PBESCRI1TION. 



PRESCRIPTION. 



ni 



out of mind. But direr* opinion* have been of time out of mind, Ac 

 ad of title of preacription, which it all one in the law." i l.nt., S 170.1 

 According to thu passage, "time out of mind," and * prescription,'' 

 which are the name thing to law, art' essential to custom : another 

 anUal to [cuitom if usage. But there is a claim or title which in 

 specially called prescription, and which is like custom ao far aa it has 

 the inseparable incident* of time and usage ; but it differs from cuatom 

 in the maim, r in which it is pleaded, which difference shown the 

 difference of the right. Thii) claim hi called prescription, because the 

 plaintiff or defendant who makes it " prvMcribeth that," Ac. ; elating, 

 after the won! " preacribeth," the nature of his claim. 

 The following is an example of a prescription (Co. Litt, 114, a) : 

 H.MIV.I of the manor of D. hi fee, prescribeth thus : that I. S., 

 hi* anoeaton, and all whose estate he hath in the sayd manor, had and 

 uwd to bare common of pasture time out of mind in such a place, Ac., 

 bring the land of some other, Ac., as pertaining to the same manor." 

 The claim of a copyholder of a manor for common of pasture in the 

 manor, alleges a cuitom time out of mind within the same manor, by 

 which all the copyholders of the manor have had and used common 

 of pasture in it The chum by prescription, then, U properly a chum of 

 a determinate person : the claim by custom, as opposed to prescription, 

 is local, and applies to a certain place, and to many persons, and perhaps, 

 it may be added, to an indeterminate number, as the inhabitants of a 

 parish. The following definition of prescription appear* to be both 

 sufficiently comprehensive and exact: "Prescription is when a man 

 chumeth anything for that he, his ancestors, or predecessors, or they 

 whose estate he hath, have had or used anything all the time \ 

 no memory is to the contrary." (T. dela Ley.) From this definition 

 it follows that prescription may be ;a claim of a person as the 

 heir of his ancestors, or by a corporation as representing their predeces- 

 sors, or by a person who holds an office or place in which there is 

 perpetual succession ; or by a man hi right of an estate which he holds. 

 It is said that certain persons, attorneys for instance, may prescribe 

 that they and all attorneys of the same court have certain privileges ; 

 it seems indifferent whether this is called prescription or custom, but 

 it is more consistent with the old definitions to call it prescription, 

 since it is not a local usage, and it is by or on behalf of a determinate 

 number of persons, that is, all the attorneys of a particular court. It 

 U also said that parishioners may prescribe in a matter of easement, as 

 a way to a churchyard, but not for a profit out of land : such a pre- 

 scription, however, is not contained within the above definition, and is in 

 all respects more properly a custom. 



It is essential to prescription (subject to the limitations hereinafter 

 mentioned) that the usage of the thing claimed should have been time 

 out of mind, continuous, and peaceable. " Time out of mind " means, 

 that there must be no evidence of non-usage or of interruption incon 

 sistent with the claim and of a date subsequent to the lirst 

 Ilii haul L, which is the time of the commencement of legal memory. 

 If it cau be shown, either by evidence of persons living, by record, or 

 writing, or by any other admissible evidence, that the alleged usage 

 began since the first of Richard I., the prescription cannot be main- 

 tained. Repeated usage also must be proved in order to support the 

 prescription, but an uninterrupted enjoyment for twenty years has 

 been considered sufficient proof, where there is no evidence to show 

 the commencement of the enjoyment. [PKESUMITION-.] 



The thing prescribed for must be something definite. It must also 

 be reasonable ; and it must not be inconsistent with any established 

 principle of law ; for instance, it is said that a sheriff cannot prescribe 

 for Uking gifts for doing the duties of his office. It follows generally, 

 that there can be no prescription to do any wrong or commit nuisance, 

 or for a thing contrary to a statute. No prescription is good which is 

 against the king's right (subject to the limitations hereafter mentioned), 

 conformably to the niaTJm, Nullum tempus oocurrit regi ; yet a grant 

 fruui the crown may be presumed. 



Where a man prescribes for a thing which cannot be granted or 

 aliened without deed, he must prescribe in himself, and in his ances- 

 tors, whone heir he is ; and he cannot prescribe in himself and those 

 whose estate he hath ; for he cannot have their estate wit hunt deed or 

 other writing which ought to be showed to the court, lint of things 

 appendant to a manor or to other lands or tenements, a man may pre 

 scribe that he and they whose estate he hath, have been seised 

 thing! as appendant to the manor or to such lands and tenements titm 

 mind of man. And the reason is, that such manor or lands am 

 tenement* may pan by alienation without deed. (Litt. S 1 s :!.) 



From the nature of the chum of prescription, it follows that a man 

 cannot make a title to land by pn iice of a title 



to land is quite different from and inconsistent with that of a til 

 claimed by prescription, which only applies t jigs. 



man may prescribe for all franchises and privileges which he may have 

 without a title appearing on record, as for waifs, estrays, wreck, treasure 

 trove ; and to have a park or warren, to have a fair, market, or right to 

 toll, Ac. 



Nothing can be prescribed for at the present day tint may not I.. 

 the subject of grant; for the allegation of usage time out, ,,f mind nm 

 be usage of something which could originate in a lawful way. When 

 then, the claim of prescription i allowed, it is equivalent to admitting 

 that there was an -original grant which is now lost. (Lutlrcl's case 

 4 ' Rp.' 8<J.) It is however no proof of a grant. 



