The Sun.
London, England, 1829-07-02 00:00:00

LONDON, THURSDAY EVENING, JULY 2, 1329.

HAY AND CORN HARVEST.
RENJAMIN EDGINGTON, No. 5,
a-10 TOOLEY-STREET, (who supplied the whole of
the tents, coverings, flags, and decorations at the Horti-
cultural Fete) has now on hand a large quantity of
SECOND-HAND CANVAS, suitable for rick-cloths,
with pole, &c., complete, at a very reduced price. The
whole are in good preservation, having only been used a
few days by the Horticultural Society at their late fete.
Marquees, tents, poles, &c., of every description.
Orders, by post, to be addressed iii full, " Benjamin
Edgington, 5, Tooley-street, Southwark."

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pRACTICAL LOGIC; or, Hints to
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WESTMINSTER REVIEW.

rrHE WESTMINSTER REVIEW, No.
21, was published on the 30th of June, contain-
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torical Records of the Peruvian Indians-16. Greatest
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No. 22 will he published on the 30th September, and
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DR. JAMES'S FEVER POWDER AND ANALEPTIC

PILLS.
THE FEVER POWDER is allowed to be
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and 245.

The ANALEPTIC PILLS, from their influence in
exciting the natural secretions, are an excellent Alterative
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Mr. JAMES thinks it necessary to inform the Public
that Messrs. Newbery, the late Agents of his Grandfather,
his Father, and himself, are now vending articles of their
own composition. under the name of Dr. James; and that
he has appointed in their stead, as sole Agents, Messrs.
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Observe the Signature of It G. G. James on the Label.

SHIPPING INTELLIGENCE.

PARLIAMENTARY PAPER.

REPORT OF THE COMMISSIONERS ON THE
. LAW OF REAL PROPERTY.
(Continued from our Paper of Alonday.)

The power, which a tenant in tail in remain-
der has of acquiring a base fee by means of a
fine, is open to the objection that it enables an
extravagant youth to anticipate his expectations
upo► . very disadvantageous terms, and is open to
the still more serious objection, that the estate
may be palmed upon an innocent purchaser as
an estate in fee simple, its origin being in course
of time lost sight of, and at last the issue in tail
may fail, and the remainder inan may at a remote
period recover the estate. This last objection
will be removed if the alterations proposed by
us in that part of our Report which relates to
the Limitation of Actions are adopted. On the
other hand there are cases in which this power
has operated beneficially ; it has afforded sup-
port, to a tenant for life who was rapacious, or
who -refused altogether to concur •in barring the
entail, and a tenant in. tail in remainder, having
tbc. means of making a provision for himself,
tiiiugh an imperfect one, has often made a better
bargain with the tenant for life, than he could
otherwiSe have done. We, therefore, under all
the circumstances, consider it advisable to allow
a tenant in tail, where there is a prior beneficial
owner, without the concurrence of that owner, to
bar his estate tail, and acquire a base fee in the
same manner as a tenant in tail in remainder can
now do by means of a fine. This will render it
necessary to give the tenant in tail after he has
acquired a base fee a power, by means of the
substitute for fines and recoveries, to make a dis-
position for expanding the base fee into a simple,
as he can now do under the existing law by
means of a recovery. It will also be necessary
to make the like provision for expanding base
fees, existing at the time when fines and recoveries
are abolished.

We propose that whenever a legal estate tail
only, or a legal estate tail and remainders over,
shall have been barred by means of the substi-
tute, and the fee thereby acquired shall have been
conveyed by way of mortgage, or in any other
manner so as to leave an equity in the person
barring the estate tail, such equity should be
vested in such person for an estate of the same
extent as the estate which he acquired at law
by the substitute, and we also propose that, by
means of the substitute, equitable estates tail and
remainders thereon should be barred, and equi-
table base fees should be expanded, so as to
leave the law in these respects as it now is, under
fines and recoveries.

