Kitch. Courts, 105 b. Pill v. Towers, Lit. § 183. 1 Inst. 121 4. pasture in the place where, &c. for all commonable cattle, levant and couchant, &c. and thereupon justified. The plaintiff traversed the right of common ; and produced two ancient charters, without date, containing a grant of common. The judge being of opinion that these grants were inconsistent with the plea of prescription, a verdict was given for the plaintiff. Upon a motion for a new trial, it was urged for the defendant, that these grants might only be in confirmation of an antecedent prescriptive right; and then were not inconsistent with it. The Court was of opinion, that these grants might either be before time of memory, or else they might have been only in confirmation of a prior right: in neither of which cases would they have been inconsistent with a plea of prescription. It ought to have been left to the jury to decide whether either of these was the case. A new trial was granted. 16. An easement, which is a service or convenience that one neighbour hath of another, without profit, as a way through his land, a sink, or such like, may be claimed by prescription: but a multitude of persons cannot prescribe for an easement, though they may plead a custom. 17. There can be no prescription for what the law gives of common right; therefore a lord of a manor cannot prescribe to have a court baron within his mabecause it is of common right, and incident to a manor. But a lord of a manor may prescribe to enlarge the jurisdiction of his court. 18. Where a person prescribes in a que estate, he can claim nothing under such prescription but what is appendant or appurtenant to land; for it would be absurd to claim any thing as the consequence of an estate, with which the thing claimed has no connection. 19. A person cannot prescribe for any thing in a que estate that lies in grant, and cannot pass without deed or fine but in him and his ancestors he may, because he comes in by descent, without any convey ance. 20. Although prescription in general only extends to incorporeal inheritances, yet Littleton says, tenants § 310. in common may be by title of prescription: as if the one and his ancestors, or they whose estate he hath in one moiety, have holden in common the same moiety with the other tenant, who hath the other moiety, and with his ancestors, or with those whose estate he hath, undivided, for time out of mind. Lord Coke observes on this passage, that it is founded on good authority: but that joint tenants cannot be by prescription, because there is a survivorship between them, though not between tenants in common. yond time of memory. Lit. § 170. 21. There are two circumstances necessary to form Must be bea prescription. First, time whereof the memory of man runneth not to the contrary; which has long since been ascertained, by the law, to commence from the beginning of the reign of King Richard I.: though⋅ 2 Inst. 238, 9. Sir W. Blackstone justly observes, it seems unaccount- 2 Inst. 31. able that the date of legal prescription or memory should still continue to be reckoned from an æra so very antiquated. 22. This time is understood, not only of the memory 1 Inst. 115 a. of any man living, but also of proof by any record or writing to the contrary: for if there be any sufficient proof by record, or writing, although it exceed the memory or proper knowledge of any man living, yet it is within the memory of man. For memory or knowledge is twofold: first, knowledge by proof, as by record or sufficient matter of writing; secondly, by a man's own proper knowledge. 23. It follows, that where there is any proof of the commencement or origin of a right, since the time of Richard I., it cannot be claimed by prescription. 24. A vicar endowed de minutis decimis in the year Pringe e. Child 2 Roll. Ab. 269' And have a continued usage. 1 Inst. 113 6. Idem. And be certain and reasonable. Hob. 107. 1310 sued the parson appropriate for them. It was held that the parson could not prescribe against this endowment, though it was three hundred years past; for the prescription ought to commence since the endowment, which was subsequent to the time of limitation. 25. Secondly, every prescription must have a continued and peaceable usage and enjoyment: for if repeated usage cannot be proved, the prescription will fail. But where a title has once been gained by prescription, it will not be lost by any interruption of the enjoyment of it for ten or twenty years. 26. Thus, if a person has a right of common by prescription, and he takes a lease of the land for twenty years, whereby the common is suspended, he may, after the determination of the lease, claim the common again by prescription; for the suspension was only of the enjoyment, not of the right. 27. Formerly a person might have prescribed for a right, though the enjoyment of it had been suspended for an indefinite time: but this is now altered, as will be shewn in the next Chapter. 