The Sun.
London, England, 1829-07-03 00:00:00

LIVERPOOL.

WEDNESDAY, JULY I.—High water 15 minutes past
eleven o'clock.—Wind S.S.E.---. Arrived the Marian,
\Vestphael, from Dantzic; Heveius, Prutz, from ditto;
Reliance, Harrison, from Paraiba, off; Briton, Thomas,
from Charleston.

CLEARED OUTWARDS.—The Manchester, —...—, for
New Orleans ; Ann Paley, —, for Lisbon ; Allerton,
Gill, for Jamaica; Andes, Tomkins, for New Yolk ; and
Mona Castle, -, for Douglas.

Passed Holyhead, inward bound, the Bee, British
brig, at one p. m.

DON MIGUEL'S CRUIZERS.

(From the Times.)

The Captain of a merchant vessel, who has ar-
dyed in town from a voyage, in the course of which
he fell in with the blockading squadron off Terceira,
(rives an account which is absolutely ludicrous of
the freaks played by the officers of the contemptible
little tyrant, who, having obtained a sort of impu-
nity from his very insignificance, seems resolved to
insult and brave every flag that waves on the ocean.
The cases now to be mentioned relate to three of
the very first class,—viz. British, American, and
French. The English ship was the lialkin, pro-
ceeding from Terceira to Faro in ballast. She was
fired upon with 20 or 30 musket balls, brought to,
and detained by the Portuguese ship of war the
Don John VI. Soldiers were then placed on board:
she was sent to the island of St. Michael's, which
is about 80 miles from Terceira, and kept for seven
days, probably with the intention of making a regu-
lar capture of the vessel, but the Undaunted frigate
chancing to come to anchor there, the Malkin was
released.

The French flag was not quite so respectfully
treated, for the commander of the blockading squad-
ron actually made prize of a schooner belonging to
the French merchant-service, fitted her up, and
armed her as a tender, with a small party of marines
on board, and the vessel in the beginning of last
month was cruising as part of the Portuguese
squadron off the island of St. George. Of the fate
of the commander and crew of this ship, nothing is.
known.

The American ship, which is called the Gleaner,
was also made a regular capture of by the Don
John VI. She was lying at anchor off Terceira at
the time, when a boat's crew were sent on board,
who plundered the vessel of all she contained, not
excluding articles of wearing apparel belonging to
the sailors. They took her quadrant, telescopes,
and even an apparatus for the whale fishery, in
which the vessel was employed. They then took
possession of the ship, assuming the entire charge,
and navigated her to St. Michael's. There the
whole of her cargo, consisting of rice, flour, and
other articles, was unloaded, and she was regularly
moored in the harbour with the Portuguese mooring
chains, her own anchor and cables having been cut
away at the time she was first taken possession of!
In the race of forbearance, it is not difficult to
foresee which nation will be the first to resent
actively such insults as these, and that this will be
the Republic.

IRISH PARLIAMENTARY RETURNS.

(From the Morning Chronicle.)

The following catalogue raisonne of results of the
approaching Irish Elections is received as a plausi-
ble approximation. For the County of Down, Lord
Castlereagh will be returned without a contest;
rumour, with her hundred mendacious tongues, has
asserted that Colonel Forde, of Seaford, the late
Member, will contest the point, but there is no such
intention—his Lordship will walk over. For Cork,
it is hard to say who will succeed Sir Nicholas
Colthurst; but this much is pretty certain, that it
will not be either Mr. Gerald Callaghan, or Colonel
Hodder, jun. For Clare, Mr. O'Connell's success
is inevitable ; as is the strange circumstance, that
after all the coquetting, disclaiming, and manoeuvring
which every body has seen or heard so much of, if
a favourable report is sent over by the Emissary
lately gone to Ireland with a roving commission,
Mr. Vesey Fitzgerald will declare himself, with the
full Government influence at his back—and be
beaten once more, influence and all. For Wicklow,
Mr. Hume is supposed to stand the best chance.
For Galway, if Mr. James Daly will at last venture
to put on the blushin4 honours of the Peerage, old
recollections will probably send young Mr. Martin
to supply the place of his father, as conservator of
the lives and Hulks of the brute creation at St.
Stephen's. For Louth, as the vacancy is not yet
made, and as the effect of Lord Clermont's decease
is not well ascertained, and as that small but sprightly
district presents the novel and frightful anomaly of
two Popish Candidates, it would be hazardous to
venture a prediction. For Dublin University,
whenever a vacancy may occur, Mr. Wilson Croker
will not be the man. Waterford, we fear, is des-
tined at no distant day, to fall again into the clutches
of the Beresfords.