A question has beeu raised whether the same thin. 

 17 prescription and by custom, which \ nearly t! 

 aying, whether the sauie thin.- could be granted to all the 

 f a given place, and alo granted to one person in tli.it place, eii! 

 jrow or in iwpivl of a piece of land ; as for instnmv. \\ hell 

 ight i : ' : Aether with a public right of 



'. r. Trcgonning, 8 A. A Iv ,"iM5.) If 



original grant, it is an inconsistency to suppose a grant to A. and a 

 [rant of the sauiu thing to A. and others with him. 



U some confusion in the books as to prescription and cu 

 and the real distinction between them has perhaps not ni 

 observed. It seems immaterial whether the thing whose, origin U 

 inknown is called prescription or custom, for the two incidents oi 

 and usage belong to both. Still there is the distinction as t 

 xrsons who claim, which has been already stated; :uul t!i. re - --i 

 :ourse a difference in the evidence, which results from the difference in 

 .he persons claiming, or in whose right it is claim. .1. 



A prescription maybe lost or deatroytd in various w, 

 lung in respect of which the prescription is claimed is destroyed, the 

 irescription also is destroyed. A franchise by prescription 

 1 the same liberties are granted by the king by charter, hi., 

 ost by non-usage. But a prescription is not lost by changes whi. li 

 are immaterial and do not affect the nature of the claim : thus if a 

 man prescribes for a watercourse to a fulling-mill, and IK- converts it 

 nto a grist-mill, he does not lose his right, which is generally I 

 a watercourse to a mill on a given .-ito. And if a > ii.mld 



prescribe, and afterwards have a new name, it would not lose the right. 

 4 'Rep.,' 88.) When the ownership of the land and of the thing 

 claimed out of or upon it are united in the same person, the prescrip- 

 tion is destroyed. 



Recent Acts have made some alterations as to prescription, and 

 limited the time within which actions can be brought or suits inst i 

 relating to real property. The 3 & 4 Will. IV. c. 27, applies to 

 thing of a corporeal nature, which is land in the sense in whieh I 

 interpreted in that Act ; but it only applies to those kinds of property 

 of an incorporeal nature, which are advowsons, annuities, and 

 The 2 A li Will. IV. c. 100, applies only to cases of modus and cxemp 

 tion from tithes. The 2 A 3 Will. IV. c. 71, whieh is entitled " An 

 Act for Shortening the Time of Prescription in certain cases," applies 

 1) to "claims which may be lawfully made at the commoD l.iw by 

 custom, prescription, or grant to any right of common or nth, r profit 

 or benefit to be taken from or upon any land, Ac., except such n 

 and things as are therein specially provided for, and except > 

 rents, and service^ ;" (S 2) " to any way, or other ea-emeni. or 

 watercourse, or the use of any water," Ac.; and ( 3) to the 

 light. No claim to the things comprised within this statute '' 'skill, 

 wheu such right, profit, or benefit (as is mentioned in 1) .-hall have 

 been actually taken and enjoyed by any person claiming right th 

 without interruption for the full period of thirty years, be defeated or 

 destroyed by showing only that such right, profit, or benefit was first 

 token or enjoyed at any time prior to such ]>eriod of thirty years ; but 

 nevertheless such claim may be defeated in any other way by whieh 

 the fame is now liable to be defeated ; and where such right, profit, or 

 benefit shall have been so taken and enjoyed as aforesaid, for the full 

 period of sixty years, the right thereto shall be deemed absolui 

 indefeasible, unless it shall appear that the same was taken 

 by some consent or agreement expressly made or given for that i . 

 by deed or writing." As to the rights enumerated in the. nceond 

 section, the terms of twenty and forty years are iv-pertively I 

 the place of the terms of thirty and sixty year- mentioned in tl, 

 section. Under the third section, which applies to lights, an al 

 right to light may be acquired by twenty years' uninterrupted enjoy - 

 ment, unless the use has been enjoyed by some consent or agreement 

 made or given by deed or in writing. The eighth section provides 

 " that when any land or water upon, over, or from which any sin 

 or other convenient watercourse or use of water shall have 1 

 or derived, hath been or shall be held under any term of life, or any 

 term of years exceeding three years from the granting i 



tin f the enjoyment of any such way or other matter as tin T 



mentioned, during the continuance of such term, shall he excluded in 

 the computation of th. 1 of forty y. ITS, in ease. the. claim 



; hall within three years next altei the end 01 ,-OOM.T determina' 

 -ueh ti rm be re.-i.-ted by any person entitled to any reversion e.\| 

 on the determination thereof." Formerly it was necessary for all 

 persons who claimed in respect of an estate and had n. 

 claim in the name of the person who had the fee, but under the last- 

 mentioned Act " it shall be sufficient to allege the enjoyment thereof 

 as of right by the occupiers of the tenement hi respeet. whereof the 

 same is claimed, for such of the periods mentioned in the Act 



be applicable to the case, and without claiming in the nan right of 



the owner of the fee, as is now usually done." 



'I'll.' M.itute applic i al.-o to " any land or water of the king, his heirs, 

 or successors, or any land being parcel of the duchy of Lancaster or of 

 the duchy of Cornwall." 



By the common law a man might prescribe for a right which had at 

 any time been enjoyed f >\ i. rs or predecessor 



statute of 32 ll.n. VIII. c. 2, enacted that no pei> 

 any prtv. liption by the seisin or possession of his ancestor, mil. 



