The Sun.
London, England, 1829-06-26 00:00:00

LONDON, FRIDAY EVENING, JUNE 26, 1829.

ANDERSONIAN UNIVERSITY.

On Monday the quarterly general meeting of the
Trustees of the Andersonian University was held
in the great Hall of the University Buildings,
George•street, Glasgow, James A. Anderson, Esq.,
President of the University, in the Chair. After
the reading of the minutes of the Directors for the
last quarter, a report was laid before the meeting of
the progress of the buildings, both as regarded the
interior and exterior alterations and improvements,
which referred with satisfaction to the increasing
interest felt by the friends of the University in the
extension of the. museum and library, not only by
large and valuable donations, but by interesting
others in the same good cause, and concluded by
giving a list of recent donations to the University.
The CHAIRMAN then proposed the thanks of the
University to Mr. Smith, of Jordan-hill, for the
very great attention he has paid to the interests of
the University, and the deep interest he takes in its
prosperity, which was carried with much applause.
Mr. SMITH made a neat reply, and said that
though what he gave were sometimes articles of
value to him in his studies or pursuits, he derived.
some gratification from giving them to an institu-
tion'so eminently calculated to be beneficial as this
was; and besides, he was persuaded, that while in
the University they would be useful to others, they
would still be not less useful to himself.

The Trustees then proceeded to the election of
Professors for the Chairs of the principles of Paint-
ing and Sculpture; of Mineralogy and Nattiral His-
tory ; and of French and Italian; and on the re-
commendation of the Directors, made choice of
William Ross, Esq., jun., of Howard•street, Strand,
London, as Professor of the principles of Sculpture
and Painting; Dr. Scouller, as Professor of Mine-
ralogy and Natural History ; and B. Jourdan, Esq.,
as Professor of the French and Italian Languages.
The Treasurer then announced the state of the
funds, from which it appeared that the University,
after borrowing the sum necessary to complete the
improvements, will have a large annual surplus for
extending the University, or reducing its compara-
tively small debt.

After a vote of thanks had been given by accla-
mation to the managers of last year for their exer-
tions, the meeting proceeded to ballot for managers
for the ensuing year, and the scrutiny ended by de-
claring the managers of last year re-elected.
The Trustees then left the great hall, and pro-
ceeded to inspect the fine new rooms, in which the
apparatus is displayed at one view—in compartments
enclosed with glass doors, and arranged according
to the history and distribution of physical and chy-
mical discovery. 'With these, and the handsome
library, which is gracefully supported by fluted
columns, and ornamented with fine paintings and
busts of literary and scientific characters, the Trus-
tees were highly gratified. Arrangements are in
train to afford regular access for viewing the Institu-
tion, under the charge of a librarian, to the numer-
ous parties of intelligent and opulent strangers who
now make the visit to Glasgow one of the most
interesting objects of Scottish tour.

EDINBURGH.

HIGH COURT OF JUSTICIARY.
SCRUPLE; OF CONSCIENCE.

In the course of a trial for uttering false money,
a Mrs. Turnbull was called as an evidence ; but
on being asked to take the oath said, ." I am ready
to tell the truth, but I will not swear." _

LORD JUSTICE CLEttx—Are you a Quakeress, or
what is the ground upon which you refuse to take
the oath ? Mrs. Turnbull—l am not a Quaker. I
follow Christ's rules. Christ says, " Swear not
at all."

LORD JUSTICE CLERK—We all abominate profane
swearing, but the law says you must take the oath.
What church or body of Christians do you attach
yourself to ? Mrs. Turnbull—A Christian body.
LORD JUSTICE CLERK—Who preaches ? Mrs.
Turnbull—No person in particular.
LORD JUSTICE CLERK—Do you preach yourself ?
Mrs. Turnbull—No, Sir; but I am not here to
answer questions about religion.

Lord .GILLIES—What sect do you belong to—
what name are they known by ? Mrs. Turnbull—
I belong to a body of Christians.
Lord GILLIES—What is their name ? Mrs,
Turnbull—Christians.

Mrs. Turnbull was then removed, and her hus-
band put in the box. The Court endeavoured to
explain to him the necessity and propriety of giving
evidence, and asked him to explain what were the
scruples which affected hie wife's mind. Mr. Turn-
bull—l can explain it in a word. It is just because
we are Christians we will not swear.

