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of making it, the Lady Wilbraham and her son lived remote. Nor did it appear, that the rent of the farm was raised on account of the inclosure, so as to induce them to make an abatement of the rent of the tythes on that account; and the tenant Turland, who signed the articles, had an interest in the farm, so as to bind himself during his term therein, but not to bind his landlord. And therefore, upon these grounds it was hoped, that the decree would be reversed, and the bill dismissed with costs.

On the other side it was argued (R. Raymond, S. Cowper), that the appellant and the respondents were all the parties who now had any land, or right of common in Westfield; and therefore all parties interested might be bound by the decree, and the inclosure thereby made effectual: for as to the lands and estate which John Lucas had, he sold them soon after the articles to one Thomas Haynes, under whom the respondent Edward Gibbert now claimed the same: and as to John Jarvis, he was under some agreement at the time of the articles, to sell his estate and interest to Mr. Ralph Wilbraham, under whom the appellant claimed; and he soon afterwards conveyed the same to him accordingly. That the landholders in Charlton were, in some respects, inhabitants; but if any other persons, not actually inhabitants, had signed the articles, it was apprehended they would be binding and conclusive to such persons.. That all the persons under whom the respondents claimed were, at the time of making the agreement, inhabitants of Charlton, which was in the same parish where Mr. Ralph Wilbraham lived for several years after the agreement and inclosure. That John Turland, at the time of the agreement, was not only tenant, but also steward or bailiff to Mr. Wilbraham, receiving his rents, and managing his estate; and though Turland signed the agreement in a special manner, so far as he had power, yet, from what was done by Mr. Wilbraham afterwards, it must be presumed that he had given an authority to Turland for so doing, and that he consented to and confirmed the same; for it was proved in the cause, that Westfield [170] and the Lammas Closes had been held and enjoyed according to the agreement, for thirty years together, after the making thereof; and that after Mr. Wilbraham came to reside upon his estate at Charlton, he was very well satisfied with the agreement during all the time he lived there: and as an evidence of this agreement and consent, it was proved by two of the appellant's own. witnesses, that the tenant who rented the impropriate tythes of Charlton had £7 per ann. abated out of the rent of those tythes, soon after the laying down Westfield for a cow pasture, by reason of the same being converted from tillage into pasture; and therefore it must and ought to be presumed, that Mr. Wilbraham not only gave Turland authority to sign the agreement, but that he himself consented to and approved of it. That though some of the respondents might have plowed up some part of their lands after thirty years acquiescence, yet it was contended that the articles were still obligatory; it being admitted, even by the appellant, that two of them never infringed the agreement, or plowed up any of their land again; and whatever might be done by others, could not, nor ought in the least to prejudice the rights of these: besides, such of them as had so plowed, did it after thirty years acquiescence; but, being sensible of their error, soon laid down their land for pasture again; which ought not to be adjudged any waiver of the said agreement. That the establishing of the enclosure for the remainder of the ninety-nine years, was proved to be of advantage to all parties concerned, and particularly to the appellant; for by virtue thereof he enjoyed five closes, containing twelve acres in severalty, all the year, which, before the agreement and inclosure, were commonable for all the landowners, from Lammas-day to Candlemas, being six months: it was also proved, that the value of the tythes was better, by reason of the inclosure; nor could it be reasonably apprehended, that this inclosure would destroy the proof or evidence of the proprietors in their lands or common, after the ninety-nine years were expired; the same being now well known, and the testimony thereof would be preserved even by the present proceedings; though it was most probable, that at the end of the term, the great advantages of the inclosure would induce the land-owners to come to a new agreement for continuing it. And therefore it was hoped, that the decree would be affirmed, and the appeal dismissed with costs.

Accordingly, after hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed; and the decree therein complained of, affirmed. (Jour. vol. 21. p. 476.)