In taking into consideration what would be
the best mode of barring entails on the abolition
of fines and recoveries, it appeared to us desir-
able, that every facility should be afforded to the
tenant in tail of unfettering his lands, and that
the substitute should be available at any time ofthe
year, and should not be incumbered with formali-
ties, as there would then be less liability to error,
and titles would be relieved from the doubts
which frequently _occur, as to whether limitations
are in tail or in fee, and we incline to the opinion,
that every disposition by a tenant in tail should,
but in every case with the concurrence of the prior
beneficial owner, if there should be one, be made
by any conveyance, to have the same effect as if
by a tenant in fee simple, and that in every case
where there should be no prior beneficial
owner, the tenant in tail should have the full
power of disposition by will, as if he were tenant
in fee simple. Strange as the proposition to
enable a tenant in tail to devise by will may at
first sight appear, it is only enabling him to do
directly what he may do indirectly, by previously
going through a formal process, the difference be-
tween the two.modes being matter of mere form
and not of substance. Desirable as it would be
not to incumber the substitute with formalities,
yet there is an advantage in having it inrolled,
because the issue in tail; and the remainder-men
will then have the means of ascertaining whether
they are barred or not, and thereby litigation
may be avoided, as is frequently the case at pre-
sent, in consequence of his recovery being a mat-
ter of record, and particularly when the convey-
ance to make the tenant to the prcecipe is in-
rolled. We therefore think it advisable that the
substitute should be inrolled in the Court of
Chancery within a limited time, and that any
deed by which the beneficial owner shall give his
concurrence separately from the substitute should
be inrolled at the same time ; and we recommend
that the inrollmcnt of the substitute should ex-
tend to every case, except that of a lease for
twenty-one years in possession, the inrolment of
which, we think, should, for the protection of
lessees, be dispensed with. As the inrolment of
a will within a limited time after the death of a
testator, solely for the purpose of barring an en-
tail is novel, and likely to be omitted in many
cases, unless there was a general law enforcing
the inrolment of all wills, we have thought it ad-
visable for the present to abandon the idea of
allowing tenants in tail to unfetter their lands by
will.
_lf a general registry should be established,
and all deeds and wills should be registered with-
out distinction, it would be then unnecessary to
incumber the substitute for fine and recoveries
with any peculiar formalities, and a tenant in tail
might then have a power of disposition by will
as well as by deed.
It may be said that by giving a tenant in tail a
power to bar the remainders over at any time of
the year, the rights of the remainder-man might
in some measure be prejudiced, and therefore
that the substitute should be available only at
those periods when a recovery can, according to
the present law, be suffered, so that the remain-
der-man might have the benefit of the chance of
the tenant in tail dying without issue before he
has availed himself of the substitute ; but as this
event can only occur in very fewcases, the chance
of the remainder-man is not worth taking into
account, and is not to be set up in competition
with the advantage of not incumbering the sub-
stitute with any restriction as to time. The rule
requiring that a recovery should be suffered only
at a particular period, is purely technical, and
was Not fixed with a view to protect the remain-
der-man, and is wholly inapplicable to the sub-
stitute ; we therefore recommend that a tenant
in tail should have the power of availing himself
of the substitute at any time.
If it should be thought advisable, upon the
abolition of fines and recoveries, to make good
the loss to the revenue in consequence of the
diminution of the stamp duties) and to grant

PRICE 7D.

compensations for fees of officers and for aliena•
tion fines, and to raise the fund fo: those pur-
poses by means of a stamp duty, it may appear
reasonable at first sight that the duty should
be imposed on the substitute ; but we con-
sider it advisable for the security of titles,
that the substitute. should be clogged .with
as few formalities_ as possible. The amount
of the stamp duties on fines and recove-
ries can be ascertained at the Stamp Office.
From the returns made to us of the number of
fines and recoveries in the Court of Common
Pleas at Westminster for the hist-three years, it
would seem that the stamp dutici;payable for the
fines and recoveries in thrt Court cannot in any
one year exceed 12,0004 or thereabouts. It ap-
pears from what we have already observed, that
on the average of the last three years the fines
payable at the Alienation Office on fines and re-
coveries in the Court of Common Pleas at
Westminster, amounted to 13,4491. 6s. Bd. per
annum, and we have ascertained that the fees of
the officers of that Court do not exceed upon the
average, exdusive of those fines,,lo,ooo/. per an.
num. The amount of the alienation fines; payable
in respect of fines and recoveries in the Courts of
Great Sessions in Wales, and in the Courts of the •.
Counties Palatine, and of the fees of the officers of
those Courts, we have not been able to ascertain, •
but they cannot amount to a large sum. There-
fore we do not anticipate any difficulty in rais-
ing the sum to supply the diminution -in the
stamp duties, and for the compensations.
_