Se much for Ireland in the autumn of 1829.

The possible existence of these latent entails
leads to great expense upon almost every transfer
of real property. Not only is an abstract spew-
ing the title for nearly a century necessary ; but,
if it appears that the property was in settlement
at the commencement of such period, earlier title
deeds are required, for the purpose of sliming
what estates tail in remainder had been created,
and whether they had been effectually barred.
No length of enjoyment gives absolute security
to possession ; and upon alienation, titles, to
which there is no substantial objection, are found
unmarketable, and a purchaser who repents of
his bargain is too often furnished with a pretext
for fraudulently renouncing it.
To get rid of these serious. evils, we propose
that when there has been an adverse possession
which bars a tenant in tail who had a right to
the possession, and his issue, or when there has
been possession for twenty y ears under a base fee
created by a tenant in tail, the remainders over and
the reversion shall be barred in the same manner
as if a recovery had been duly suffered.
If it should be apprehended that too great en-
couragement might thus be given to tenants in
tail in remainder creating a base fee (which cer-
tainly is, whilst it endures, a very inconvenient
estate) the objection may be obviated by fixing,
as has been proposed to us by a gentleman of
the highest legal attainments, the longer term of
forty years as the period of limitation in this par-
ticular case. We think, however, the objection
to the shorter period not sufficient to make the
extension expedient, though, if it were adopted,
the advantages we have in view would still in a
great measure be attained.
We do not think that any serious injury will
be done to remainder-men by this proposal being
carried into effect, while it will certainly have a
powerful tendency to quiet possession and to
lessen expense, litigation, and fraud, upon the
transfer of real property. The interest of a re-
mainder-man in tail expectant upon an estate
tail in possession is of very unsubstantial de-
scription. It may be extinguished at any time
by the act of the tenant in tail in possession, and
if the remainder-man is barred after the pres-
cribed adverse possession, or rightful possession
under the base fee, he is only in the same situa-
tion in which he would have been if an act had
been done which might lawfully have been done
at any time during the prescribed period. In
analogy to a modern practice, we might have
proposed that, after twenty years possession
against or under the first tenant in tail, a jury
should be directed to presume that a recovery
had been suffered by him or his issue ; but we
venture humbly to express our disapprobation of
presumptions known to be contrary to the fact,
and our preference of the plan of direct legisla-
tive enactment.
We are encouraged to propose this important
innovation of abridging the right of the remain-
der-man in tail by the almost unanimous opinion
of those whom we have consulted, or who have
favoured us with any communication upon the
subject.
Great practical difficulty has arisen in deter-
mining what is adverse possession, and when it
shall be considered to have begun. This must
generally be left as a question of fact for a Jury;
but there are some rules of law, preesumptiones
juris et de jure, which absolutely prevent the
possession from being considered adverse, and
the expediency of which is very questionable, as
they do not see.n necessary for preserving right-
ful claims, and they greatly impair the healing
tendency of the Statutes of Limitation.
One of these rules is, that a possession which
began rightfully cannot be considered as having
become wrongful, that is, adverse as against the
rightful owner, by being merely continued after
the right of the party in possession has deter-
mined. It appears to us that it should be open
to a jury to find that adverse possession began
from the determination of the rightful estate of
the party.
Another rule is that in case of a lease, adverse
possession so as to bar the reversioner does not
commence till the expiration of the term. Where
rent is reserved on a lease, we consider it more
reasonable that the limitation should run from
the time when the rent began to be received by a
person claiming adversely, so that there shall not
be a new period of limitation from the expiration
of the lease. The receipt of rents and profits is
equivalent to the occupation of the soil ; the per-
son who is in the receipt of them can do nothing
more to establish his right, and the person to
whom they are denied is virtually dispossessed.
Where no rent, or only a nominal rent, is re-
served, very slight negligence can be imputed to
the reversioner in merely not requiring a recog-
nition of his title from the tenant, and in such
cases, till the expiration of the lease, we think
there should not be a commencement of adverse
possession to bar the landlord. Any rent less
twenty shillings a year may for this purpose be
considered nominal.
The anomaly, that when the younger brother
or other remote heir enters on the death of the
ancestor, his possession is not adverse to the
title of the elder brother, appears to lead to un-
certainty, and may be usefully abolished.
It would be desirable to permit a jury, under
certain circumstances, to find the fact of adverse

