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Weights and Measures

the wilful act or culpable neglect of the party accused : Provided further that nothing herein contained shall be construed to extend to such bread as is usually sold under the denomination of rolls, cakes or pastry.

12. And be it further enacted that all informations and proceedings on account of any offence under this Act shall be heard and determined, and all forfeitures and penalties in respect of the same shall be awarded and imposed in a summary way, by any one Justice of the Peace, who shall summon before him the party accused and all necessary witnesses; and upon appearance of the party accused (or in his absence upon proof by oath of his having been served with the said summons, either personally or by the same being left at his usual place of abode) such Justice shall hear the matter of such information, and examine all necessary witnesses upon oath, and make such order thereon as to him shall seem meet ; and in case the party accused shall be by him convicted, and shall fail to pay any fine or penalty, costs or expenses awarded by such order, within three days next after such order shall have been personally served on him or left at his usual place of abode, it shall be lawful for such convicting Justice to levy and raise such fine or penalty, costs or expenses by distress and Sale of the goods and chattels of the party so convicted; and in case such goods and chattels shall be insufficient for that purpose, it shall be lawful for the convicting Justice to commit the party so convicted to any gaol or house of correction for any term not exceeding six Calendar months.

13. And be it further enacted that on the hearing of every information under this Act for the offence of using or having in possession any deficient weight or measure, the weight or measure alleged by such information to be false or deficient shall be compared with the Said standard weights or measures in the presence of the Justice who shall hear such information.

14. And be it further enacted that on the hearing of any such information as last aforesaid or of any information for using or possessing a false balance, any such examiner as aforesaid shall be admitted as a competent witness to prove the fact that the weight, measure or balance alleged to be false or deficient was found in the shop, store-house or out-house or otherwise in the possession or apparent ownership of the party accused, notwithstanding that such examiner may by conviction of the party accused become entitled as informer to part of the penalty incurred by such conviction.

15. And be it further enacted that if any person who shall have been twice summarily convicted of any offence against the provisions of this Act, shall afterwards be guilty of any such offence, every such person being thereof convicted by indictment at the Quarter Sessions of the Peace for the said Colony shall be subject to such fine, not exceeding the sum of fifty pounds, and to such imprisonment not exceeding the term of six calendar months, as the said Court shall in its discretion award; and that it shall be lawful for the Justice who shall hear the information charging such third offence to require the accused party to enter into recognizance with one sufficient Surety at the discretion of such Justice for the appearance of the accused party at the next Sessions of the said Court to take his trial for such third

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Exceptions of rolls, cakes and pastry

All convictions
before one
Justice of the
Peace

Who may enforce the conviction by distress and sale, or imprisonment not exceeding six calendar months

Weights, &c., deficient shall be compared with standards in presence of Magistrate hearing information

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Informations, when to be laid

Right of Appeal

Appropriation of penalties

Preamble

Weights and Measures

offence; and in default of such surety, it shall be lawful for such Justice to commit the accused party for trial.

16. And be it further enacted that all informations and proceedings in respect of offences against this Act shall be commenced within one calendar month next after the offences thereby respectively charged shall have been committed.

17. And be it further enacted that if any person shall think himself aggrieved by any judgment or conviction made under this Act, such person may appeal therefrom to the next Court of Quarter Sessions of the Peace for the said Colony; which Court shall hear and determine the matter of such appeal, and shall summon all necessary parties and witnesses, and shall make such order in affirmance or reversal of the judgment or conviction appealed from, and for payment of the costs of appeal, as to such Court shall seem meet ; and shall enforce such order, if necessary, by distress and sale of the goods and chattels of any person refusing or neglecting to obey such order; or by imprisonment of any such person for any time not exceeding six calendar months: Provided that notice of such appeal be given by the appellant to the Justice from whose judgment or conviction such appeal shall be made, within three days next after such judgment or conviction ; and that such appellant deposit the sum of five pounds with such last-mentioned Justice or enter into a recognizance with two sureties for the purpose of securing payment of the costs of such appeal.

18. And be it further enacted that all fines, forfeitures and penalties recovered under or by virtue of this Act shall be payable in equal moieties to the use of His Majesty, his heirs and successors, and to the party or parties informing.

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No. 4
An Act to regulate the Fencing of Town and Suburban
Allotments. [Assented to 7th April, 1834.

