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CHAPTER THE SEVENTEENTH.
OF TITLE BY PRESCRIPTION.
A THIRD method of acquiring real property by purM chase is that by prescription ; as when a man can fhew no other 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 enquired at large in the preceding part of these commentaries. At present there fore I shall only, first, diftinguish between custom, ftrictly taken, and prescription ; and then shew, what sort of things may be prescribed for.
And, first, the distinction between custom and prescription is this; that custom is properly a local usage, and not annexed to any person; such as, a custom in the manor of Dale that lands shall descend to the youngest fon : prescription is merely a personal usage; as, that Sempronius, and his ancef. tors, or those whose estate he hath, have used time out of mind to have such an advantage or privilege b. As for ex ample: 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 to be a lawful usage) this is strictly a custom, for it is applied to the place in general, and not to any particular per fons : but if the a See Vol. I. pag. 75, &c
ci Lev. 176. Co. Litt. 113. R4
tenant, who is feised of the manor of Dale'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 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 en- . acted, that no person shall make any prescription by the seisin or poffeffion of his ancestor or predecessor, unless such seisin or possession hath been within threescore years next before such prescription made f... ,
SECONDLY, as to the several species of things which may, or may not, be prescribed for: we may in the first place, obferve, that nothing but incorporeal hereditaments can 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. For no man can be said to prescribe, that he and his anceftors have immemorially used to hold the castle of Arundel: for this is clearly another fort of title; a title by corporal feifin 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 feifin, the enjoyment will be frequently by intervals, and therefore the right to enjoy them can depend on nothing else but immemorial usagé. 2. A prescription must always be
d 4 Rep. 32. m .. c Co. Litt. 113.
f This title, of prescription, was well known in the Roman law by the name
of ufucapio; (Ff. 41. 3. 3.) so called,
laid in him that is tenant of the fee. A tenant for life, for: years, at will, or a copyholder, cannot prescribe, by reason of the imbecillity of their eftatesh. For, as prescription is usage beyond time of memory, it is absurd that they should pretend to prescribe, whose estates commenced within the remembrance of man. And therefore the copyholder must prescribe under cover of his lord's estate, and the tenant for life under cover of the tenant in fee-fimple. As, if tenant for life of a manor would prefcribe for a right of common as appurtenant to the fame, 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 it’s 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. Thus a 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 : 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 ; such as, for instance, the royal franchises of 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; for they arise from private contingencies, and not from any matter of record k. 5. Among things incorporeal, which may be claimed by prescription, a distinction must be made with regard to the manner of prescribing; that is, whether a man fhall 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 įs claimable by this 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, but alfo such as may be in gross'. 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 grofs, he must prescribe in himself and his ancestors. 6. Lastly, we may observe, that estates gained by prescription are not, of course, descendible to the heirs general, like other purchased eftates, but are an exception to the rule. For, properly speaking, the prefcription is rather to be considered as an evidence of a former acquisition, than as an acquisition de novo : 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 it's principal.
Co. Litt. 114.
h 4 Rep. 31, 32. i Ventr. 387.
CHAPTER THE EIGHTEENTH
OF TITLE BY FORFEITUR
TORFEITURE is a punishment annexed by law to
T fome illegal act, or negligence, in the owner of lands, tenements, or hereditaments ; whereby he loses all his ina tereft therein, and they go to the party injured, as a recoma pense for the wrong which either he alone, or the public toe gether with himself, hath sustained.
LANDS, tenements and hereditaments, may be forfeited in various degrees and by various means : 1. By crimes and misdemesnors. 2. By alienation contrary to law, 3. By non-presentation to a benefice, when the forfeiture is denominated a lapse. 4. By fimony. 5. By non-performance of condition. 6. By waste. 7, By breach of copyhold cuftoms, 8. By bankļuptcy.
I. The foundation and justice of forfeitures for crimes and misdemesnors, and the several degrees of those forfeitures, proportioned to the several offences, have been hinted at in the preceding volume * ; 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 fix; 1. Treason. 2. Fea Jony. 3. Misprision of treason. 4. Praemunire. 5. Drawing