LORD JUSTICE CLERK—DO you attend public
worship ? Where do you meet ? Mr. Turnbull—
We attend worship, and meet in Broughton.
The COURT—Who preaches? Mr. Turnbull—
I do not think I am called to answer that question.
LORD JUSTICE CLERK—If you do not give some
satisfactory explanation of your reasons for declining
to take the oath—an oath taken by all who give
evidence, except Quakers—we must deal with you
as a person who refuses to give evidence. Mr.
Turnbull—l consider it better to obey God than
man. If I am punished for conscience sake I will bear
my punishment as becomes a man in that situation.
Lord MEADOWBANK—WouId you refuse to give
evidence for crimes committed against yourself ?
Mr. Turnbull—l know we must suffer much on
earth, and would allow the person to escape rather
than give evidence.
LORD JUSTICE CLERK—Suppose a ruffian were
to force his way into your house, and put your wife
to death, would you decline to give evidence ? Mr.
Turnbull—l would, my Lord.
Lord GILLIEs—HoId up your hand, and repeat,
after me, the words of the oath. Mr. Turnbull—I
will not, my Lord.
The LORD ADVOCATE moved that the witness be
committed.

LORD JUSTICE CLERK—I have to inform you,
Mr. Turnbull, that, unless you give us some grounds
for your refusal, we must proceed against you as
against a person refusing to take the oath, and not
being excepted by law. Do you refuse to swear ?
Mr. Turnbull—l do refuse, Sir.
The LORD JUSTICE CLERK—Then we must
commit you to gaol.
A warrant for the witness's imprisonment, subject
to the future orders of the court, was instantly made
out, and he was removed in the custody of a mater.

A school-boy, 13 years of age, was lately fined
by the Magistrates of Ilminster, in the mitigated penalty
of 31. Ss. for shooting at a partridge, which, however, he
did not kill. The informer was the person who was with
the youth at the time the gun was discharged.=—Chelten-
ham Chronicle.

KERRY ELECTION.---Colonel CROSBIE ar-
rived in Tralee this day from his seat at Ballyheigue Castle.
We understand that the Gallant Colonel is canvassing for
the representation of this county at the next election. It
is more than probable that we shall have an election for
Kerry before the dissolution of Parliament. It is also ru-
moured that Major MuLurts and Mr. BLINNERHASSET, of
Ballyseedy, are also canvassing. There is a rumour of the
intention of a Member of the House of Kenmare to offer
himself; but we cannot speak confidently on that subject;
it should not, however, surprise, if a gentleman of inde-
pendence and fortune should offer himself, for the first
time, to the electors of his native country, on the first op-
portunity,— Tralee Mercury, June 20.

PARLIAMENTARY PAPER.

REPORT OF THE COMMISSIONERS ON THE
LAW OF REAL PROPERTY.
(Continued from our Paper of yesterday.)
FINES AND RECOVERIES.