HEREAS the cultivation and improvement of located lands lying in and adjacent to town sites in the Colony of Western Australia may be much promoted by compelling, under certain restrictions, the erection of party fences thereto : Be it therefore enacted by His Honour the Lieutenant-Governor of Western Australia and its Dependencies, with the advice of the Legislative Council, that the proprietor or tenant of a town or suburban allotment or his or her Trespass (Fencing)

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agent respectively being desirous of erecting the common boundary fence between the same and any next adjoining land (not being Crown land reserved for any special purpose), whether within or without any town site, may require in writing the proprietor of such adjoining land (or the agent of such last-mentioned proprietor if absent from the said Colony) to erect a moiety of such common boundary fence in such manner and of such kind or description as may thereafter be mutually agreed on by or on behalf of both the said proprietors, or as for want of such agreement shall be determined by two arbitrators, of whom one shall be named in writing by the party making such requisition, and the other shall be named in like manner by the party to whom such requisition shall be addressed.

2. And be it further enacted that every requisition made under the provisions of this Act shall be served either personally on the party to whom the same shall be addressed or by leaving the same at the last or usual place of abode of such party, and that every such requisition to fence any adjoining ground whereof the proprietor shall be unknown or absent from the said Colony without any known agent within the same, shall be made and published by three successive advertisements in the ‘Government Gazette' of the said Colony.

3. And be it further enacted that if the proprietor or agent on whom any such requisition shall be served or to whom the same shall be notified by three successive advertisements as aforesaid shall not within fourteen days after such service, or within the like period after the last of such advertisements, either execute a written agreement for the erection of the boundary fence so required or join in appointing arbitrators as aforesaid for determining the nature and mode of constructing of such fence; in such caso the Government Resident at the town site in which the land required to be fenced is situate (or any neighbouring Justice of the Peace, in case there shall be no Government Resident at such town site or such Resident shall be sick or absent) shall proceed on the application and together with the arbitrator of the party making such requisition to determine in writing the kind or description of such common boundary fence, and the particular moiety thereof to be erected by the party to whom such requisition shall be addressed, and a copy of such determination shall be served on such last-mentioned party in the same manner as such requisition, or in case of the absence of such last-mentioned party from *: Said Colony, shall be notified by an advertisement in the said ‘Gazette.’

4. And be it further enacted that any such written agreement or determination as aforesaid or any award made by arbitrators appointed in pursuance of any such requisition as aforesaid, of which agreement, award, or determination, notice shall be published in the said “Gazette,’ shall from the date of such notice be binding on the heirs and assigns of the parties making such agreement, or affected by such award or determination.

5. And be it further enacted that if any proprietor or agent, having been served with any such requisition, or to whom any such requisition shall be notified by advertisement as aforesaid, shall not within three calendar months after the execution of any written agree

ment made in pursuance of such requisition, or within the like period

Boundary fence to be erected on a written requisition between town allotments

Mode of serving such requisition

When proprietor riot known

If the party Served shall not within fourteen days determine the nature of the boundary fence; mode of determining Saule

Agreement or determination to be binding after publication in the “Gazette’

If the part served shall not erect the fence required within three calendar months from date of agree ment, &c., the party making the requisition may proceed to erect such fence

And may enter on the land and cut down necessary timber, &c.

Mode of recovering costs of such fence from the opposite party

Affidavit may be
registered in
Registry of
Deeds, &c.

Such costs shall become a charge on the allotment, With interest

If such costs not paid the land charged therewith may be sold

Governor mfly order the erection of dividing fences between streets, &c., and private allotments

Costs thereof certified and registered

Trespass (Fencing)

after the date of any award made by arbitrators appointed in pursuance of such requisition, or within the like period after the service or notification by advertisement of any such determination made on default of appointment of arbitrators as aforesaid, erect and finish a moiety of the fence referred to by such agreement, award, or determination, and in conformity therewith respectively; in either of the said cases, the party making such requisition as aforesaid may proceed, without any further notice or demand, to erect the particular moiety required to be erected by such requisition, of the common boundary fence therein referred to ; and for that purpose to enter with all necessary workmen, servants, cattle and vehicles, on the adjoining ground so required to be fenced off, and may there cut down, dig up, and prepare all mecessary timber, earth, or other materials for constructing such moiety; and may cut down and remove any tree or trees which may in reasonable probability endanger such fence when erected; or which may obstruct the erection thereof.

