title to what he claims, than that he, and those under whom he claims, have immemorially used to enjoy it. Concerning customs, or immemorial usages, in general, with the several requisites and rules to be observed, in order to prove their existence and validity, we inquired at large in the preceding part of these commentaries (a). At present therefore I shall only, first, distinguish between custom, strictly taken, and prescription; and then show what sort of things may be prescribed for. tween custom And, first, the distinction between custom and prescrip- Distinction betion (2) is this: that custom is properly a local usage, and and prescription. not annexed to any person; such as a custom in the manor of Dale that lands shall descend to the youngest son: prescription is merely a personal (3) usage; as, that Sempronius and his ancestors, or those whose estate he hath, have used time out of mind to have such an advantage or privilege (b). As for example, if there be a usage in the parish of Dale, that all the inhabitants of that parish may dance on a certain close, at all times, for their recreation, (which is held (c) to be a lawful usage,) this is strictly a custom, for it is applied to the place in general, and not to any particular persons: but if the *tenant who is seised of the manor of Dale [ *264 ] in fee, alleges that he and his ancestors, or all those whose estate he hath in the said manor, have used time out of mind to have common of pasture in such a close, this is pro shortened the time of prescription, with respect to claims to rights of common, and (subject to certain specified exceptions,) other profits a prendre from the lands of others: and also with respect to claims of rights of way, easements, water-courses, and use of light. The statute of the same session, c. 100, shortened the time required in claims of modus, or discharge of tithes. (2) Custom and prescription, though confounded in common language, are, strictly speaking, very distinct in their nature; (Baker v. Bearman, W. Jones, 367;) it is true, that immemorial usage was, in all cases, essential to (c) 1 Lev. 176. them both, before the passing of the perly called a prescription; for this is a usage annexed to the person of the owner of this estate. All prescription must be either in a man and his ancestors, or in a man and those whose estate he hath (d): which last is called prescribing in a que estate. And formerly a man might, by the common law, have prescribed for a right which had been enjoyed by his ancestors or predecessors at any distance of time, though his or their enjoyment of it had been suspended (e) for an indefinite series of years. But, by the statute of limitations, 32 Hen. VIII. c. 2, it is enacted, that no person shall make any prescription by the seisin or possession of his ancestor or predecessor, unless such seisin or possession hath been within threescore years next before such prescription made (ƒ) (4). (d) 4 Rep. 32. (f) This title, of prescription, was well known in the Roman law by the (4) The statute of 21 Jac. I. c. 16, took away the right of entry into lands, after twenty years had elapsed from the time when such right of entry accrued; with a saving in favour of infants, femes covertes, lunatics, and persons imprisoned or beyond the seas. By the statute of 1 Mary, sess. 2, c. 5, it was enacted, that the statute of 32 Hen. VIII. c. 2, should not extend to any writ of right of advowson, quare impedit, or assize of darrein presentement or jure patronatus. The statute of 3 & 4 Gul. IV. c. 27, enacts, that no person shall make an entry or distress, or bring an action or suit in equity to recover any land or rent, but within twenty years after the right accrued to himself or to some person through whom he claims; with provisoes in favour of remainder men and reversioners, whose rights are, for the purposes of the act, deemed to have first accrued when their respective estates or interests became estates or interests in possession. Persons labouring under the disabilities of infancy, coverture, or un name of usucapio; (Ff. 41. 3. 3 ;) so called because a man, that gains a title by prescription, may be said usu rem capere. soundness of mind, are allowed ten years from the removal of those disabilities; and persons claiming through them, ten years from the decease of parties dying under such disabilities, within which they may make entries, or bring actions or suits to recover land or rent; provided that, even in such cases, the remedy is sought within forty years after the right first accrued. Provided also, that no further time than ten years from the death of the person first entitled shall be allowed for a succession of disabilities. Provided moreover, that possession adverse to a tenant in tail shall run equally against the remainder-man ; and where the tenant in tail has been barred by not seeking his remedy in due time, all other persons shall be concluded whose estates or interests the tenant in tail might lawfully have barred. In cases of express trust, the right of the cestui que trust is to be held, according to the meaning of the act, not to have accrued before the trust estate has been conveyed away by the reditaments claimed by pre Secondly, as to the several species of things which may, Incorporeal heor may not, be prescribed for: we may, in the first place, alone can be observe, that nothing but incorporeal (5) hereditaments can scription. be claimed by prescription: as a right of way, a common, &c., but that no prescription can give a title to lands, and other corporeal substances, of which more certain evidence may be had (g). For a man shall not be said to prescribe, that he and his ancestors have immemorially used to hold the castle of Arundel: for this is clearly another sort of title; a title by corporal seisin and inheritance, which is more permanent, and therefore more capable of proof, than that of prescription. But, as to a right of way, a common, or the like, a man may be allowed to prescribe: for of these there is no corporal seisin, the enjoyment will be frequently by intervals, and therefore the right to enjoy them can depend on nothing else but immemorial usage. 