Fines and recoveries of lands in England (not
including Wales, and with the exception of
lands in the counties palatine, and some inferior
jurisdictions) are levied and suffered in the
Court of Common Pleas at Westminster. In
addition to the essential acts to be dune either
in Court, or before a Judge, or a Sergeant, or
Commissioners, in levying a fine, or suffering a
recovery in that Court, documents must be ob-
tained at the following offices, viz.—for a fine,
two at the Cursitor's Office, one at a Judge's
Chambers, one at the Alienation Office, one at
the Return Office, one at the Warrant of At-
torney Office, one at the Custos Brevium
Office, one at the King's Silver Office, and
one at the:Chirographer's Office ; and for a re-
coverh two at the Cursitor's Office, one at the
Alienation Office, four at the Office of the
Clerk of the Recoveries, and one at the Seal
Office. The forms and proceedings, both in
fines and recoveries, being so very numerous and
complicated, it is not to be wondered at that
mistakes should occasionally be made. In some
cases the Court will rectify the mistakes, but
in other cases the Court will refuse an ap-
plication for amendment ; so that a party claim-
ing under a fine of recovery may lose his
estate, although his title may be defective merely
in consequence of some formal error or omission.
Applications to the Court for this purpose
frequently subject the parties to very heavy ex-
pences. A fine, or a recovery, in the Court of
Common Pleas at Westminster, may be reversed
by a writ of error, or avoided on account of mis-
takes in the proceedings, which the Court will
not amend, or of the death of any of the parties
before a certain stage of the proceedings, or of
infancy in certain cases, or of lunacy as to a re-
covery in certain cases, or of fraud, and on other
accounts ; and a fine may also be avoided on the
plea, that neither of the parties had the freehold
at the time of levying it ; and a recovery, may be
avoided in case the tenant to the pracipe should
not have the freehold before the end of the term
in which it was suffered. In every stage of the
numerous proceedings in a fine and recovery, ex-
pences are incurred in official fees and stamps ;
these, together with the.professional charges of
the attorney, come to a considerable sum, vary-
ing in amount according to the number of the
conuzors in a fine, and the number of the
vouchees in a recovery ; and also according to
the circumstances of the fine being acknowledged
in Court, or before a Judge, or a Sergeant at
Law, or Commissioners, or of the recovery being
suffered by the appearance in Court of the tenant
and the vouchee or vouchees in person, or by
attorney. In addition to these expences, there
are payable at the Alienation Office, a prefine
and postfine on the writ of covenant in a fine,
and a fine on the writ of entry in a recovery.
The amount of these fines depends on the na-
ture, situation, extent, and value of the property,
and they are frequently very heavy, and greatly
exceed in amount the other expences. We have
been furnished with one instance in which the
enormous sum of 4,0001. was paid for a fine.
In some cases, where the income payable to the
person levying the fine, or suffering the recovery,
consists of small ground rents reserved on build-
ing leases, the fine has been known to be equal
to nearly half the annual rental. We have given
in the Appendix (Part 4.) an instance of the
proceedings in and expences of a fine, without a
dedimus, where the party appears in Court, and
an instance of the proceedings in and expences
of a fine, with a dedimus where the party
does not appear in Court, and an instance of the
proceedings in and expenc©s of a recovery,
with double and treble voucher, with a dedi-
mus where the vouchees appear by attorney,
and with double voucher where the vouchee ap-
pears in person. It is observable that in these
instances the lands were of little value, as ap-
pears from the amount of the alienation fines,
which include the prefine and postfine on a fine,
and the sum paid for the writ of entry in a re-
covery, which includes the fine on that writ.
We have also given in the Appendix (Part 4.)
the evidence of persons in the different offices
through which the proceedings in fines and re-
coveries in the Court of Common Pleas at West-
minster are passed, from which evidence it ap-
pearsow little benefit is actually produced to
flow
the Crown and the patentees as compared with
the burden sustained by the parties, the fines
payable at the Alienation Office on fines and re-
coveries, having, upon the average of three years
ending at the commencement of last Hilary
Term, amounted to 13,449/.65. Bd. per annum.
The mode in which these fines are appropriated
appears in the Appendix, and the fees payable at
the different offices also appear.
A married woman, on levying a fine, must be
separately examined either in Court or by Com-
missioners, or before the Chief Justice out of
Court ; and in suffering a recovery, she must be
separately examined either in Court or by Com-
missioners.

When the lands are in different counties, there
must be a distinct fine or recovery for each
county, because every real action must be_ brought
in the county in which the land lies. Formerly
it was the practice in regard to fines, when lands
were situated in more than one county, to have
as.many writs of covenant as there were counties,
and to unite all the subsequent proceedings, and
to allow the parties to levy but one fine ; but in
consequence of a recent regulation, it is now ne-
cessary to have distinct proceedings and a dis-
tinct fine for each county, the effect of which is
to increase the expellees without any apparent
reason. Distinct owners of separate lands in the
same county are allowed to join in one fine, pro-
vided all the lands together are stated by affidavit
to be under the value of 2001. The benefit to
be derived from this indulgence is very limited,
on account of the smallness of the value fixed.
Fines and recoveries arc levied and suffered in
the Courts of Great Sessions in Wales, in the
Courts of the counties palatine, and in inferior
jurisdictions, such as Courts of ancient demesne,
and Customary and other Courts ; and the rules
in those Courts nearly resemble those in the
Court of Common Pleas. However, fines with
proclamations cannot be levied in inferior juris-
dictions, so that as to lands within those juris-
dictions, a title by non•claim cannot be acquired,