According to the existing law a tenant in tail,
if he acquires a base fee by means of a fine lets
in upon the qualified estate so acquired all charges
and estates previously made and created by him ;
and if he acquires a fee simple by means of a reco-
very, lets in such charges and estates on the fee sim-
ple. We propose that the substitute should have the
same operation, except as against purchasers for
a valuable consideration without notice ; but that
as against such purchasers the prior charges and
estates shall have no greater validity than they
would have had against the issue in tail or re-
mainder-men, giving to the purchasers the same
right of avoiding such prior charges and estates
as the issue or remainder-men would have had ;
this we think the proper measure of both parties,
unless the establishment of a general registry
shall make the point of notice unimportant, for
we see no reason why such purchasers should
suffer from want of proper precaution and dili-
gence on the part of any person having a claim
on account of any previous charge or estate,
which he may have neglected to secure by avail-
ing himself of the substitute which can be so
readily resorted to.

We recommend that the substitute for fines
and recoveries should in every case (except that
of a tenant in tail, with the immediate remainder
or reversion to himself in fee, who, where there
may be a prior beneficial owner, may happen to
avail himself of it without his concurrence),
have the effect of not letting in the charges and
estates created by any person claiming any estate
or interest, to take effect on the determination
or in derogation of the estate tail to be barred,
or of the base fee, if the same shall have been
previously acquired ; and that it should in this
respect have precisely the same operation as a
recovery. In the excepted case, the substitute
will produce the same effect as a fine levied by
a tenant in tail in remainder, with the immediate
remainder or reversion to himself in fee, and will,
in accordance with the law as it now stands, let
in all charges and estates affecting this ultimate
remainder or reversion. If he should be desirous
of preventing this mischief; he must procure the
concurrence of the first beneficial owner. He
can now prevent it by suffering a recovery.

We recommend that the 39 and 40 Geo. 111.
c. 56, and 7 Geo. IV. c. 45, should be repealed,
and that the substitute for fines and recoveries
should be made applica►ale to money to be laid
out in land to be entailed. For we can see no
reason why money so circumstanced should not
be unfettered by the same process as the land
itself would be if purchased. Fines and re-
coveries could not, from their nature, be made
to apply to money, and consequently an applica-
tion to the Court of Chancery was the expensive
expedient resorted to ; but the same objection
does not apply to the substitute. When by
means of the substitute the money is discharged
from the entail and remainders, or, as may some-
times happen, from an entail only, the trustees
will, if the money should be discharged from
all interests and charges subsequent to the entail,
and there should be none such subsisting, either
upon the interest in tail, or prior thereto, pay it
over immediately to the person barring the entail,
and will, if there should be any interests and
charges still subsisting, hold it in trust for the
person barring the entail, and the persons en-
titled to such interests and charges. If the
money should be in Court, it may be paid upon
application to the Court, on producing evidence
that the person barring the entail is entitled to
receive it.

We propose as the substitute for barring en-
tails in lands held by Copy of Court Roll, a
surrender by the tenant in tail, and that the
substitute in this case should have the same ope-
ration as the substitute in regard to lands not
held by Copy of Court Roll, and that if the
concurrence of the first beneficial owner should
be signified by a deed, such deed should be
presented at the Lord's Court at the time when
the surrender is presented or made.
For the reasons which we have already stated,
we recommend that tenants in tail, ex provisione
viri, should have the power of barring their
estates tail.