6. And be it further enacted that any proprietor, tenant, or agent, who shall have erected a moiety or other less portion of any party fence under the authority of this Act, and shall be desirous of recovering the costs thereof in the mode hereby provided, shall make affidavit, to be sworn before any Justice of the Peace, that such moiety or other portion of party fencing has been erected at the costs therein mentioned on or in respect of the adjoining allotment therein described, in conformity with the provisions of this Act; to which affidavit shall be annexed a certificate, under the hands of two respectable householders, certifying that such costs are according to the market prices of fencing labour and materials; and every such affidavit and certificate may be registered in the office of the Registrar of Deeds and Transfers.

7. And be it further enacted that the costs sworn to in any such affidavit shall, from the time of such registration thereof as aforesaid, become a charge, in the nature of a mortgage debt, on the allotment described in such affidavit; and shall bear interest after the rate of ten pounds for one hundred pounds by the year, to be raised, if not sooner paid, at the same time and in the same manner as the said costs.

8. And be it further enacted that if any such costs as aforesaid shall not be paid on or before the expiration of twenty-four calendar months from the date of registration thereof, together with all interest due thereon, the party expending the same may, after fourteen days' notice in the ‘Government Gazette,' require any Government Auctioneer to sell the allotment charged with such costs.

9. And be it further enacted that it shall be lawful for the Governor, or other Officer for the time being administering the Government of the said Colony, to order the erection, at the public expense in the first instance, of any common boundary fence between a street or highway, and any town allotment not being fenced in the time and manner prescribed by the conditions and regulations under which such allotment was granted; and the costs of every such fence, so erected as last aforesaid, being estimated according to the market price of labour and materials, shall be certified, together with a description of the allotment thereby fenced off, under the hand of the Government Resident, or other Officer under whose Trespass (Fencing)

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superintendence the same shall have been erected, who shall cause such certificate to be registered in the office of the Registrar of Deeds and Transfers; and from the time of registration of such certificate, such costs shall become a charge on the allotment described in such certificate; and if such costs shall not be paid to the Collector of Colonial Revenue, on or before the expiration of twelve calendar months from the date of such registration, it shall be lawful for the Governor, or other Officer for the time being administering as aforesaid, to direct any Government Auctioneer to sell such last-mentioned allotment by public auction after fourteen days' notice in the said ‘Gazette.’

10. And be it further enacted that the proprietor or tenant of a town or suburban allotment next adjoining to ground belonging to His Majesty (not being reserved for any special purpose) may, at pleasure, erect the common boundary fence between such allotment and Such adjoining Crown land, and may require in writing the person who shall subsequently obtain a grant from His Majesty of, or license to occupy, such adjoining Crown land, to appoint in writing an arbitrator for the purpose of awarding (together with an arbitrator to be in like manner appointed by the party making such requisition) the proportion to be paid by such subsequent grantee or occupant of the value of such fence; and in case the party to whom any such requisition as last aforesaid shall be addressed shall not, within fourteen days after service thereof, appoint an arbitrator in conformity therewith, the Government Resident of the town site in or nearest to which such adjoining Crown land shall be situate (or any neighbouring Justice of the Peace, in case there shall be no Government Resident at such town site, or such Resident shall be sick or absent) shall, on the application and together with the arbitrator of the party making such requisition as last aforesaid, determine under their respective hands the proportion of the value of such fence to be paid by the party obtaining such grant or license of occupation; and a copy of such determination shall be served on the Same person and in the like manner as any such last-mentioned requisition; and every such award or determination as last aforesaid may be registered in the Office of Deeds and Transfers; and the proportion or Sum thereby awarded to be paid shall, from the date of such registration, become a charge in the nature of a mortgage debt on the land so granted as last aforesaid, and shall bear interest after the rate of ten pounds for every one hundred pounds by the year; and if such proportion or sum, together with all interest due thereon, be not duly paid within twenty-four calendar months after registration thereof, the party entitled to receive the same may, after fourteen days' notice in the said ‘Gazette,’ call upon any Government Auctioneer to sell the land charged therewith by public auction.

11. And be it further enacted that the proprietor or tenant of any town or suburban allotment, who shall have erected, before the commencement of this Act, at his or her sole expense, the whole of any common boundary fence between such allotment, and any next adjoining ground, whether within or without any town site, shall be entitled to recover against the proprietor of such last-mentioned land, a proportion of the value of such last-mentioned fence, by such and the like mode of proceeding as is hereinbefore provided and directed for recovering a

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