tified, and the quantities and boundaries thereof ascertained and finally settled," enacts, "that it shall and may be lawful for any "of the said corporations to enter into an agreement of reference, 66 or deed of submission, with such lessees or tenants as aforesaid, "his, her, or their heirs, executors, administrators, or assigns, or " with the owner or owners of any other hereditaments adjoining "to or intermixed with the said manors, messuages, lands, tenements, tithes, or hereditaments, whereby it shall be agreed that any unknown or disputed boundaries or quantities of such manors, &c., or any part thereof, shall be referred to the adjudi"cation of such person or persons as may be agreed upon and "named by the said corporation, and by his or their tenant or "lessee, tenants or lessees, his, her, or their heirs, executors, "administrators, or assigns, or by such owner or owners of any "hereditaments situate as aforesaid; and that such referee or "referees shall be authorized to make surveys, maps, and ad"measurements of the said manors, or any part thereof, and summon any persons as witnesses, and examine them on oath (which oath he or they are authorized to administer) touching any of the matters or things so referred, or in any way relating thereto; and also to call for the production of all surveys, maps, deeds, books, papers, and writings in the custody or "power of any of the parties to the said reference, or of any other person or persons, of or concerning the matters in question; and "the said referee or referees shall and may make his or their "award or awards in writing, under his or their hand and seal, or "hands and seals, with a map or maps thereupon drawn or "thereunto annexed, and shall award and determine, identify, "delineate, and describe the boundaries, quantities, particulars, "and situations of the said manors, &c., so referred to him and "them, as aforesaid; and the award and map shall be laid be"fore all the parties to the reference or deed of submission, 66 including the party or parties whose consent is required by "this act, whose approbation thereof shall be written upon the "said award and shall be signed and sealed by them; and thereupon the said award shall be for ever afterwards binding upon "all parties, and final and conclusive as to all matters therein "contained or thereby referred to1." And also "that in every case in which any of the said powers "shall be exercised by any bishop, dean, archdeacon, prebendary, or other ecclesiastical corporation sole, the deed of sub 1 Sect. 1. 1 Sect. 2. * Sect. 3. Sect. 4. • Sect. 6. "mission, or agreement of reference, and also the approbation of "the award, shall, in the case of a bishop, be executed by the "archbishop of the province, testifying his consent thereto; or, "in the case of a dean, by the dean and chapter; or, in the case of an archdeacon, prebendary, or other ecclesiastical cor"poration sole, by the archbishop, or bishop of the diocese 1." Where any of such lessees, tenants, or owners are under disability, they are enabled to refer and approve the award by their guardians, &c.2. The act provides for the custody of the award and the minutes of evidence, and directs that the officer having custody of them shall allow inspection at proper hours to all parties interested, and give out copies upon payment of specified fees 3, and also provides for the payment of the expenses of the award*. 5°. As between Freeholds and Copyholds.]--This is also a fertile source of embarrassment. Copy holds are rarely distinguished by the description of them in deeds and court rolls; the description in the latter being seldom changed, and often bearing in names, and even in quantity, no resemblance to any modern description of the parcels. When long held by the same owner, the boundaries between such of them as form part of the same inclosure are obliterated and forgotten, and it becomes necessary to make a freehold conveyance, and also a copyhold conveyance of the same land. If the owner, mistaking the tenure, open a mine, or cut timber upon the part of his land which he erroneously believes to be freehold, the land is forfeited to the lord, who may seize it upon proving it to be copyhold. Upon a sale an insuperable objection may be taken by the purchaser, that the vendor cannot point out with certainty what part of the estate is freehold and what is copyhold. This inconvenience from confusion of boundary* is particularly felt in the counties of Norfolk, 3 Rep. R. P.C. Suffolk, and Essex 5. 15. *The following remarks on the law as to the ownership and reparation of fences may be here introduced. According to the general rule of law, a man is only bound to take care that his cattle do not wander from his own land, and trespass upon the land of others. (Churchill v. Evans, 1 Taunt. 529). Where adjoining lands, which have once belonged to different persons, one of whom was bound to re pair the fences between the two, afterwards become the property of the same person, the pre-existing obligation to repair the fences is destroyed by the unity of ownership; and where the person, who has become the owner of the entirety, afterwards parts with one of the two closes, the obligation to repair the fences will not revive, unless express words be introduced into the deed of conveyance for that 9. Concealed Trust.]-Where there is any reasonable ground for supposing that the vendor holds, subject to an undisclosed trust, a purchaser will not be compelled to complete. Thus, in purpose. (Boyle v. Tamlyn, 6 B. & that which ought to be the common C. 329). property of the two. (Per Bayley, J., in Cubitt v. Porter, 8 B. & C. 264). Where two adjacent fields are separated by a hedge and ditch, the hedge, primâ facie, belongs to the field in which the ditch is not; and if there are two ditches, one on each side of the hedge, then the right to the property of the hedge must be ascertained by proving acts of ownership. (Per Bayley, J., in Guy v. West, 2 Selw. N. P. 9th ed. 1342). As to ditching, the rule is this:-A person making a ditch cannot cut into his neighbour's soil, but usually he cuts it to the very extremity of his own land: he is of course, bound to throw the soil which he digs out upon his own land; and often, if he likes it, he plants a hedge on the top of it. Therefore, if he afterwards cut beyond the edge of the ditch, which is the extremity of the land, he cuts into his neighbour's land and is a trespasser. (Per Lawrence, J., in Vowles v. Miller, 3 Taunt. 