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When land not in charge.

Property in

"actual sei

sin" of the Crown unaffected.

taken (g). The object of such return being probably, as suggested by the court, to protect the Crown from the effect of continued nonpayment, whether from indulgence or from any other cause.

As regards the question of being or not being duly in charge, the last clause in this statute has no controlling effect on the 2nd clause, but was introduced with reference to cases of concealment only (h). In Tuthill v. Rogers, Lord Chancellor Sugden, referring to Att.-Gen. v. Lord Eardley, said he always doubted that decision, and that if the point arose again it might deserve further consideration. This case, however, may be supported on other grounds than the profits being in charge. The interest of the Crown was reversionary, expectant on the determination of a lease, which did not expire until the year 1780, and the proceedings by the Crown were taken in the year 1819, within sixty years from the time of the possession accruing to the Crown, although the court appears to have entertained some doubt on this view (i).

The entry in the Crown rental of a rent reserved by letters patent granting land in tail, and received after the determination of that estate, is not a putting in charge of the land itself (k).

In relation to the property of the Crown in Ireland, Ireland in the if within the sixty years the Crown "have or shall have been in the actual seisin" of the property, the right to it is also unaffected (1). These words are not in either the statute of James the First or the 9 Geo. 3, and are of doubtful import. A difference of opinion as to their meaning arose between Sugden, L. C., and Blackburne, M. R. The interpretation of them by the

(g) Att.-Gen. v. Maxwell, 8 Pri. 76, n.; Att.-Gen. v. Lord Eardley, Ib. 39; Daniel's Rep. 299, S. C.

(h) Att.-Gen. v. Lord Eard

ley, supra.

(i) Vide supra, p. 409. (k) Tuthill v. Rogers, 1 Jo. & Lat. 36.

(1) 48 Geo. 3, c. 47, s. 1.

latter was actual possession; but the former, although doubting, did not entirely reject, that intepretation (m).

charge, not

now material

The mere circumstance either of the Crown having Answering been answered the profits of any hereditaments of which profits, or being in the property claimed is parcel, or of the property or the profits thereof having been in charge or stood insuper of record, within sixty years, will not now enable the Crown to sue for it after that period has elapsed (n). But this is as to property in England only.

in England.

fected unless

The Crown, when restrained from alienating the pos- Crown not afsessions belonging to it, cannot be affected by the Sta- the full period tutes of Limitation applicable to it in any period of elapse. time less than that fixed by them (o). So the statutes 9 Geo. 3, c. 16, and 48 Geo. 3, c. 47, not repealing those statutes imposing such restraint (p), and being, as against the Crown, in the nature of a negative prescription, and, as respects the subject, in the nature of a positive prescription, as prescription is considered and treated in the law of Scotland (q), the Crown is not in any degree affected until, by the expiration of the entire period of time fixed by those Statutes of Limitation, the title of the subject is complete (r). And although, before the statutes imposing such restraint, and when the Crown had a power to make a grant, such a grant by the Crown might have been presumed (s); and although, even since those statutes, and in cases where these Statutes of Limitation do not apply, and no such restraint exists, and in cases between subject and subject (t), and even, perhaps, in at least some cases between the Crown and a subject (u), such a grant by

(m) Tuthill v. Rogers, 1 Jo. & Lat. 36.

(n) 24 & 25 Vict. c. 62, ss. 1, 3. (o) See Goodtitle d. Parker v. Baldwin, 11 East, 488; Mill v. The Commissioner of the New Forest, 18 C. B., N. S. 60.

(p) See Goodtitle d. Parker v. Baldwin, supra.

(9) Ersk. Inst. 560, s. 8; ante,

p. 25.

(r) See Goodtitle d. Parker v.
Baldwin, 11 East, 488.

(8) Roe d. Johnson v. Ireland,
11 East, 280; Gibson v. Clark,
1 Jac. & W. 159; 17 Beav. 366.
(t) Doe d. Devine v. Wilson,
10 Moo. P. C. C. 502.

(u) Roe d. Johnson v. Ireland,
11 East, 280.

Whether its grantee be.

