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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 properly 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 (f) (4).

Secondly, as to the several species of things which may, Incorporeal heor may not, be prescribed for: we may, in the first place, reditaments

alone can be observe, that nothing but incorporeal (5) hereditaments can claimed by pre

scription. (d) 4 Rep. 32.

name of usucapio; (Ff. 41. 3. 3); so (e) Co. Litt. 113.

called because a man, that gains a title (f) This title, of prescription, was by prescription, may be said usu rem well known in the Roman law by the capere.

(4) The statute of 21 Jac. 1, c. 16, chapter. And it is true, that later takes away the right of entry into legal writers do, like our author, only lands, after twenty years have elaps- admit prescription to operate in the ed from the time when such right case of incorporeal hereditaments. But, of entry accrued; with a saving in there is a kind of negative prescription favour of infants, femes covertes, luna- estallished by the statute law, extendtics, and persons imprisoned or beyond ing to corporeal hereditaments, by the seas. By the statute of 1 Mary, which an uninterrupted possession for sess. 2, c. 5, it is enacted, that the sta- a certain number of years, though it tute of 32 Hen. VIII. c. 2, shall not ex- cannot give a direct title to lands, will tend to any writ of right of advowson, give the possessor a substantially good quare impedit, or assize of darrein pre- title, by taking from all other persons sentement, or jure patronatus.

the right of entering on such heredi(5) This is in apparent contradiction taments, or of maintaining any action, to the old law, as laid down by Brac- or suit, for them. (See the last note, ton, and stated in the first note to this and note (2) to chap. 13).

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 in[ *265 ]

tervals, and therefore the right to enjoy them can depend on Prescription nothing else but immemorial usage. 2. A prescription must must always be always be *laid in him that is tenant of the fee. A tenant for ant of the fee. 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, 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 (6), 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

in

(8) Dr. & St. Dial. 1, c. 8. Finch, 132.

(1) 4 Rep. 31, 32.

(6) If a copyholder, as such, claims prescribing in his own name, he is, right of common, or other profit, in from necessity, allowed, in his pleading, the soil of a stranger, he ought, as to allege his claim to be dependent on stated in the text, to prescribe in the custom, though prescription would, name of the lord of the manor; but if under other circumstances, be the corthe copyholder claims common, rect allegation. (Foiston v. Cracherode, other profit, in the lord's soil, then of 4 Rep. 31 b. Gateward's case, 6 Rep. course he cannot prescribe against the 61 a. Day v. Savage, Hob. 86. Rolord, in the lord's name; and as the berts v. Young, Hob. 286. Pearce v. nature of his estate prevents him from Bacon, Cro. Eliz. 390).

or

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 It cannot be for be raised by grant. For the law allows prescription only in in grant; for it supply of the loss of a grant, and therefore every prescrip- presupposes the tion presupposes a grant to have existed (7). Thus, the grant. 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 That which fourth rule is, that what is to arise by matter of record can- of record canno

arises by matter not be prescribed for, but must be claimed by grant, entered be prescribed

for, but must be on record (8); such as, for instance, the royal franchises of claimed by deodands, felons' goods, and the like. These, not being for- grant. feited 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 (9); for they arise from private contingencies, and not from any matter of record (k). 5. As to the man

ner of prescribAmong 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 (i) 1 Ventr. 387.

(k) Co. Litt. 114.

(7) See note (1) to this chapter, as (8) For, prescription being but an also note (67) to chapter 3. And it usage in pais, can never extend to such should seem, that if a grant, though things as cannot be seised or had withmade before time of legal memory, ap

out matter of record. (Foxley's case, pears as if it was by matter of record; 5 Rep. 110 a. Case of the Abbot of the thing granted must be claimed by Strata Marcella, 9 Rep. 25 b). force of the grant, not by prescription. (9) See the 3rd chapter of this vo(Keilway, 123 b, pl. 78). Sce the next lume, sect. 3, p. 37. note.

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 (10), 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 anThe mode of de- cestors. 6. Lastly, we may observe, that estates gained by tate by prescrip- prescription are not, of course, descendible to the heirs

general, 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 (11): and therefore, if a man prescribes for a right of way in himself and his ancestors, it will descend only to the blood of that line of ancestors in whom he so prescribes; the prescription in this case being indeed a species of descent. But, if he prescribes for it in a que estate, it will follow the nature of that estate in which the prescription is laid, and be inheritable in the same manner, whether that were acquired by descent or purchase; for every accessory followeth the nature of its principal.

tion,

(1) Litt. s. 183. Finch, L. 104.

(10) But, if the grant appear, the author is hardly accurate in speaking thing granted cannot be claimed as ap- of prescription at the commencement of pendant. (Keilway, 123 b).

this chapter, as a method of acquiring (11) This seems to shew that our real property by purchase.

267

CHAPTER XVIII.

OF TITLE BY FORFEITURE.

Forfeiture is a punishment annexed by law to some illegal Forfeiture.
act, or negligence, in the owner of lands, tenements, or
hereditaments: whereby he loses all his interest therein,
and they go to the party injured, as a recompence for the
wrong which either he alone, or the public together with
himself, hath sustained.

Lands, tenements, and hereditaments, may be forfeited The various dein various degrees and by various means: 1. By crimes and grees and means

of forfeiture. misdemesnors. 2. By alienation contrary to law. 3. By non-presentation to a benefice, when the forfeiture is denominated a lapse. 4. By simony. 5. By non-performance of conditions. 6. By waste. 7. By breach of copyhold customs. 8. By bankruptcy.

I. The foundation and justice of forfeitures for crimes and 1. By crimes and misdemesnors, and the several degrees of those forfeitures misdemeanors. proportioned to the several offences, have been hinted at in the preceding volume (a); but will be more properly considered, and more at large, in the fourth book of these commentaries. At present I shall only observe in general, that the offences which induce a forfeiture of lands and tenements to the crown are principally the following six: 1. Treason. 2. Felony (l). 3. Misprision of treason. 4. Pre

(a) Vol. I. pag. 299.

(1) By the statute of 54 Geo. III. c. felony, save and except in cases of the 145, it is enacted, that no attainder for crime of high treason, or of the crimes

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