)ossession of the trustee being always in equity
die possession of the cestui qua trust. Nor
aught a trustee to be permitted to change his
character by purchasing the trust property from
himself, except under the restrictions imposed on
such a transaction by Courts of Equity. But
in all cases of constructive and implied trusts,
where the parties, though claiming adversely,
have been held in equity to be trustees, as in the
cases of purchasers for valuable consideration,
with notice of the trust, or purchasers, who at
the time of their purchase were, or shortly before
had been, in fiduciary situations with reference
to the property, as Commissioners of bankrupt,
issignees in bankruptcy, solicitors, surveyors and
other agents, lapse of time has always operated
in equity as a bar to relief, and in all such cases
we conceive that twenty years adverse possession
ought to be the utmost limit to equitable inter-
ference, allowing for the statutable
In this class may also he included the case of a
trustee who has purchased from his cestui qua
trust.
We think, that for the sake of certainty and
uniformity, these rules should no longer be left
in the breast of Judges ; and that it is expedient
that all equitable estates and remedies be included
in the proposed enactments, by making twenty
years, with allowance for disabilities, the limit
for equitable interference, except in cases of
undiscovered fraud, and actual or direct trust.
Where a mortgagee has been twenty years in
possession without any payment or promise, or
acknowledgement, to spew that the relation or
mortgagor and mortgagee continues, the right to
redeem is gone, but evidence of any acknow-
ledgment in writing or by parol, to the mort-
gagor or to a stranger, or any memorandum or
account found among the papers of the mort-
gagee, admitting or evidencing that he holds in
that character, interrupts the bar. For this rea-
son mortgage titles are insecure, and for a very
long period almost wholly unmarketable. When
the price of land is depressed, and the mortgaged
premises are not worth the mortgage money,
they are abandoned by the mortgagor. From
some local or general cause, or from actual im-
provements by the mortgagee, the value after
many years is increased. A bill to redeem may
then be supported by some expression the mort-
gagee is sworn to have used in conversation, or
some private note which he is compelled to di-
vulge, written by him, within twenty years. In
analogy to the salutary statute lately passed
(9 Geo. IV., -c. 14), respecting acknowledg-
ments and promises to revive debts barred by the
Statute of Limitations in personal actions, and
to render adults liable for debts contracted during
infancy, we propose that it should be enacted,
that where the mortgagee is in possession, the
bar in equity shall not be affected by any pro-
mise, statement or acknowledgment, unless it
were in writing, and made by the mortgagee or
the moegagor, or those claiming under the mort-
gagor.
We now proceed to the consideration of in-
corporeal hereditaments, and we begin with
rents. With respect to certain rents, there is
at present no limitation either as to title or ar-
rears, except that of fifty years, created by the
statute of 32 Henry VIII., which is held to pre-
clude any presumption of release or payment.
We think the limitation as to quit rents, as well
as rent charges, and all periodical payments
issuing out of land other than conventionary
rents between landlord and tenant, should be as-
similated to the limitation of actions as to the
land itself; that what is tantamount to a dispos-
session of twenty years, should bar the right to
the rent, and that the arrears, like other debts,
should be barred by the lapse of s:x years.
Where rent is reserved upon a lease under seal,
there is no limitation as to the arrears, although
in practice where there is no proof of acknow-
ledgement, a jury is directed to presume payment
after twenty years. We conceive that a positive
bar would be much preferable to a presumption
which may be rebutted ; and we see no reason
why annual payments should be allowed to be
sued for after the expiration of six years, whether
they may have been secured by deed or only
arise from a simple contract. We are disposed
to think that the statutes respecting landlord and
tenant might be beneficially consolidated and
amended, with the correction of some antiquated
doctrines of the common law on the subject, and
the addition of some provisions required by the
changes of the times, according to the precedents
lately set in other departments of the law, by
which we think the most essential service has
been rendered to the community. To this
subject we propose to give detailed attention
hereafter.
The law relative to the prescriptive right to
profits and easements to be taken in or enjoyed
over the soil of another, appears to us to require
amendment. This right can be only established
by what is deemed legal proof of an adverse en-
joyment of 640 years. By the ancient rule of
the common law, enjoyment of such a right was
to be proved from the time whereof the memory
of man runneth not to the contrary, or during
legal memory. Had this meant as far back
before the dispute arose as could be proved by
living witnesses according to the usual dura-
tion of human life, the rule would not have