Sixty years for the Duke of Cornwall.

the Crown may be presumed in favour of a possession against it for twenty years and upwards, but less than sixty years; yet, where these latter statutes do apply, no such grant by the Crown can be presumed, in either class of cases, in favour of a possession of less than sixty years against the Crown (x). And no presumption by which the Crown can be barred can be made so long as the land is used in a way which the Crown could not interfere with, and which is consistent with the freehold in the land being retained by the Crown (y). And in the cases of those prescriptive rights provided for by the 2 & 3 Will. 4, cc. 71 and 100, all presumption in support of the exercise of them for a less period than that fixed in each case is expressly excluded (z).

Inasmuch as a grantee of land from the Crown acquires no particular privileges, is not protected against the common law remedies and rights of other persons (a), and, in general, is not entitled to the benefit of the prerogative maxim, nullum tempus occurrit regi (b), it may be a question whether, where a possession has commenced against the Crown, a grantee of the land from the Crown can, after the expiration of twenty years from such commencement, claim at any time during the next forty years (c). If not, the title of the possessor, whilst liable to be defeated by the Crown for forty years more, would, as against the grantee at any time after the first twenty years, become absolute.

Until the present reign, no Statute of Limitations affecting the Duke of Cornwall in relation to the

(x) See Goodtitle d. Parker
v. Baldwin, 11 East, 488; Doe
d. Devine v. Wilsan, supra.
(y) See Doe d. The Queen v.
The Archbishop of York, 14 Q.
B. 81.

(z) See sect. 6, c. 71; Bright v.
Walker, 1 C. M. & R. 211; Bailey
v. Appleyard, 3 N. & P. 257;

pos

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sessions of the duchy existed (d). At first, this law was applied to the possessions of the duchy in Cornwall only, and then with some exceptions (e) afterwards, and very recently, to the excepted possessions, and those elsewhere (f), but as to the possessions included in the latter statute, subject to the provisions 72 and 75 in the former one.

the Crown.

If before the first of these statutes, and before the When not afCrown, as respects the possessions of this duchy, had fected through been barred of its remedy, and before the subject had acquired a complete title against the Crown, a Duke of Cornwall had come into esse, the time which had elapsed against the Crown would not avail against the Duke (g); for, as on the Duke coming into esse, the estate of the Crown ceases, and that of the Duke arises (h), either the right or title acquired against the Crown must cease also, or the time which had elapsed as against the Crown was not to be reckoned against the Duke, or the time ceased to run against him (i).

The time of limitation prescribed for the Duke of Cornwall, and, when the duchy is vacant, for the Crown also, by the first of these statutes, is also sixty years.

computed.

The right or title by reason whereof the Duke or the Period, how Crown claims must first accrue within that term, computed from the time next before the commencement of proceedings to recover, or in respect of the property (k). The time of limitation in relation to mines of the Mines. duchy in Cornwall is fixed by special provisions in the first of these statutes.

Where any lands, manors, tenements or hereditaments in Cornwall have been held without interruption for sixty years or more before any proceeding in respect

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Reversions and remainders.

Expectant on leases.

of any mines, minerals, stone or substrata in, upon, under or of any such lands, &c., and substantially worked and gotten at any time during that period by the person who has so held and enjoyed the said lands, &c., and not at any time during that period worked and gotten, or the tolls, dues, royalties and other profits of such mines, &c., have not been received or enjoyed by the Duke or any claiming under him or the Crown, such mines, &c. cannot be sued for (m).

Where any lands, manors, tenements or hereditaments in that county have been held or enjoyed by any person without interruption by the Duke, or any person claiming under him, for 100 years before any proceeding in respect of any mines, minerals, stone or substrata in, upon, under or of any such lands, &c., and where such mines, &c. have not been, during that period, "worked and gotten," or the tolls, duties, royalties and other profits thereof have not been received or enjoyed by him or any such person so claiming, such mines, &c. cannot be sued for (n).

In the case of reversions and remainders in the present Duke, those, and any possibility of them in any of his predecessors, on the determination of any limited estate (o), and reversions and remainders in property conveyed by him or by any person through whom he claims, for any limited estate in fee simple, or any estate tail, or other particular estate, the right or title first accrues on the possession coming to the Duke or the Crown (p).

In the construction of the 9 Geo. 3, c. 16, and of the 24 & 25 Vict. c. 62, as applied to the possessions of the duchy, by the latter statute the right of the Duke and of the Crown to any manors, &c., subject to any lease for years, or for life or lives, is to be

(m) 7 & 8 Vict. c. 105, s. 73.
(n) Sect. 74.

any

(0) 7 & 8 Vict. c. 105, s. 76. (P) Sect. 77.

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