and a day. A man, cat, or dog, are only put for examples; but all other living things are to be understood; and, if the owner of the ship should die within the year and a day, his executors or adminis trators may make proof. 2. Co. inst. 167, 168. Wood's inst. 214. If the goods are taken away by wrong-doers, the owner may have his action: and, if the wrong-doers are unknown, he may have a commission of oyer and terminer, to inquire what persons committed the trespass, and make restitution. Harris.

Tit. 2. De servitutibus, p. 87. Servitus est jus quo res alterius, rei vel persona servit, Dig. 8. 1. 1. Nemini res sua servit, Dig. 8. 2. 26. Dig. 7. 6. 5. Servitus, a service, is a right by which one thing is subjected to the use or convenience of another thing or person, contrary to common right; and not where one person is subject to another person; which is servitude, though sometime called servitus: as, servitus uterina, Taylor 426. 411. 407. Inst. 1. 3. 2 Dig. 1. 5. 4. 1. In translating this word by the word services I follow Wood's civil law, Taylor's Elem. civ. law. and Harris. I am aware that lord Mansfield in Waring v. Griffith et al. 1 Burr. 443, translates it SERVITUDE. But, he was more intent upon the substance, than the expression, and I prefer Taylor's authority as a critic, to Lord Mansfield's. Cambaceres has Servitudes ou Services. Code civil Nap. Art. No. 526.

1. De servitutibus urbanis, p. 88. In the Roman law, all houses and buildings whether in town or country are called Prædia Urbana: and all lands, whether meadow, arable, or vineyard, are called Pradia Rustica: Dig. 50. 16. 198.

Prædia urbana, city services; are affirmative or negative.

Affirmative as that I may rest my beam on my neighbour's wall": that my house shall in part rest on his wall: that my house may project so as to throw the path upon his premises: that my eaves may overhang upon his side: that my sink or gutter may pass through his ground: that I may put out lights that overlook him: that my prospect shall be uninterrupted by his buildings, &c. all of which are noticed in the eighth book of the Digests.

Negative services are, that his caves shall not drop upon my ground: that he shall not build so as to darken my lights, or hinder my prospect: that he shall not put out a window to overlook me: that he shall not raise his house without my permission.

Prædia rustica: rural services; are a right of passing over the grounds of another, by foot path, horse path, or carriage way: Iter, Actus, Via or Aditus. Aqueducts, a right of water course: a right

of drawing water, watering cattle, hunting, fishing, making lime, digging gravel, &c.

Others are personal services, such as the rent services of the feudal times.

The word service in the English law, answers perhaps more properly to Easement, than any other synonime, and indeed is used synonimously. Jacob's Law Dict. voce Easement. But on reflection I have preferred, service. As to the law on this subject see Reynolds v. Clarke, 2 Lord Raym. 1899. Str. 634. Peppin v. Shakespear, 6 Durn. and East, 748. Allen v. Ormond, 8 East, 4. The pleading is required to be strict.

I collect the following observations from the notes of Ferriere in Loco.

Services, are incorporeal rights incident to rural or city estates. They do not lie in livery. Dig. 41. 1. 43. 1. Dig. 8. 2. 32. 1. Dig. 8. 3. 14. 17. They cannot therefore be acquired by usucapion, which applies to things in possession only. But they can be prescribed for, and 10 years gives a title between parties present, and 20 years against absentees. But the original title must be bona fide, nec vi, nec clam, nec precario, otherwise the prescription must go beyond 100 years according to Cujacius ad Leg. 14 ff. de servitut. These services might depend on stipulation and contract. A right of way could not be for a way of less than eight feet when straight, and sixteen when crooked. Dig. 8. 3. 8.

Tit. 4. § 1. Quibus modis constituitur, p. 90. In England there are no usufructs under that name. Estates at will and for years however are of the same nature, and usufructs might doubtless be created by compact. The USE of the old English law previous to the statute for transferring uses into possession, 27 Hen. 8 ch. 10. were, as Blackstone observes, 2 Comm. 327, more analagous to the fidei-commissum or testamentary trust-estate of the Romans, than to the usufruct of an

estate.