We propose that the substitute should not
extend to tenants in tail after possibility of issue
extinct, nor to tenants in tail who are now pro-
hibited by the 34 and 35 Hen. 8, c. 8, or by
any other statute from barring their entails, as
we do not feel ourselves authorised to recom-
mend any alteration in the law in this respect.
For the benefit of creditors, and to diminish
the number of base fees, we recommend that
whenever an estate tail shall, under the Bank-
rupt Act, have been converted into a base fee
by the bankruptcy of a tenant in tail, the base
fee shall, immediately on the determination of
the prior estates, be expanded into a fee simple.
And for the like reason we recommend, that a
base fee vested in a person at the time of his
bankruptcy, who would have been tenant in tail
if the base fee had not been created, shall, on the
determination of the prior estates, but subject to;

any clwges and estates ;.ff,.ctitig the base Ice, he
expanded itto a fee simple.ln •
accordance with the present law, we pro.:
lose that the estate to be acquired by the sub-.
-.titute, and also the estate to be acquired by the.
expam.ion of a base fee afier bankruptcy, shall be-
mum:ens:trate with the estate which would have.
been acquired by a recovery.
To avoid the mischief arising from a fine or
recovery of lands, of the tenure of ancient de- •
mesne, being, levied or suffered in the Lord's
Court afier a fine or recovery has been levied or
suffered in the Court of Common Pleas at West-
minster, which has not been reversed by the .
Lord, we recommend that the fine or recovery
in the Lord's Court shall not be deemed void, .
but shall be considered as having restored the
tenure. In that part of our Report which relates
to the Limitation of Actions, we propose that
the writ of Disceit shall be abolished. The
effect of this will be, to deprive the Lords of
Manors in ancient demesne, of the means of re-
versing fines and recoveries levied and suffered .
in the Court of Common Pleas at Westminster,
of lands held of those manors, and of restoring
the lands to their ancient tenure, and to relieve .
the titles of the tenants of those manors who
may have levied or suffered such fines or reco-
veries froth the mischiefs which, as we- have al- ,
ready poirtted out, would arise, if such fines or ,
recoveries were reversed. To prevent the injus-
tice which it may be considered would be done
to Lords by being deprived, by the abolition of
the writ of disceit, of the means of restoring fho
lands to their ancient tenure, we propose that
all fines and .recoveries which within the last
twenty years have been levied and suffered in the .
Court of Common Pleas at Westminster, of
lands of the tenure of ancient demesne, shall be
void as against the Lord, but shall be as good-,
in all other respects as if levied or suffered in the
proper Court. We have fixed the period of
twenty years, as that is the general period of li-
mitation proposed by us in that part of our Re-
port relating to the Limitation of Actions.
With regard to the alienation by a married •
woman of her real estate, the only utility of the
fine appears to consist in its providing for her
separate examination, and placing this examina-
tion under the superintendence of a Court of
,Justice, so as to avoid all future question as to
the fact of the examination having been properly
taken.

As this examination affords undoubtedly some
protection (though perhaps in many cases an in-
sufficient one), and it appears to he thr only
protection which can be afforded without impo:i-
mg too great a restraint on alienation, we think
that very nearly the same mode of examination
should be continued, although we do not think
that a line is necessary for the purpose.
What we propose is, that standing Commi,i-
sioners shall be appointed for each county by the
Chief Justice of the Common Pleas ; and that
a married woman shall, upon a private examina-
tion as to her free consent by one of the Judges,
a Master in Chancery, or any two of the Com-
missioners to be so appointed, be allowed, with
the concurrence of her husband, to dispose ()flier
real estate by deed as if she were a femme sole.
The deed by which the disposition is made will
have indorsed upon it by the Judge, Master in
Chancery, or Commissioners, a certificate of th,,:
fact of the examination having taken place ;
corresponding certificate, identifying the deed,
will be transmitted to the proper officer of the;
Court of Common Pleas, accompanied by such
an. affidavit • as that Court may require ; the offia
cer, on ascertaining their -authenticity acid rep•.
larity, will inrol the certificate and file the affi-
davit, and thus the proceeding will be complete.
An office copy of the inrolled certificate, which
will accompany the deed, will furnish the evi-
dence of its regularity. When a married woman
is abroad, and in some other cases, a special
commission from the Court of Common Pleas
to take her examination may issue as at present.
It appears to us, that by these means all that
is now accomplished by a fine will be equally
well accomplished, and in a more simple manner.
Our reason for requiring the inrolment of the
certificate is, that by these means the examina-
tion will be still under the superintendence of
the Court, and the sanction of the Ceurt being
given to each examination, any future question
as to its having been properly taken, will be pre-
vented. We propose, that the Court shall still
have the power which it now has of making
orders with respect to the mode of taking the
examination, in order that such provisions may
from time to time be made as experience may
suggest. It will be the duty of the officer in
each instance, to see that these orders have been
complied with before he inrols the certificate.
If any doubt arises special application will be
made to the Court.
As the sanction of the Court will be thus
given by the inrolment of the certificate, we
think that the inrolment should be essential to
the validity of the transaction ; at the same time
we think, that when the deed has been properly
executed and acknowledged, it should be consi-
dered as complete, subject to the condition of
the certificate being afterwards duly inrolled, and
that the deed should . therefore take effect from
the time of its execution and acknowledgment,
and not from the time of the certificate being in-
rolled.