We likewise think it would he proper to enact
that where one individual has several estates it
the same land, when his right of entry is barred
as to one estate it shall be barred as to all ; at
present he and those claiming under him have ;,
new period of twenty years on the vesting in
possession of each estatr.
By the present law, there is no limit to ac-
tions of escheat, of waste, or of dower while the
widow lives. If real actions are abolished, the
lord and the reversioner or remainder-man mina
of course pursue their remedy by ejectment
within twenty years, but for the dowress a spe-
cial enactment will be necessary, as till dower is
assigned she has no right of entry. Cases have
been stated to us in which upon sales consider-
alole delay and expellee have been occasioned by
searches to ascertain the deaths of women who
once were actually dowable, or cannot be shown
not to have been dowable out of the land. The
evil seems to be of frequent occurrence. There
can be no hardship in requiring the widow to
commence her suit within twenty years from the
death of her husband. As she can hardly be
ignorant of her rights, were it not for breaking
in upon the uniformity of the Jaw, a shorter pe-
riod even might without injustice be prescribed.
We propose limiting the recovering of arrears of
dower to six years.
In case of intestacy it has been decided that,
as to all rights occurring after the death of the
intestate, the Statutes of Limitation only begin
to run from the grant of administration. Hence
a right to a chattel interest in lands may be kept
alive, notwithstanding adverse possession, to the
expiration of the term, however long ; and in-
stances have occurred of serious practical incon-
venience from this state of the law. It seems
to us that, with respect to chattel interests in
land, the period of limitation should begin to run
from the time when the right of entry has arisen,
and might have been acquired by taking out
letters of administration. The next of kin and
creditors of the intestate, we think, cannot justly
complain, if for twenty years they have neglected
their rights ; and great injustice might be done
to the party in possession by allowing a stale
claim to be brought forward after a longer lapse
of time.

We here take occasion to observe that the ob-
jections which may be advanced to our proposal
of abridging the longer periods of limitation, as
well as of abolishing fine and non-claim, will be
materially lessened if a general registry shall be
established. The means of knowing the state of
the title to any property will then be afforded to
every claimant, and long delay in prosecuting -a
claim will be both less likely to happen and less
entitled to indulgence.

The various Statutes of Limitation which
have been hitherto passed in this country (with
the exception of an enactment in 53 George 111.,
c. 127, s. 5, confining suits for recovering the
value of tithes to a period of six years) apply
only to legal remedies, and therefore have no
direct operation on equitable estates or interests.
But according to the maxim that " Equity fol-
lows the Law," Courts of Equity, in analogy to
the Statutes of Limitation, have laid down rules
by which they have refused relief, where if the
estate of the claimant were legal instead of equi.
table, lapse of time would be a bar to a legal
remedy. They have disregarded the periods of
sixty, fifty, and thirty years allowed for bringing
writs of right and writs of entry, and (as it is
now generally understood) have adopted as the
limit of their relief the period of twenty years
given b) the statute of 21 Jac. 1, c. 16, for
making an entry on lands or bringing an eject-
ment,—adhering likewise to the statutable pro-
, visions respecting disabilities,--but excepting
certain cases affected by fraud or trust.
The question arises whether the direct opera-
tion of the Statutes of Limitation should still be
confined to legal remedies, or whether there
should not be express legislative enactments upon
this subject applicable to equitable estates and
interests. As adverted to above, the Legislature
has already begun to apply limitation to suits in
equity, and we conceive that this system may
now be advantageously acted upon. When the
ancient Statutes of Limitation passed, equitable
jurisdiction was of small account; but a very
large proportion of the real property of the
country is now subject to that jurisdiction, and
there seems no sufficient reason why the regula-
tion of such property should continue to be left
to the variable discretion of a Judge. A case
very recently occurred where an estate subject to
a mortgage in fee being in settlement, with an
ultimate limitation to the right heirs of a parti-
cular person, a stranger, on the expiration of the
previous estate, entered, claiming to be entitled
under the limitation, and he and his son upon
his death, continued in quiet possession, paying
interest on the mortgage, for twenty years.
After a difference of opinion between Judges of
great eminence, it was held that the devisee of
of the person really entitled under the limitation
was barred by lapse of time. This decision,
although generally approved of, has been cen-
sured by some, and the doctrine founded upon
it may be qualified in subsequent cases. Hence,
without a positive law to refer to, some uncer-
tainty and uneasiness must prevail, and prac-
tising lawyers sometimes find it impossible to
give a confident opinion upon titles submitted to
them.