28. A prescription must be certain; therefore a pre2 Roll. Ab. 265. scription to pay for tithes a penny or thereabouts, for every acre of arable land, is bad. It must also be reasonable thus a prescription for setting out tithes, without the view of the parson, is void; as being unreasonable. But a prescription may be reasonable, though it be unusual or inconvenient; as for a person to have a way over a churchyard, or through a church. 29. A person cannot prescribe to do a wrong, or any Jac. 446. 491. thing that would be a nuisance to others; as to erect a dove-cote or pigeon-house on his lands, if it be a nuisance; or to lay logs of wood in the highway, and suffer them to continue there for a long time; for this is also a nuisance. Dowell v. 1 Inst. 115 a. 30. There can be no prescription against an act of parliament; because that is the highest proof and matter of record in law but a man may prescribe against an act of parliament, when his prescription is saved or preserved by another act of parliament. 31. Lord Coke says, there is a diversity between an Idem. act of parliament in the negative, and in the affirmative; for an affirmative act does not take away a custom. Moreover, there is a diversity between statutes that are in the negative for if a statute in the negative be declaratory of the ancient law, that is, in affirmance of the common law, there, as well, a man may prescribe or allege a custom against the common law; so a man may do against such statute; for consuetudo privat communem legem. 32. Mr. Hargrave has observed upon the above Idem, note. passage, that this appears to be a good rule; for if a statute is merely declaratory of the common law, the latter should be construed as it was before the recognition by parliament; consequently its operation should not be extended to the destruction of prescriptions and customs, which were before allowable. As to the use of negative words in such a case, they might either arise from the subject, or be a mode of expressing what the common law was; in either of which cases there could not be any colour of reason for giving more effect to negative, than belonged to affirmative words. In short, to say that a statute merely declaratory of the common law, being expressed in the negative words, should operate on subjects to which the common law was not applicable, seemed to be a direct contradiction: -for how could a statute be merely declaratory, if it was in any degree introductive of a new law. However there were books in which Lord Coke's distinction, in re- W. Jones 270, spect to negative statutes declaratory of the common law, was denied. If those who opposed his opinion had meant only to say, that in the instances by which he illustrated this rule, the negative words of the statutes not only imported something more than a declaration of the com 271. 289. 1 Inst. 115 a. Aldred's case, 9 Rep. 57. 2 Mod. 105. How a prescription may be lost. 1 Inst. 114 b. 4 Rep. 88 a. Cowper v. 4 Rep. 87 a. mon law, but were also intended to annihilate all particular customs clashing with it; or that on other accounts the instances were not apt; there might possibly be some colour for their dissenting from Lord Coke : but what was professed to be controverted was the distinction itself, which, as he understood it, seemed to be perfectly unexceptionable. 33. Lord Coke says, the statute 34 Edw. 1. provides that none shall cut down any trees of his own within a forest, without the view of the forester: but inasmuch as this act was in affirmance of the common law, a man may prescribe to cut down his woods, within a forest, without the view of the forester. This doctrine has been frequently denied: but is defended by Mr. Hargrave, with his usual learning and ability. 34. A man cannot prescribe against another's prescription; for the one is as ancient as the other: thus, if a man prescribes for a way, a light, or any other easement, another cannot allege a prescription to prevent the enjoyment of it. 35. A prescription may be lost by unity of possession, of as high and perdurable an estate in the thing claimed, and in the land out of which it is claimed by such prescription, because it is an interruption in the right. 36. So where the subject matter of a prescription is destroyed, the prescription is lost as if the repair of a castle be claimed by prescription, and the castle is destroyed, the prescription is gone. 37. But no alteration in the quality of the thing to which a prescription is annexed will destroy the prescription as if a person prescribes in a modus decimandi for tithes of a park, and the park is disparked, yet the prescription continues; for it is annexed to the land.. 38. So, if, a man has estovers by prescription to his house, although he alters the rooms and chambers of it, as to make a parlour where there was a hall, or a hall where the parlour was; and the like alteration, of the |