What we have proposed with respect to land,
' may, we think, also apply to money to be laid
out in the purchase of land. Whether the
power which we have proposed to give a married
woman over her real estate may not be extended
to reversionary and contingent interests in per-
sonal estate, is a matter, although not strictly
within our province, yet so nearly connected
with the subject of this part of our inquiries, and
one on which, from some recent decisions, so
much difficulty has been felt, that we may per-
haps, without impropriety, suggest it as deserv-
ing consideration.
We deem it proper to mention as discreditable
to the law, the attendant doctrine of an entry to
avoid the fine—an idle ceremony required to
be gone through by the rightful owner of an
estate, of which a fine with proclamations has
been unjustly levied, before he can commence
proceedings to recover his property, and esta-
blished as the point of time, from which, when
he has recovered it, he is entitled to the rents
and profits. This ceremony is supposed to give
notice of the adverse claim to the person in pos-
session ; but it is equally a fiction with the notice
supposed to be given by the proclamation to
the rightful owner, and in practice, the party
who gives in evidence a fine with proclamations
never knows whether his opponent can prove an
entry to avoid it.
If twenty years should be established as the
general period of limitations, we conceive the
principle that prescription does not run against
persons incapable of suing must be preserved,
although it might be disregarded if a longer
period were preferred. But the searches upon
alienation, which the doctrine of disabilities
renders necessary, appears to us to be a less

tki
,extending in every case
tie pe if litniaridtrto such a limit as could
if disabilities were disre-
garded.
now recognized are infancy,
coisiftil aCy, absence beyond seas, and
prisonment. The first four, we think, should
continue. With respect to Innacy, it has been.
urged, that in analogy to the pnayisions of some
foreign codes, the period should begin to run
from the appointment of a committee under a
commission of lunacy ; but it seems to us, that
rights might be lost from the negligence or col-
lusion of a committee as well as of a guardian or
a hurland.

At present, the period does not begin to run
against a person resident in Ireland, although he
is likely to be equally cognizant of his rights,
and equally capable of enforcing them, as if he
were domiciled in England. We propose, that
the privilege allowed to absence beyond seas
shall be restricted to absence from the United
Kingdom of Great Britain and Ireland, includ-
ing the islands of Guernsey, Jersey, and Alder-
ney, and the Isle of Man.

The disability of imprisonment we think
should be entirely abolished. When it was
established, long and rigorous confinement in
distant gaols was not uncommon ; but now
imprisonment, whether under civil or criminal
process, is of short and defined duration ; and
during its contixuance the party has ample means
of communication with friends and professional
advisers.