It appears to us that cases of fraud and trust
may be introduced as exceptions to the general
enactment respecting the period, within which
equitable relief may be granted, and that con-
sistently with the legislative rule upon the sub-
ject, power may remain in Courts of Equity to
enforce the performance of direct trusts, of what-
ever standing, and to relieve against long con-
cealed fraud when it is discovered.

It is generally said that no length of time is a
bar to relief in equity in cases of fraud and trust ;
but this proposition, we apprehend, is to be con-
fined to cases of undiscovered fraud, aNd actual
or direct trust. After the fraud is known, there
is no reason why subsequent lapse of time should
not be effective as a bar. In cases of actual or
direct trust, as where the trust remains in the
trustee himself, who has undertaken the trust,
or in persons claiming through or under him
without valuable consideration, no lapse of time
can or ought to be a bar to relief, as there cannot
in such a case be any adverse possession, the

been unreasonable. But the limits of legal me- I
mory %ere formerly fluctuating. They were
long made to depend upon the period for bring- ;
ing a writ of right, which till 32 Henry VIII., ,
was not any certain period before the commence-
ment of the suit, but dated from some historical
event fixed from time to time ; as the beginning
of the reign of Henry I.; the return of King
John out of Ireland ; the journey of King
Henry 111. into Normandy, or the coronation of ,
King Richard I. The last epoch being fixed by
the Statute of Westminster 2, c. 46, as the time