and estates tail can be barred by recovery only,
and in a recovery of a copyhold the tenant to the
plaint, who corresponds with the tenant to the
prcecipe in a recovery of freehold, must be made
by the person having that estate in the copyhold
which is analogous to the first estate of freehold.
A fine may be levied at any time, and if ac-
knowledged in the Court of Common _Pleas in
vacation, and grounded on a writ of covenant
returnable to the preceding term, it will have re-
lation back to the day on which the writ is re-
turnable ; therefore a fine levied as of a preced-
ing term is sufficient to make a tenant to the
prcecipe in a recovery suffered within that term.
But in order to make a fine bar by non-claim,
where the freehold is acquired by a feoffment,
livery of seisin must be made before the day on
which the writ of covenant is returnable, so that
if the feoffment be made in vacation, the fine
must be levied in or as of a subsequent term ;
for if the fine were levied as of the preceding
term, it would, by the doctrine of relation, be
supposed to hare been levied prior to the feoff-
ment, and consequently would be inoperative as
a bar by non-claim, on the ground that "partis
finis nihil luabuerunt tempore finis levati:"
other mischiefs may arise from this doctrine.

Recoveries in the Court of Common Pleas
at Westminster can only be suffered in term
time ; and in the Courts of the Great Sessions
in Wales, and in the Courts of the counties pa••
latine and other jurisdictions, at the times when
the Courts are held. All these Courts are held
at fixed periods, except Courts of Ancient
Demesne and Customary Courts, which may be
held at any time. Great inconveniences are ex-
perienced by parties in consequence of their not
being able to suffer recoveries when circumstances
render the measure expedient.
Estates tail created by the Crown as rewards
for public services, arc, by the 34 and 35 Henry
VIII. c. 20, prevented from being barred either
by fine or recovery, while the reversion remains
in the Crown, and there are some cases in which
estates are entailed by particular Acts of Parlia-
ment, and the entails cannot be barred.

By the 14 Eliz. c. 8, a recovery suffered by a
tenant in tail after possibility of issue extinct, or
by a tenant by the curtesy, or by any other
tenant for life, without the assent of a remainder
man or the reversioner, is void.
A woman having an estate in dower, or foi
her life, or in tail jointly with her husband, or
only to herself or to her use, in any lands of the
inheritance or purchase of her husband, or given
to her husband and her, in tail or for life by any
of the ancestors of the husband, is prohibited by
the 11 Henry VII., c. 20, from discontinuing or
suffering a recovery after the death of her hus-
band, unless with the assent recorded or inrolled
of the heirs next inheritable to her, or of him or
them that next after her death should have an
estate of inheritance in the same lands. This
statute as to fines is confirmed by the 32 Henry
VIII., c. 36, s. 2. The statute 11 Henry VII.,
c. 20, has been held not to extend to copyholds ;
many questions have arisen upon' i it. As it has
nearly become obsolete, and as there does not
appear to us to be any solid reason why an estate
tail given to a woman by her husband, or any of
his ancestors, should be put on a different foot-
ing from other estates tail, we submit that it
will be expedient to discontinue the present re-
straint.