We recommend that the period allowing for
entering or bringing an action, after disability re-
moved, should continue to be ten years.
Although it has always been held that if the
period once begins to run, it shall run on not-
withstanding disabilities subsequently arising ;
and that the claimant who is heir to a person
dying under disability, even if under disability
himself when the right accrued to him, if he
would avail himself of the disability, must bring
his action within ten years after his disability is
removed, it has never been expressly determined
whether the operation of the Statute of Limita-
tions shall be arrested during successive disabi-
lities, the dicta of the Judges being contradic-
tory upon this point. In accordance with the
sentiments of Lord Ellenborough, and the
Judges of the King's Bench, we think it should
be declared that successive disabilities are Lot to
be regarded ; and that if ten years or more have
expired from the time when the right accrued to
a party dying under disability, ten years only
shall be allowed to the heir, whether under dis-
ability or not. It is exceedingly improbable
that there should be a succession of persons ne-
glecting or betraying the interests of others con-
fided to them ; and the risk of this seems a much
less evil than the insecurity to titles which a con-
trary rule would occasion ; for it is easy to ima-
gine infancy, coverture, lunacy, and absence
beyond the seas, so to follow one another with
respect to a particular line of heirs, that by suc-
cessive disabilities the period of limitation might
be indefinitely protracted ; and it is to be re-
membered that in every transaction with a pur-
chaser, evidence may be required to disprove this
supposable case.
The existence even of the privilege during a
whole life, however long, with an addition of ten
years, is an evil of no inconsiderable magnitude ;
and as what is termed disability does not amount
to absolute incapacity, but only to a degree of
infirmity, and, as after a certain lapse of time
the hardship of putting the party in possession
to defend his original right, exceeds the hard-
ship of barring the claim of the party out of pos-
session, notwithstanding such infirmity, we think
that there should be a period of adverse posses-
sion, after which all claims against which the
possession was adverse shall be barred, notwith-
standing any disabilities whatever ; and for this
purpose we propose a period of forty years.—
Such a provision does not seem so great an in-
fringement upon the maxim in favour of persons
incapable of suing, as the established doctrine,
that when the statute has once begun to run, it
runs on notwithstanding a subsequent disability ;
according to which, if a father is disseised, and
immediately dies, leaving a new born son his
heir, the heir is barred before he is of age. This
latter doctrine indeed we scarcely should have
-entured to propose, were it not established law.
Yet, notwithstanding its apparent rigour, we do
lot recommend any alteration of it, because we
nave not been able to learn any instance in which
it has practically worked injustice.
In defence of the proposal of an absolute
,eriod of limitation disregarding disabilities, we
would observe that it is exceedingly improbable
a valuable right should have accrued to a married
woman, or to a lunatic, or to a person beyond
seas, and should have been allowed to remain
dormant for a period of forty years. On the
other hand the danger must not be overlooked,
that the person in possession, by the impaired
memory of witnesses, by their death, and by the
loss of documents, may be deprived of the means
which he may have once possessed of establish-
ing his right.
We may observe, that from the inquiries we
have made, the exceptions in favour of disabili-
ties do not appear to be of much practical im-
portance to persons in whose favour they are pro-
vided. We have reason to think that the rights
of persons labouring under disabilities are by no
means usually neglected. The circumstance of
its being yet undecided, whether a succession of
disabilities shall be allowed, tends powerfully to
show that when rights have accrued to persons
under disability, they have been enforced during
the usual period of limitation ; and consequently
the proposed abridgment of the privilege in faci-
litating alienation, will be almost purely beneficial.
It has been suggested, that in analogy to the
law of Scotland, and of some foreign states,
founded upon the usucapio of the civil law,
snother and still longer period of limitation
hould likewise be established, after which en-
ssyment by a person as proprietor under a con-
veyance, regularly purporting to pass the fee
simple, should give an absolute title, without re-
garding when the right of the adverse claimant
may have accrued ; but such an enactment seems
unsuitable to this country, where estates for life
and long terms of years so generally prevail ; it
might encourage the fabrication of false titles ;
and it would be a dangerous departure from the
general rule, that possession shall be regarded as
adverse to any particular right only from the time
when that right accrued in possession.
Yet to this general rule, though founded on
obvious principles of justice, we have to propose
an exception from which we anticipate much
benefit to the community. One of the chief in-
securities of titles arises from the risk of estates
tail, in remainder or reversion, coming into pos_
session after prior tenants in tail and their issue
have been barred by adverse possession, or per-
haps for a long period have lost all interest in
the premises by the creation of what is technically
called a base fee, that is, an absolute estate of in-
heritance alienable like a fee simple during the

continuance of the issue of the tenant in tail, but
which will expire on the failure of issue, so as to
give effect to the i-einnittAer:, over.
6-6 BE CONTINUED.)