138.) It having been contended, that the party to whom the hedge and ditch belonged, was entitled, at common law, to leave a width of eight feet, as the reasonable width for the base of his bank and the area of his ditch together, this learned judge said: "No rule about four feet and eight feet has anything to do with it; he may cut the ditch as much wider as he will, if he enlarges it into The common user of a wall, separating adjoining lands, belonging to different owners, is primâ facie evidence that the wall, and the land on which it stands, belong to them in equal moieties, as tenants in common. (Wiltshire v. Sidford, 8 B. & C. 259). And, therefore, where an ancient wall was pulled down by one of the two tenants in common, with the intention of rebuilding it, and a new wall was built, of a greater height than the old one, this was held to be not such a total destruction of the wall, as to entitle one of the two tenants to maintain trespass against the other, (Cubitt v. Porter, Id. 257); but, if two persons have a party wall, one half of the thickness of which stands on the land of each, they are not tenants in common of the wall, or of the land on which it stands, though the wall was erected at the joint expense of the two proprietors, (Matts v. Hawkins, 5 Taunt. 20, a case under the Building Act, 14 Geo. 3, c. 78); and therefore, if one proprietor add to the height of such a party wall, and the other pulls down the addition, the former may maintain trespass for pulling down so much of it as stood on the one half of the wall which was erected on the plaintiff's soil. (Ib.) The property of a wall erected at a joint expense follows the property of the land whereon it stands. (Ib.; Hutchinson v. Mains, 1 Alc. & Nap. 155). If the wall stands partly on one man's land and partly on another's, either party would have a right to pare away the wall on his side, so as to weaken the wall on the other, and to produce a destruction of his own land." A ditch is a fence within the meaning of the General Inclosure Act, 41 Geo. 3, c. 109, which requires that the allotments should be inclosed and fenced on all such parts and sides as should not be directed to be fenced 1 Sheffield v. Mulgrave, 2 Ves. jun. 526. Sheffield v. a case where a testator, being seised in fee simple of certain estates, and of a rectory for lives, under a lease granted by the Archbishop of York, devised to trustees in fee all his manors, messuages, lands, tenements, tithes, and hereditaments, and all his real estate whatsoever," upon trusts in strict settlement. He then gave annuities to his daughter M. and his son R., and charged the rectory with the payment of them; "and he directed that if his son R. and his daughter M., or either of them, should be living at his decease, the lease of the rectory should be renewed, and that the fine and expenses of renewal should be paid out of his personal estate; and that the lives of his said son and daughter, if both living at the time of granting such new lease, or, in case of the decease of either, the life of the survivor, should be added to the life or lives then subsisting, by which the said premises should be held; but that if both should be then living his son R. should have the preference, so far as to have his life first added in the new lease." After the death of the testator A., his eldest son and heir-at-law, having obtained a renewal for the lives of himself and two other persons, and releases of the two annuities, entered into a contract for the sale of the rectory. In a suit for the performance of the agreement a case was, at the hearing, directed to the Court of King's Bench, on the question, "What interest the vendor took in the leaseholds for lives?" when they certified 2 that the leasehold Lord Mulgrave, property was not comprehended in the hereditaments and real estate devised in strict settlement, but that it descended upon A., as special occupant, and that, as such, he took the absolute interest at law in the then existing lease3. The defendant still resisted performance, insisting that the cautious expression of the certificate, "that A. took the absolute interest at law," plainly indicated the opinion of the judges, that it was doubtful whether in a court of equity he was a special occupant for his 5 T. R. 571. 'The leading authorities on this subject are Thomson v. Lawley, 5 Ves. 476, 540; Wat kins v. Lea, 6 Ves. 633; have been saved, which had been expended, if it had been thought suffi by any other proprietor, or as should been constantly done, namely, planting quickset hedges, and putting up posts and rails to protect the fences for a certain number of years, merely to dig a ditch, and where there was a pre-existing ditch, to have that alone as part of the fence." own benefit. It was also argued, that it was very doubtful whether the former part of the certificate was right; and Lord Eldon, who seems to have concurred in both these views, refused to decree specific performance. "The particular expression of the certificate," said his Lordship, "was intended as a caution to me, and suggests a trust behind for parties not before the court. But I feel a just bias on my mind upon the question the court of law has decided. When I sent it to law, I thought it a very doubtful question. I cannot force a purchaser to take a title upon which I entertain great doubt. I cannot indemnify. Titles are frequently overturned at the distance of many years; I should not like to have such a title forced upon me." 10. Sale under a Sequestration.]—In Shaw v. Wright1 the 13 Ves. 22. court refused an application for the sale of certain leasehold estates taken under a sequestration for want of an answer, on the ground that the sequestrators could not make a title; reasoning the point thus::-"But how shall I make a title? By whom? I cannot well order the sequestrators to sell without at the same time warranting the title. Then I do not know how I can do that: it does not transfer the term to the sequestrators. It is only a process to compel an appearance, -the performance of a duty. The difficulty is this: if the sequestrators sell, and the purchasers should be brought before this court to complete their contracts, I could not compel them to pay the money. I cannot make a man take a title which he is to support by a bill for an injunction." 11. Confirmation.]—In an old case 2 the subject of sale was a leasehold estate, and the objection to the title was, that A., the tenant for life, under an act of Parliament empowering him to grant leases, had not, in granting the leases, conformed to the terms prescribed by the act. This was the fact; and the only question was, whether the leases had been confirmed; as to which it appeared, that A., the tenant for life, had joined with B., the remainderman in tail, in suffering a recovery, the uses of which were declared to be to A. for life, remainder to trustees for a term, remainder in fee to B., who sold his reversion by auction; and the leases were recited in the deed upon the recovery, and in the particular and conveyance under the sale. The question was, whether this amounted to a confirmation, upon which Lord Commissioner Ashurst expressed the opinion of the court as follows: "When the court is called upon to decree a specific 2 Cooper v. Denne, 1 Ves. jun. 565; S. C., 4 Bro. C. C. 80. |