Courts of Justice attach so much importance
to the records of their proceedings, that they will
not allow any averment or evidence to contradict
them. Although this principle may be perfectly
correct in real adversary suits, yet its application
to fines and recoveries, which are now regarded
by the Couits as common assurances, has, as we
shall proceed to shew, produced a strange ano-
maly, by rendering them conclusive so far as re-
spects the capacity of parties, where other com-
mon assurances would not be so. If aninfant
levy a fine, or in person suffer a recovery, such
fine or recovery is conclusive on all persons, un-
less avoided during his minority upon inspection
of his person by the Judges, or unless his mino-
rity be found by the inspection of his person by
the Judges and recorded before he attains twenty-
one. if an infant suffer a recovery by attorney,
it may be avoided, either during his minority, or
after he comes of age, because the appointment
of an attorney by an infant is void, and that fact
may be tried by a jury. If a lunatic levy a fine,
or in person suffer a recovery, such fine or re-
covery is of itself considered conclusive evidence
of his capacity, and therefore cannot be avoided.
if a lunatic suffer a recovery by an attorney, the
recovery may be avoided for the same reason as
stated with regard to an infant. In every case,
in which an infant or lunatic levies a fine, or in
person suffers a recovery, the fine or recovery is
primil facie evidence of his capacity by deed to
declare the use of it ; because it is held, that the
fine or recovery is the principal, and the deed
the accessary, and the fine or recovery is conclu-
sive as to the lunatic ; and also as to the infant,
in case he should not avail himself of the time
given him for avoiding it. If a recovery should
be suffered, either in person or by attorney, by
an infant or lunatic tenant in tail in possession,
who should make the tenant to the pmcipe by
any other deed than a feoffment with livery of sei-
sin in person, n'that case the deed, being the prin-
cipal, would, if the fact of the infancy or lunacy
of the party were found by a jury, be void, and
the recovery, being the accessary, would be set
aside, on the ground of there being no tenant to
a
the prcipe. So that the recovery, although it
could not be directly questioned, might be in-
directly avoided by invalidating the deed for
making the tenant to the pr wipe. But if the
tenant to the priecipe were made by a fine and
a deed, declaring the use to the tenant, or by a
feoffment with livery of seisin in person, the re-
covery could not be set aside for want of a good
tenant to the preecipe, although the fine in case
of the infant, or the feoffment in the case of the
infant or lunatic, should be avoided. If a re-
covery should be suffered by an infant by attor-
ney, and not in person, and the tenant to the
pracipe should be made by fine, such fine might
be conclusive on all persons, as well parties and
privies as strangers, though the recovery might
be avoided, so that one record may stand good
while the other is avoided, in consequence of the
hew his incapacity.
If a recovery should
tutnedatic in
to person, evidence
chew
incapacity of the party..
bweouslduffieioretdbebyadamil
But if he should make the tenant to the pracipe
by deed alone, and not by fine and deed, de-

daring the use to the tenant, -evidence would be
admitted to shew his incapacity to execute the
deed, though it may have been executed on the
same day on which he appeared in Court, so that
he would be considered as having on one and
the same day sufficient sense to suffer a recovery
but not to execute a deed. The Court may be
imposed upon, and instances of such imposition
are to be found in our Law Reports, and occa-
sionally occur in practice ; and there is no re-
dress, unless equity can interfere on the ground
of fraud.

If a tenant in tail claiming the immediate re-
mainder or reversion in fee, bars his estate tail
by means of a fine instead of a recovery, he fre-
quently prejudices his title by merging in the re-
mainder or reversion the base fee acquired by the
fine, as he thereby not only lets in all the charges
and estates made and created by the persons
through whom he derived the remainder or re-
version, but also renders it necessary afterWarits
to make out his title to the remainder or rever-
sion, which, in many instances, is attended with
great difficulty and expellee. These mischiefs
are, in the case of a tenant in tail in possession,
produced by unskilful practitioners from want of
due attention to the different effects of a fine and
recovery, the recovery, expanding the estate tail
and converting it to a fee simple.

