such commissioner or commissioners so dying or becoming incapable of acting, &c., by a majority in value of the commoners present at a meeting to be held in the manner therein mentioned. Ss. 20 and 21 direct the commissioners respectively to make allotments to the several proprietors of lands within the several parishes,—allotments to tenants for life and in fee-simple to be distinct. S. 25 provided, "that, if any person hath sold, or shall at any time before the execution of the said awards respectively, or either of them, sell his or her right, interest, or property in, over, or upon the lands and grounds hereby intended to be divided, allotted, and inclosed, or any part thereof, to any other person, then and in every such case it shall be lawful for the said commissioners respectively, and they are hereby respectively authorised and required, within their said respective parishes, to make an allotment of land unto the vendee or purchaser, or to his or her heirs and assigns, for and in respect of such right, interest, and property so sold." S. 26 enacted that all and singular the commons, heaths, and waste grounds, which should be allotted under and by virtue of the act, should, immediately after such allotments were made, be held by and be subject 1852. DOE d. ROBERTS v. MOSTYN. 1852. DOE d. ROBERTS v. MOSTYN. to such and the same tenures, customs, hereditaments, rents, and services, as the several and respective messuages, buildings, lands, tenements, and hereditaments, in respect whereof such allotted lands should be made, were then subject to. S. 34 impowered proprietors to borrow money on their respective allotments, to defray their respective shares of the costs, charges, and expenses of obtaining and carrying the act into execution. And s. 37 enacted "that two awards and two maps or plans, in the manner and form prescribed by the recited act (41 G. 3, c. 109) shall be made within the space of six years from the passing of this act, that is to say, one by the said John Calveley as to the commons and waste lands in the said parishes of Llanarmon and Llandegla, and the other by the said Walter Jones as to the said commons and waste lands in the said parish of Bryneglwys; and that the said awards, when inrolled in manner directed by the said recited act, shall be deposited at the places hereinafter mentioned, that is to say, the awards for the said parishes of Llanarmon and Llandegla, in the parish churches of the same last-mentioned parishes respectively, and the award for the said parish of Bryneglwys, in the parish church of the same lastmentioned parish; and duplicates thereof shall also be deposited in the office of the clerk of the peace for the county of Denbigh, for the perusal of all persons interested therein." One John Roberts became entitled to an allotment under this act, in respect of his commonable rights in the parish of Llanarmon, and sold them to Sir Thomas Mostyn, the defendant's ancestor. This action was brought by the son of the allottee, who claimed to be entitled under a marriage settlement. It appeared that John Calveley, the commissioner named in the act, died in the year 1819. There was no evidence of the appointment of a new commissioner: but the award for the parishes of Llanarvon and Llandegla, which appeared to have been made in the year 1830, purported to be made by one Hughes, who had acted as surveyor under the act. A witness who was called on the part of the lessor of the plaintiff proved, that, after Calveley's death, Hughes went on with the business of the allotment. It was objected, on the part of the defendant, that the award was not admissible, on the grounds, that there was no proof of the due appointment of Hughes as a commissioner, and that the commissioner was not appointed, or the award made, within the six years limited by the 37th section of the statute. A verdict was taken for the lessor of the plaintiff, subject to a motion to enter a verdict for the defendant, or a nonsuit, if the court should think either of the above objections well founded. R. V. Williams now moved accordingly. He submitted that the award was inadmissible in evidence, without proof that it was made within the time limited by the inclosure act, and by a commissioner duly constituted pursuant to the 37th section. [Jervis, C. J. The question is whether the act is imperative in that respect, or only directory.] It is impossible to give any effect to it, without holding it to be imperative. [Jervis, C. J. The contrary was decided in Doe d. Nanney v. Gore, 2 M. & W. 320: there, a local inclosure act impowered the commissioner, by deeds, executed in the presence of and attested by two witnesses, to sell such portions of the waste lands as should be necessary to defray the expenses of carrying the act into execution, before award made in ejectment by a party claiming under a conveyance from the commissioner in pursuance of such power, it appeared that the lessor of the plaintiff pur 1852. DOE d. ROBERTS ย. MOSTYN. |