2. A prescription must Prescription always be * laid in him that is tenant of the fee. A tenant for laid in the ten (g) Dr. & St. Dial. 1, c. 8; Finch, 132. trustee to a purchaser for valuable consideration, and in cases of concealed fraud, the right of persons defrauded to bring a suit in equity for the recovery of land or rent, shall not be deemed to have first accrued, until the time when the fraud was, or with reasonable diligence might have been discovered. Mortgagors are to be barred by twenty years' possession of the mortgaged premises by the mortgagee, or by his receipt of the rents thereof for that length of time; unless he has within that period given a written acknowledgment of the mortgagor's right of redemption. No lands or rents are to be recovered by ecclesiastical or eleemosynary corporations sole, but within two incumbencies and six years after the appointment of a third, if these terms, together, make up the period of sixty years; if not, the right is not to be barred until the sixty years are completed. No right of advowson is to be re covered, by any form of action or suit, At the end of the several periods of By the same act, all real and mixed actions are abolished, except writs of dower, quare impedit, or ejectment. (5) This is in apparent contradiction to the old law, as laid down by Bracton, and stated in the first note to this chapter. And it is true, that later legal writers do, like our author, only admit prescription to operate in the case of incorporeal hereditaments. But, there is a kind of negative prescription established by the statute law, extending to corporeal hereditaments, by which an uninterrupted possession for a certain number of years, will give the possessor a substantially good title, by taking from all other persons the right of entering on such hereditaments, or of maintaining any action, or suit, for them. (See the last note and pp. 196, 199.) must always be ant of the fee. [ *265 ] It cannot be for a thing not lying in grant; for it presupposes the existence of a grant. That which arises by matter of record cannot be prescribed for, but must be claimed by grant. life, for years, at will, or a copyholder, cannot prescribe, by reason of the imbecility of their estates (h). For, as prescription is usage beyond time of memory (6), it is absurd that they should pretend to prescribe for any thing, whose estates commenced within the remembrance of man. And therefore the copyholder must prescribe under cover of his lord's estate (7), and the tenant for life, under cover of the tenant in fee-simple. As if tenant for life of a manor would prescribe for a right of common as appurtenant to the same, he must prescribe under cover of the tenant in fee-simple; and must plead that John Stiles and his ancestors had immemorially used to have this right of common, appurtenant to the said manor, and that John Stiles demised the said manor, with its appurtenances, to him the said tenant for life. 3. A prescription cannot be for a thing which cannot be raised by grant. For the law allows prescription only in supply of the loss of a grant, and therefore every prescription presupposes a grant to have existed (8). Thus, the lord of a manor cannot prescribe to raise a tax or toll upon strangers; for, as such claim could never have been good by any grant, it shall not be good by prescription (i). 4. A fourth rule is, that what is to arise by matter of record cannot be prescribed for, but must be claimed by grant, entered on record (9); such as, for instance, the royal franchises of (h) 4 Rep. 31, 32. (6) See the preceding notes to this chapter, where recent statutes are cited, by which the time of prescription is shortened. (7) If a copyholder, as such, claims right of common, or other profit, in the soil of a stranger, he ought, as stated in the text, to prescribe in the name of the lord of the manor; but if the copyholder claims common, or other profit, in the lord's soil, then of course he cannot prescribe against the lord, in the lord's name; and as the nature of his estate prevents him from prescribing in his own name, he is, from necessity, allowed, in his pleading to allege his claim to be dependent on custom, though prescription would, (i) 1 Ventr. 387. under other circumstances, be the correct allegation. (Foiston v. Cracherode, 4 Rep. 31 b; Gateward's case, 6 Rep. 61 a; Day v. Savage, Hob. 86; Roberts v. Young, Hob. 286; Pearce v. Bacon, Cro. Eliz. 390.) (8) See note (1) to this chapter, as also p. 37, note. And it should seem, that if a grant, though made before time of legal memory, appears as if it was by matter of record; the thing granted must be claimed by force of the grant, not by prescription. (Keilway, 123 b, pl. 78.) See the next note. (9) For, prescription being but an usage in pais, can never extend to such things as cannot be seised or had with ner of prescrib deodands, felons' goods, and the like. These, not being forfeited till the matter on which they arise is found by the inquisition of a jury, and so made a matter of record, the forfeiture itself cannot be claimed by any inferior title. But the franchises of treasure-trove, waifs, estrays, and the like, may be claimed by prescription (10); for they arise from private contingencies, and not from any matter of record (k). 5. As to the manAmong things incorporeal, which may be claimed by pre-ing. scription, a distinction must be made with regard to the manner of prescribing; that is, whether a man shall prescribe in a que estate, or in himself and his ancestors. For, if a man prescribes in a que estate, (that is, in himself and those whose estate he holds,) nothing * is claimable by this [266] prescription, but such things as are incident, appendant, or appurtenant to lands; for it would be absurd to claim any thing as the consequence, or appendix of an estate, with which the thing claimed has no connexion: but, if he prescribes in himself and his ancestors, he may prescribe for any thing whatsoever that lies in grant; not only things that are appurtenant (11), but also such as may be in gross (1). Therefore a man may prescribe, that he, and those whose estate he hath in the manor of Dale, have used to hold the advowson of Dale, as appendant to that manor; but, if the advowson be a distinct inheritance, and not appendant, then he can only prescribe in his ancestors. So also a man may prescribe in a que estate for a common appurtenant to a manor; but, if he would prescribe for a common in gross, he must prescribe in himself and his ancestors. 6. Lastly, we may observe, that estates gained by The mode of deprescription are not, of course, descendible to the heirs tate by prescripgeneral, like other purchased estates, but are an exception to the rule. For, properly speaking, the prescription is rather to be considered as an evidence of a former acquisition, than as an acquisition de novo (12): and therefore, if (k) Co. Litt. 114. out matter of record. (Foxley's case, 5 Rep. 110 a; Case of the Abbot of Strata Marcella, 9 Rep. 25 b.) (10) See the 3rd chapter of this volume, sect. 3, p. 37. (7) Litt. s. 183; Finch, L. 104. (11) But, if the grant appear, the thing granted cannot be claimed as appendant. (Keilway, 123 b.) (12) This seems to show that our author is hardly accurate in speak scent of an es tion. |