back asliving
sumption of an enjoyment ccom the remote era.
In some cases, however, the practical remedy
fails, and the rule produces the most serious mis-
chiefs. A right claimed by prescription Js al-
ways disproved, by spewing that it did not or
could not exist at any one point of time since the
commencement of legal memory, or although it
originated before the commencement of legal me-
mory, that at some subsequent period the ser-
vient tenement, or that over which the right is
exercised, and the dominant tenement, or that to
which the right is attached, once belonged to the
same individual, whereby the prescriptive right
was extinguished. Amidst these difficulties, it
has been usual of late, for the purpose of sup-
porting a right which has been long enjoyed,but
which can be shown to have originated within
time of legal memory, or to have been at one
time extinguished by unity of possession, to re-
sort to the clumsy fiction of a lost grant, which
is pleaded to have been made by some person
seised in fee of the servient to another seised in fee
of the dominant tenement. But besides the
objection of its being well known to the Coun-
sel, Judge, and Jury, that the plea is unfounded
in fact, the object is often frustrated by proof of
the title of the two tenements having been. such
dint the fictitious grant could not have been
made in the manner alleged in the plea. The
contrivance therefore affords only a chance of
protection, and may stimulate' tiro adversary to
an investigation for an indirect and inischievouS
end of ancient title deeds, which for 0-41 fair"
purpose have long ceased to be of any use.
We propose that legal memory, with respect
to this species of property, shall always be 161;03
to be sixty years ante litem motam, or rather
that adverse enjoyment during this period oiany
profit or easement in or over the soil of another,
shall be conclusive evidence of a right to such
profit or casement. It will still be for a jury
to determine, in case of dispute, whether the
right has been exercised conventionally or ad-
versely, and there will be no greater danger than
at present of a licence or limited grant becoming
the foundation of a prescriptive right. But it
must not be open to the part) denying the.right
to contend that from leases or other particrdat
estates it could not have been lawfully granted by
the occupier of the soil within the sixty year:;:
It can only be in very rare cases that the owner
of the fee, or at least an estate of inheritance, has
not been in possession during some part of such
a period ; and even in that case he might have
put an end to any usurped right by bringing au
action on the case for an injury to his reversion
by the exercise of it. Without making adverse
enjoyment during the new period of limita-
tion conclusive evidence of the right, compa-
ratively little advantage would arise from the rc,
duced limit of legal memory.
The disabilities of the parties against whom
this prescription is to run must likewise 1
regarded.
But we are of opinion, that with respect both
to profits and easements a shorter period, viz.
twenty years, should also be established as afford-
ing presumptive evidence of right, liable to be
rebutted by proof, that during that time the set-
vient tenement was occupied under a lease, or
was held by a tenant for life, or by a person
under disability. The effect of the twenty years
enjoyment should not we think, be defeated by
the existence of an estate tail. At present the
exercise of a right of common or the use Of A
' way or of water, or any easement for twenty yeatgi
constitutes a prima facie case to establish the
right ; and the rule may be continued without.
inconvenience. But we think the necessity of
alleging the grant of an easement in pleading
might in all cases be dispensed with. Thew
right to an easement, generally speaking, is in
truth acquired, not by any deed, but by the ac-
quiescence for a given period of a party compe-
tent to interrupt the exercise of the right ; and
this is now in substance considered equivalent to
a grant though no grant be executed. In a de-
claration for disturbance of an easement it is
enough to state, that the plaintiff is possessed of
the tenement, and that the right is appurtenant to
it. When an action is brought for any thing
done in the exercise of the right, there seems no
sufficient reason why the right must be traced to
its origin, or why it should not be permitted in
the plea as well as in the declaration to allege the
defendant's possession of the tenement, and that
by reason thereof he is entitled to the right ID;
appurtenant. The party should not be put under
greater difficulties, if he be in possession, and au
action is brought against him for exercising the
right, than if he be out of possession, and he
brings an action for the obstruction. The evi-
dence is the same in both instances, and we think
the party who claims the right, whether plaintiff
or defendant, should be allowed simply to allege,
that he is entitled to it as belonging to the tene-
ment in respect of which it is claimed, and to
establish it presumptively by proving an adverse
enjoyment of twenty years, and conclusively by
an adverse enjoyment of sixty years. Prescrib-
ing in a que estate, that is in right of the owner
of the fee, and those whose estate he has,
and tracing title to the possession of the domi-
nant tenement from the owner of the fee would
thus be dispensed with, and records in actions of
trespass to try these rights materially shortened
and simplified. Where there is an actual grant,
it may be rendered available as now in pleading
and in proof.
While on this subject we may suggest the
propriety of enacting, that where a right to land,
or any interest in it, is iii dispute, it shall in no
case be necessary to plead the Statute of Limita-
tion, either affirmatively or negatively ; and that
upon proof of the facts, the title shall, to all pur-
poses, be considered as rightfully and absolutely
gained or extinguished by the operation of the
statute.

It seems to us also that legal memory might
be reduced to sixty years, with respect to pre-
scriptive obligations arising out of the possession
or tenure of lands, such as to make fences or to
repair roads. Evidence of antecedent usage
may be admissible on either side ; but if the jury
believe that the act has been done as often as
occasion required, for a period of sixty years, on
the footing of obligation, this ought to be suf-
ficient to establish the obligation, without con-
sidering whether it did or could exist in the reign
of Richard I.

after which seisin must be proved to maintain a It has been suggested that exceptions ought
writ of right, it was from thence adopted as the to be introduced with respect to casual rights
commencement of legal memory. When 32 and obligations the occasions for exercising or
Henry VIII., provided that there should be a enforcing which very rarely occur ; but rights
progressive period of limitation for writs of right, and obligations which remain dormant for sixty
legal memory ought, preserving the existing years, and do not rest upon express contract,
analogy, to have been considered as intending a to be proved by written documents, may pro-
period of sixty years next before the dispute bably be entirely disregarded as more likely
arose. But unfortunately the analogy to writs of to cause litigation than to produce any real
right was dropped, and the reign of Richard I. benefit.
was adhered to, and is considered the commence- The extinguishment of rights and obligations
ment of legal memory for all purposes at the pre- by nonuser, will require corresponding rules,
sent day. The practice of the Courts has created which seem much preferable to the fiction of non-
a remedy to this inconvenient and absurd rule in existing releases and surrenders.
ordinary cases; for proof of enjoyment as far Whether legal memory could be reduced to a