§ 22. Where a perfon prescribes in a que eftate he Lit. f. 183. can claim nothing under fuch prescription, but what is appendant and appurtenant to land: for it would be abfurd to claim any thing as the confequence of an eftate, with which the thing claimed has no connexion. § 23. A man cannot prescribe in any thing by a que eftate, that lieth in grant, and cannot pafs without a deed or fine; but in him and his ancestors he may, because he comes in by defcent, without any con veyance. § 24. There are two circumstances, neceffary to form a prescription; firft, time whereof the memory of man runneth not to the contrary. Time of memory has been long fince afcertained by the law, to comence from the beginning of the reign of Richard 1. and it seems fomewhat extraordinary, that the date of legal prescription fhould continue to be reckoned from fo diftant a period. § 25. This time is understood, not only of the me- Idem. mory of any man living, but also of proof by any record or writing to the contrary: for, if there be any fufficient 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 fufficient matter of writing; fecondly by a man's own proper knowledge. Pringle v. And have a Id. 114 b. Idem. § 26. It follows, that, where there is any proof of the commencement or origin of a right, fince the time of Richard 1., it cannot be claimed by prescription, § 27. A vicar, endowed de minutis decimis, in the year 1310 fued the parfon appropriate for them. And it was held, that the parfon could not prescribe against this endowment, though it was 300 years paft; for the prescription ought to commence fince the endowment, which was fubfequent to the time of limitation. § 28. Lord Coke fays, that every prescription must have a continual and peaceable ufage, and enjoyment: for, if repeated ufage cannot be proved, the prefcription fails. But, where a title has once been gained by prescription, it will not be loft by any interruption of the enjoyment of it for ten or twenty years. § 29. Thus, if a man hath a right of common by prefcription, and he takes a leafe of the land for twenty years, whereby the common is fufpended; he may, after the determination of the leafe, claim the common again by prescription: for the suspension was only of the enjoyment, and not of the right. § 30. Formerly, a person might have prescribed for a right, though the enjoyment of it was fufpended for an indefinite time; but this is now altered, as will be fhewn in the next chapter. § 31. A prefcription § 31. A prescription must be certain: and, therefore, a prescription to pay for tithes a penny, or thereabouts, for every acre of arable land, is bad. It muft also be reasonable: thus, a prefcription for fetting out tithes, without the view of the parfon, is void, as being unreasonable. Muft be certain and reafonable, Tit. Præfcrip. (G.) Pl. 3: 4. $ 32. It is faid in Rolle's Abridgment, that a man cannot prescribe to have a chace or warren in any land but his demefnes, or in land within his fee and feignory. And also that, if a lord of a vill prescribes to have a warren in all the lands within the vill, held Vide Tit. 27. of him, this is not good: for conies dig holes in the land. 265. § 33. A prescription may, however, be reasonable, 2 Roll. Ab. though it be unusual or inconvenient; as for man to have a way over a church-yard, or through a church. Prefcriptions, 2 Roll. Rep. § 34. No prefcription is good, which runs against Of void the king's right: for it is a maxim of law, that nullum tempus occurrit regi. $ 35. A man cannot prefcribe to do a wrong, or any thing that will be a nuisance to others; as, to erect a dove-cote or pigeon-houfe on his lands, if it be a nuifance; or to lay logs of wood in the highway, and fuffer them to continue there for a long time: for this is a nuifance, and against the public good. 364. Dowell v. Sanders, Fowler v. Sanders. Cro. Jac. 446. § 36. There can be no prefcription against an act 1 Inft. 115 a. of parliament; because that is the highcft proof and M m 3 matter Idem. Id. n 9. matter of record in law. But yet a man may prescribe. against an act of parliament, when his prefcription is faved or preferved by another act of parliament. § 37. Lord Coke fays, there is a diverfity between an act of parliament in the negative, and in the affirmative for an affirmative act does not take away a cuftom. Moreover, there is a diverfity between ftatutes, that be in the negative; for, if a ftatute in the negative be declarative of the ancient law, that is, in affirmance of the common law; there, as well as a man may prescribe or alledge a custom against the common law, fo a man may do against fuch ftatute: for confuetudo privat communem legem. $ 38. Mr. Hargrave has obferved upon this paffage, that this appears to be a good rule: for, if a flatute is merely declaratory of the common law, the latter fhould be conftrued as it was before the recognition by parliament; and, confequently, its operation fhould not be extended to the deftruction of prefcriptions, and customs, which were before allowable. As to the use of negative words in fuch a cafe, they may either arife from the fubject, or be a mode of expreffing what the common law is; in either of which cafes there cannot be any colour of reafon for giving more effect to negative than belongs to affirmative words. In fhort, to say that a ftatute merely declaratory of the common law, being expreffed in negative words, fhall operate on subjects to which the common law is not applicable, feems to be a direct contradiction; for, how can a ftatute be merely declaratory, if : if it is in any degree introductive of a new law? However, there are books, in which Lord Coke's distinction, in respect to negative ftatutes declaratory of the common law, is denied. See W. Jo. 270, 271. 289. If those, who oppose his opinion, had meant only to fay, that in the instances, by which he illustrates this rule, the negative words of the ftatutes not only import fomething more than a declaration of the common law, but were alfo intended to annihilate all particular customs clashing with it, or, that on other accounts the inftances were not apt, there might poffibly be fome colour for their diffenting from Lord Coke: but what is professed to be controverted, is the diftinction itself, which, as we understand it, feems to be perfectly unexceptionable. S 39. Lord Coke fays, the ftatute 34 Edw. 1. pro- Idem. vides, that none fhall cut down any trees of his own, within a foreft, without the view of the forefter. But, in as much as this act was in affirmance of the common law, a man may prefcribe to cut down his woods, within a foreft, without the view of the forefter. This doctrine has been frequently denied; and is fully difcuffed by Mr. Hargrave, with his usual Id. n. 15. learning and ability. S 40. A man cannot prescribe against another's Aldred's Cafe prescription: for the one is as ancient as the other. 9 Rep. 57. Thus, if a man prescribes for a way, light, or other 2 Mod. 105 easement, another cannot alledge a prefcription to pre vent the enjoyment of it. M m 4 $ 41. A pre |