§ 2. Quibus in rebus constituitur, p. 91. Senatus censuit. Dig. 7.

5. 1. 2.

Quasi-usufruct may be of certain cloaths, as vestes seniles et funerales, or what our New England people would call a go-to-meeting coat which is used so sparingly that it is long before it is destroyed by use,

§ 3. Quibus modis finitur, p. 91. Statuit constitutio, viz. Cod. 3.

23.16.

It may cease by non-user for one year in respect of things moveable,

and two as to things immoveable. Dig. 8. 1. 4. but by an ordinance of Justinian, three years as to things moveable.

Qua res consolidatio appellatur. This is similar to merger.

Tit. 5. § 1. Quid intersit inter usufructum, &c. p. 93. Use differs from usufruct. 1st. The latter may be divided, the former is indivisible, L. 5. ff. de usufruct. L. 19. ff. h. 1. 2ndly. The usufruct extends to all the fruit or produce of the object, the use only to the immediate want of the user. L. 12. §. 1. et seq. ff. h. 1. 3rdly. The usufructuary can lend, sell, &c. which is not an incident of use. 4thly, The usufructuary is bound to repairs and replacements, which the heir is not. Ferriere in loc.

Minus autem.] An Use, by the laws of England, is of as great an extent, as an usufruct by the Roman law. And by 27 H. 8. He, who hath the use of land, is deemed to have the land itself. But as to such uses and rights of habitation, which were among the Romans, though our laws have not treated of them in any particular manner, yet they may certainly be granted and acquired by special covenants and agreements, as was said of usufruct. Usus apud nos æque late extenditur, atque ususfructus apud authores juris civilis; sed non video, cur idem jus tam de usu, ut illi eum intelligunt, quam de habitatione, apud nos non teneat, quod olim inter Romanos tenebat. Cowel, h. t. Wood's imp. Law. 151. Harris.

:

of the fruits of

Nudum habet usum.] An usufruct is a right of enjoying all the fruits and revenues, which the estate, subject to it, is capable of producing; but an use consists only in a right to take out the ground what is necessary for the person, who has the use, or what is settled by his title; and the surplus belongs to the proprietor of the estate thus those, who have the right of use in a forest or copice, can only take what is necessary for their use, or is regulated by their title. And he, who has the use of any other ground, can only take out of it what shall be necessary to supply the occasions he shall have for those kinds of fruits, which the ground produces: or the use may even be restrained to certain kinds of fruits, or revenues, without extending it to others. Thus we see in the Roman law, that he, who had only the simple use of a piece of ground, had no share of the corn or oil, which grew in it; and that he, who had the use of a flock of sheep, was restrained only to make use of them for dunging his grounds, and had no share either in the wool or lambs: and even of the milk, it is said in some places, that the usuary could take but a very small portion; and in others, that he had no right to any of it. ff. 7. t. 8. l. 12. Domat. lib. 1. t. 2. sect. 2. Harris.

§2. Edium usus, p. 93. No doubt the right to assign the usufruct of a house, might be the subject of special contract under the Roman law.

In what cases a clause in a lease, prohibiting assignment or underletting, shall rank under usual and proper covenants, see Vere v. Loveden, 82 Vez. 179, and the cases there cited; also Jones v. Jones, Ib. 186. and Weatherall v. Gearing, Ib. 511. Watson v. The master of Hemsworth Hospital, 14 Vez. 333. But a prohibition of assigning without licence, ceases on licence once granted. Brummelv. Macpherson, Ib. 173, and Jones v. Jones, 12 Vez. 191.

