CH. I. the Act 48 Geo. III. c. 47, a vendor claiming under S. PART VII. had, as against the Crown, a good title to the fee simple of the land, and one which would be forced on a purchaser; and that at the same time the Crown had an indefeasible right to the quit-rent which had been so long paid. On the construction of the English Act it was decided that, where returns had been made of tithes by the auditors to the revenue within sixty years before suit, although the return had always been nil, there had been a sufficient keeping in charge to prevent the right of the Crown being barred by lapse of time (1). The correctness of the decision in Att.-Gen. v. Eardley (1) was questioned by Lord St. Leonards when Lord Chancellor of Ireland (2). By two statutes of the present reign (3) the law as to the effect of keeping lands in charge to the Crown has been to some extent altered, and it is now enacted that the Queen's Majesty or her successors shall not sue any person for any manors or hereditaments whatsoever (other than liberties or franchises), which such person or any one through whom he claims shall have held or enjoyed or taken the rents or profits thereof for sixty years before suit, by reason only that the same manors or hereditaments or the rents or profits thereof shall have been in charge to the Crown, or stood insuper of record within the said space of sixty years; but that such having been in charge and such standing insuper of record shall be as against such person, and all claiming under him, of no form or effect (4). By the Act 24 & 25 Vict. c. 62 it is also provided that the Queen's Majesty, her predecessors and successors, shall not be deemed for the purposes of the 9 Geo. III. c. 16, to have been answered the rents or profits of any (1) Att.-Gen. v. Eardley, 8 Price, 39; Att.-Gen. v. Maxwell, ib. 76. 24 & 25 and 39 & Vict. c. 62, 40 Vict. c. 37. CH. I. PART VII. lands or hereditaments which shall have been held or enjoyed, or of which the rents or profits shall have been taken by any other persons for sixty years next before any proceeding for recovering the same, by reason only of the same lands or hereditaments having been part of any honour or manor or other hereditaments, of which the rents or profits shall have been answered to Her Majesty or her predecessors or successors, or some other person under whom Her Majesty claimeth, or of any honour, manor, or other hereditaments which shall have been duly in charge to the Crown or stood insuper of record (1). And also that, in the construction of that Act and of the 9 Geo. III. c. 16, the right or title of the Crown to any manors or hereditaments comprised in any lease granted by the Crown, shall not be deemed to have first accrued until the expiration of such lease as against any person whose enjoyment of such hereditaments or whose receipt of the rents or profits thereof shall have commenced during the term of the lease, or who shall claim through any person whose enjoyment or receipt so commenced (2). Similar provisions with regard to Ireland are contained in the Act 39 & 40 Vict. c. 37. In a case (3) which arose recently in Ireland under the first section of the last-named Act, it was pointed out that the language of the first part of that section (as well as of the corresponding English Act) differs from that of the first section of 48 Geo. III. c. 7, and only relates to actions "for or in any wise concerning any manors, lands, tenements, rents, tithes, or hereditaments whatsoever," and does not extend to actions "for or in any wise concerning the revenues, issues or profits thereof;" therefore it was held (3) that a claim by the Crown for a quit-rent is not barred by non-payment for any time, if the original grant was inserted in the great roll of the (1) Sect. 3. (2) Sect. 4. (3) In re Maxwell's Estate, 28 L. R. Ir. 356. CH. I. pipe, such a rent being duly in charge within the PART VII. meaning of the third exception in 48 Geo. III. c. 47 (corresponding to the English Act 9 Geo. III. c. 16). Cornwall. By another Act of the present reign (1) similar Duchy of limitations to those prescribed in the Nullum Tempus Act were enacted with respect to claims by the Duke of Cornwall to lands and other hereditaments within the county of Cornwall, other than liberties or franchises, and other than mines, minerals, stones, and substrata (2). It is further provided that the claims of the Duke of Cornwall to any mines, minerals, stones, or substrata in the county shall be barred by sixty years' possession of the land, if such mines, &c., have been substantially worked at any time during that period by the person in possession, and such mines, &c., have not been at any time during that period worked, or the tolls, dues, royalties, and other profits thereof received or enjoyed by the Duke of Cornwall or some person claiming under him (3). And the claims of the Duke to such mines, &c., are likewise barred by one hundred years' possession of the land, if during that period of one hundred years such mines, &c., have not been worked, or the tolls, &c., enjoyed by the Duke, or some person claiming under him (4). And the right of the Duchy to any navigable river, estuary, port, or branch of the sea, and the soil thereof, and to the shores between high and low water mark is excepted from the operation of the Act (5). The claims of the Duke of Cornwall have been further limited by the Act 23 & 24 Vict. c. 53. The preamble of this statute recites that the provisions of 7 & 8 Vict. c. 105 do not extend to claims to navigable rivers, estuaries, ports or branches of the sea, or the soil thereof, or the shores between high and low water mark, and that 23 & 24 Vict. c. 53. CH. I. PART VII. it is expedient that as to hereditaments not within the county of Cornwall, and also as to such hereditaments within the county as are excepted from the provisions of the former Act, the limitation applicable to actions and suits by the Crown should be made applicable to actions and suits by the Duke of Cornwall. It is accordingly enacted (1) that all the provisions of 9 Geo. III. c. 16, now applicable to the Crown, shall extend and be applicable to the Duke of Cornwall, as if the same were re-enacted, and the Duke of Cornwall were throughout mentioned and referred to, when the "King's Majesty," or "His Majesty," is in the said Act mentioned or referred to, subject to the sections of the 7 & 8 Vict. c. 105, concerning the putting in charge of lands in the Duchy (2). But the Act 23 & 24 Vict. c. 53 does not extend to property respecting which a limitation is provided by the earlier Act, nor does it affect the provisions of the Prescription Act (3), or of the Act for shortening the time in claims of modus decimandi, and exemption from tithes (4). The provisions of the Act 24 & 25 Vict. c. 62, which have been already referred to as affecting the claims of the Crown, extend also to the claims of the Duke of Cornwall, with the exception of the section which provides that the Crown shall not be deemed to have been answered the rents or profits of any lands, &c., occupied by any other person for sixty years, by reason only of such lands being part of any manor, &c., of which the rents or profits have been answered to the Crown, and it was not necessary to extend this section to the Duchy of Cornwall, as a precisely similar section was contained in the 7 & 8 Vict. c. 105 (5). It must be always recollected that all the property (1) Sect. 1. (2) Sects. 72, 75. (3) 2 & 3 Wm. IV. c. 71. belonging to the Duchy of Cornwall is not subject to the PART VII. same enactments. The result of the various Acts would seem to be that claims of the Duchy to mines, minerals, stones, and substrata, not within the county of Cornwall, and to navigable rivers, &c., whether within or without the county, are affected by the Nullum Tempus Act, as amended by 24 & 25 Vict. c. 62, and subject to the 72nd and 75th sections of 7 & 8 Vict. c. 105; the rights of the Duchy to mines, &c., within the county of Cornwall only, being within the special provisions of the Act 7 & 8 Vict. c. 105, relating to that kind of property. As liberties and franchises are excepted from the operation of the Nullum Tempus Act, as well as from that of 7 & 8 Vict. c. 105, it would seem clear that there is no statutory limitation to the title of the Duchy to liberties and franchises, whether within or without the county of Cornwall, any more than there is to the title of the Crown to them. All other property of the Duchy not within the county of Cornwall is subject to the provisions of the Nullum Tempus Act as amended, and to the provisions of 7 & 8 Vict. c. 105, ss. 72 & 75. CH. I. |