Titles to lands of the tenure of ancient demesne
are frequently involved in considerable difficulties
in consequence of fines or recoveries having by
mistake been levied or suffered in the Court of
Common Pleas. A fine or recovery of lands of
this,tenure, ought to be levied or suffered in the
Court of the Manor of which the lands are held.
' As, however, the lands are within the jurisdic-
tion of the Courts at Westminster, -a fine or re-
' covery in the Court of Common Pleas is not
void, but only voidable. The consequence of
this is, that the lands become frank fee till the
Lord by means of a writ of disceit reverse the
fine or recovery ; after the reversal, the lands are
restored to the ancient tenure, and the fine or
recovery is rendered void, not only as to the Lord,
but also as to the parties, and all persons claim-
ing under them. Till the reversal, the parties
are absolutely bound by the fine or recovery, and
there is no method by which the Lord can be
compelled to bring his writ of disceit, and, ac-
cording to the prevailing opinion, there is no
limit to his right to bring it; and the parties
themselves, however so disposed, cannot rectify
the error. Although a release from the parties
would be effectual to extinguish their rights, yet
according to the better opinion, no subsequent
fine or recovery can be levied or suffered in the
Lord's Court, nor can the tenant claim any pro-
tection from the Lord, or any right depending
on the tenure, till the reversal of the fine or reco-
very in the Court of Common Pleas, nor can the
tenant have any effectual dealing with the lands
as frank fee, till the Lord has released his seig-
nory. Therefore, till the reversal of the fine or
recovery, or the release of the seignory, the title
is unmarketable. The principles of justice re-
quire, that the fine or recovery in the Court of
Common Pleas of lands in ancient demesne
should, when reversed by the Lord, still remain
good against all persons except him. Another
mischief arising from the conversion into frank
fee of lands of the tenure of ancient demesne, by
levying a fine or suffering a recovery in the su-
perior Court is, that the owner, riot being aware
of the effect produced by such fine or recovery,
afterwards, and before the same is reversed, levies
a fine or suffers a recovery in the Lord's Court,
which, according to the better opinion, is void on
the ground of its having been corant non ju-
dice. Fines and recoveries are not unfrequently
levied and suffered in the superior Court, not
from any wish to defraud the Lord of his te-
nure, but from the circumstance of the legal ad-
visers of parties not knowing that the lands are
of the tenure of ancient demesne, for it often
happens, that previously to a fine or recovery the
t to
aleisnelgaolinlmsoad,mpsintplowleielierirerlpiiefneolgf.eor
ea
Pleas
on
fhat
sttlihhas
letleadnnsaudbrsei ti..ircaoc
title of the lands is not investigated, or there
slnlahwaoywi teht
hanitsottchl The
countyne
palatine,
artei recovery e
is absolutely
levied
nve-
r N
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principlei suffered\?d:anali snd;
on ri e inn. a A
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thereforete Cur
two() fr
works
be a good one as to lands in those jurisdictions,
because the boundaries are well known and de-
fined. But for the reason above given, it could
I not be made to apply to lands held in ancient
demesne.

Fines and recoveries are levied and suffered to
equitable estates, and have, with few exceptions,
the same operation as they would have had if the
estates had been legal ; but neither a fine nor a
recovery of an equitable estate will produce a
forfeiture of a particular interest, or destroy con-
tingent interests, except in the instance of a re-
covery suffered by an equitable tenant in tail
which will bar the entail, and all interests to take
effect on the determination or in derogation
thereof. Fines and recoveries of equitable estates
must be levied and suffered in the same Courts,
and with the same formalities, as those of legal
estates. But there is some difference between
legal and equitable recoveries, so far as regards
the tenant to the pracipe. As for instance, in
a legal recovery, the person to make the tenant
to the pracipe, must be seized in possession,
either in fact or in law, of the immediate estate
of freehold ; but in an equitable recovery, it is
sufficient if the person, who is to make the
tenant to the pracipe, be entitled to an imme-
diate equitable estate of freehold, although he
may not be in the actual possession, or in the
receipt or enjoyment of the rents and profits ;
and according to a recent decision, a tenant in
tail of an equitable estate, after making a con-
veyance by way of mortgage, or upen such trusts
as leave the ultimate beneficial ownership in him-
self, can make a good tenant to the prcecipe,
without the concurrence of the mortgage, or trus-
tee. In making the tenant to the pracipe for
an equitable recovery, the expedients before re-
ferred to for preventing forfeiture, or the destruc-
tion of contingent remainders, are not necessary.
Money directed to be laid out in the purchase
of land is considered by a Court of Equity as
converted into real estate. Formerly, a person
who would have been entitled to the land, it
purchased, as tenant in tail, was enabled by a
Court of Equity to receive the money if ho
could have acquired the fee by a fine, but not if
a recovery would have been, requisite, in which
case it was necessary to purchase land in order.to
suffer a recovery. This inconvenience has been
removed by two successive Acts of the Legisla-
ture, the latter of which, 7 Geo. IV., c. 45, re-
pealing the former, l 9 and 40 Geo. 111. c. 56,
has provided relief by a summary proceeding in
the Court of Chancery for the several cases in
which parties entitled to money so circumstanced
could, by fine or recovery, have acquired domi-
nion over the land, if purchased,

Thus have we endeavoured to give a general
outline of the system of fines and recoveries, and
to show their inaptitude to the purposes to which
they have been applied, and the shifts and con-