Such a prohibiting clause however, becomes void on the bankruptcy of the lessce. Weatherall v. Gearing, 504. Agreement to let, not held a lease if any thing executory remained. 12 Vez. 413

Nostra decisione.] Whoever hath a right of habitation in an house, or in a part of it, may assign over and let out his right to another, unless the instrument, from which he derives his title, bears some condition to the contrary: and the right of habitation, as well as that of use, if simply given, continues during the life of him, who possesses it Cod. 3. t. 33. l. 13. de usufructu et habitatione. ff. 7. t. 8. l. 10. sect. Harris.

3.

4. De Pecorum usu, p. 94. Pindar v. Wadsworth, 2 East, 155, is an action by a commoner for taking away the dung from a common: it was found that the plaintiff's injury would not amount to more than a farthing: held that the action would lie.

6. Transitio, p. 94. By the civil law in Justinian's time, there were three modes of acquiring title in common use: to wit, legal adjudication: transfer by operation of law: and usucapion including prescription. Transfer by mancipation, and by legal cession were out of use. L. 11. Cod. de usucap. transf. Cujas ad loc. Ulpian fragm. tit. 19. Fer

riere.

Tit. 6. Præcipua usucapionis requisita. viz. &c. p. 95. See 2 Blacks. Comm. 263.

Et ideo constitutionem.] vid. Cod. 7. t. 31. l. un. De usucapione transformanda, et de sublata differentia rerum mancipi et nec mancipi. By the common law of England the time of prescription is that time, of which there is no memory of man, or record, to the contrary; for if there is any sufficient proof of a record or writing to the contrary, although it exceeds the memory or proper knowledge of any man living, yet it is deemed to be within the memory of man: and this is the reason, that regularly a man can not prescribe or allege a custom against an act of parliament, because it is the highest proof and matter of re

cord in the law. Co. Litt. 115. But, although a prescription is said to be constituted by a portion of time, which exceeds the memory of man, yet this is not always true; for our laws admit a great variety of prescriptions; which for the sake of order may be divided into two sorts;into those, which secure us from loss and punishment; and into those, which enable us to acquire a property.

The statute of the 31st of Eliz. cap. 5. bars all popular actions on account of offences by a prescription of two years, in the case of the king, and by a prescription of one year, when there is an informer. Other penal statutes allow different periods to prescribe in-as one year; (3 H. 7. c. 1. 21 Eliz. c. 4.)-six months ; (5 Eliz. c. 5.) three months; (1 Edw. 6. c. 1.)—one month; (23 Eliz. c. 1.) &c. &c. &c. and, by the common law, if a man is acquitted upon an indictment of murder, he may after a year and a day plead prescription against any appeal brought by the wife, or the next of kin to the party killed. Natura brevium 624. G.—Things immoveable also, whether corporeal or incorporeal, are variously prescribed to. The most usual prescription is that, which is called emphatically the longest, and extends beyond the memory of man; for whoever will prescribe against another in regard to the maintenance of a chaplain to celebrate divine service, the repairs of a church, an annuity, or any service in his fee, he must prove them to have been time out of mind, or he does nothing. But there are prescriptions of a shorter time, as of 40 years in the case of predial tithes, by the 2d and 3d of Ed. VI.of five years for lands and tenements, when a fine hath been lawfully acknowledged with the due proclamations. (4 Hen. 7. c. 24.)———of three years, when lands and tenements, gotten by forcible entry, have been so long held in quiet possession; (8 H. 6. c. 9.)—of a year and a day for a villein to assert his liberty against his lord, if the villein has continued so long in antient demesne, or in any of the king's cities or towns, without being claimed or molested.of a year and a day for the confirmation of any deed made by one, who is in prison, unless he who made it, doth in the interim revoke it.-Also of a year and a day, to hinder the entry of him, who, having omitted to make continual claim, endeavours, after a descent cast, to recover lands and tenements, of which he hath been unjustly disseized. Co. 1. inst. page 250, &c. of continual claim. But prescriptions do not take place in ail things. No man can prescribe, for example, to things not in commerce, nor to those, of which the king is properly the sole lord; nor to a custom, which is repugnant to reason or good manners. Co. Litt. lib. 2d. sect. 212. of villenage. And it is a known maxim, in the