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Confulering the minute attention requifite to all the forms pre-fcribed in this aft, in order to conftitute the charge, and the ratherunready mode of obtaining repayment when the charge ha9 beenconftituted, with the chances of forfeiture, through the omiilion ofany of the forms, the aft feems not very encouraging to the im-provements that fuit the proprietor, -j- Accordingly, the framers ofthis aft feem to have confidered, that enclofure at leaft, (probablythen confidered as one of the moft important agricultural improve-ments), was rather to be expefted from tenants upon leafe, thanfrom poffefifng heirs of entail. And in confequence, in the latitudegiven by this ftatute as to the endurance of leafes, the burden of en-clofure is devolved upon the tenant, on the well-grounded fore-thought, that, if not executed at his expenfe, there was but littleprobability of their being ever executed at all. If the leafe, there-fore, (hall extend to the lives of two perfons defigned, or to thefpecific period of thirty-one years, (which feem confidered as equi-valent durations), it is provided that the tenant (hall enclofe, in afufficient and lading manner, the whole of the lands fo leafed to him,within thirty years; that is, one-third in the firft ten years, two-thirds in twenty years, and the whole within thirty. Leafes of that
f The possessing heir of entail may make the next succeeding heir his debt-or, to the extent of four years rent for agricultural improvements, and two year'rent for the mansion-house; or in whole for six years’ rent. But he himselfmust have actually laid out equal to one-third of what he charges, as he canfcnly render the next heir debtor for three-fourths of what he has actually expend*ed. Supposing, then, he constitutes a debt against the next heir for six jeaRrent, he himself, in order so to be entitled, must have expended eight yearsrent; but the next heir can only be obliged to give up one-third of what hereceives yearly; {. e. the creditor can only recover l-24th part of his capital ex-pended, or exactly 4 l-6th per cent., as the only fund for redemption o^^ 5principal. Suppose, for instance, a possessing heir constitutes a debt of 20 Cm-for the mansion-house ; as he can charge only three-fourths of what he hases*pended, he must have expended 26661. 13s. 4d.; let him also constitute a debtof 4000/. for land improvement, and he must for this purpose have in like man-ner expended 55531. 6s. 8d. He dies, and the estate, at the entry of the suc-ceeding heir, is rented at 1000/. a year: he has thus, then, legally constituteda debt against the estate to the full amount allowed by the law, viz. Tworent for the mansion-house, and six years’ rent for land improvement, or mwhole a debt of 6000/. ; but for this purpose, he was obliged actually to expend8000/. The next heir, however, is not obliged to pay more than one-third^*ways of the rents which ho draws : he therefore pays one-third of 1000/. y e ®v’or 5351. 6s. 8d.; which annual payment is exactly 4 l-6th per cent . of the 800Q»<actually expended. ..
If the first heir, as debtor, continues to live, he would pay off the debt legacyconstituted of the 6000/. in the space of forty-three years and a fraction, by J ®surrender annually of the third of the rents as they were at his entry, or p a ) in £. 5531. 6s. 8d. annually, which is all he can be obliged to. And no fresh decan be contracted, until the first contracted debt shall be' extinguished. *doubt, if the first succeeding heir shall die before the expiry of the forty* d 11 * ■years, and the rents should have risen before his death, the debt may be soon^extinguished, as his successor may be compelled to pay one-third of tbo r®annually as it was at the date of his entry. .
The third of the rent received by the possessing heir being the only atta ^able fund, the recovery must always be the more slow, in direct proportionthe liberality of the outlay.