CH. 26.
Art. 5.

Cro. El. 722,

Pond, or

Bond.

2 Esp. 29.

1231.)
"The avowant must allege what estate he is seized
of, therefore this avowry is bad," and the verdict has not cured.
it, as the defts. have stated a defective title, and not merely
shewn a title defectively stated.

16. If the party has a general common, that is, for all Bushword v. kinds of cattle, he may well prescribe for common for any particular sort; for this comes within the general prescription. As where the party prescribed for common for 100 sheep, and proved 100 sheep and six cows. This was well; but otherwise, if he lay one prescriptive right and proves another; as if he claims common for 100 sheep and proves common for 120. In this case he fails in proving the prescriptive right he claims.

Bul. N. P. 59, cited Phil.

Evid. 163
1 Taun. 642.

17. Though it is a general rule the party must state his prescriptive right fully and as it exists, as it is entire; and though this right like every right must be proved as laid, yet this does not mean in every minute circumstance; and therefore the prescription alleged and that proved, may vary or differ as to the quantity of land to which it extends or to which it is appurtenant.

18. As where A prescribed to have common to his messuage and twenty acres of land, and in evidence he proved but eighteen acres. Held, this evidence proved the prescription laid.

§ 19. So if the party lay his prescription not so large, and it more ample than he has laid it, he does not fail, if the prove nature of it is the same, as where the prescription was to tether horses from and after a certain day named, yearly; and he proved his prescriptive right to be on that day, also the day before it, and on a certain Monday, and afterwards during the year at pleasure.

§ 20. But as in Pring v. Henly, if the deft. avow taking damage feasant, and the plt. prescribe for common for all commonable cattle, and prove common for sheep and horses only, he fails; for here he claims one kind of common, as for commonable cattle, and proves another as for sheep and horses. But otherwise, as above, if he had prescribed for a common for any particular sort of cattle, and proved his right to a general common, as the common proved would include that claimed. So if a man prescribe for common appendant to 300 acres in four towns, and proves it appendant to two hundred acres in two towns only, his evidence does not prove his prescription.

21. It is laid down in this case as a general rule, that whatever may be gained by usage without matter of record, may be claimed by prescription, such as ways, estrays, treasure-trove, wreck of the sea, &c. but such things as are not

forfeited but by matter of record, as felon's goods, cannot be prescribed for.

Cн. 26.

Art. 5.

22. And in cases of prescription it is allowable to give hearsay evidence in order to prove general reputation; as Bul. N. P. where the issue was of a right of way over the plt's. close, 295. deft's. were allowed to give evidence of a conversation between persons not interested, then dead, wherein the right to the way was agreed.

case. See

$23. How the thing to which the prescriptive right belongs 4 Co 86, 88, may be altered, without losing it. And generally the owner of Lutteral's the thing may alter it as suits, if he do not prejudice him Mills, &c. against whom this right is claimed. As where the owner of fulling mills prescribed for a stream or a great part of it through one's land, as running to and turning his said mills, he may convert them into grist mills. This does not destroy the prescription. So where a tenant is bound to cover his lord's hall and it falls, and the lord builds a new one in the same place and of the same bigness, the tenant is bound to cover it; but not if of greater length or breadth or in another place, or if it be converted into a cow-house, stable, kitchen, &c.; for in such case the lord by his own act cannot alter the nature of the tenure, nor of the service the tenant is bound to perform. So if one has estovers by grant or prescription to his house, though he alters the rooms or chambers of his house, as to turn a hall into a parlour, and such alterations of the quality, and not of the house itself, and without making new chimneys, by which no prejudice accrues to the owner of the wood, it is no destruction of the prescription. So "if he builds new chimneys or makes a new addition to his old house, by that he shall not lose his prescription, but he cannot employ or spend any of his estovers in the new chimneys, or in the part newly added; the same law of conduits and of water pipes," &c. So a corporation loses not its franchises by a change of its name, for no one is prejudiced thereby.

Beavan v.

24. Replevin for taking corn, Sept. 20, 1784, at Peter- 1 H. Bl. 5, 9, church. In the avowry and cognizance a special case was Delahay & stated, bar &c. And held by the court, that a custom that a Lewis. tenant may leave his away-going crop in the barns &c. of the farm for a certain time after the lease is expired and he has quitted the premises, is a good custom.

Costa r.

Clarke.

$25. Custom, how uncertain. Replevin for a cow. The 2 Bos. & P. deft's. third plea; a cognizance as bailiff of R. S. to whom he 257, De had underlet the locus in quo. The plt. pleaded in bar to this avowry, that said field, containing 100 acres whereof said place in which &c. was parcel, time out of mind, of right hath been and ought to have been, and still of right ought to have been, open and common in manner following, "that is to say,

CH. 62

Art. 5.

North.

open every three years, that is to say, on or before the 15th day of October, when the corn was cut and carried off the same for a long time, to wit, for three weeks and upwards:" that before said time when &c. one J. B. was seized in fee of a messuage and two acres of land with the appurtenances in "and that he and all those whose estate he had and hath in the said messuage and land, with the appurtenances for the time being from time whereof &c. have used and been accustomed to have, and of right ought to have for themselves and their tenants, occupiers of said messuage and land with the appurtenances common of pasture for all their commonable cows levant and couchant on said messuage and land, with the appurtenances in the said field, of which the said place in which &c. is parcel, every third year when the same is open, and not sown and cultivated in the manner aforesaid, as to the said messuage and land with the appurtenances appertaining, that the said J. B. demised to the plt. from year to year; that in virtue of the said demise the plt. became possessed of the said messuage and lands with the appurtenances, and being so possessed before the said time when &c. put the said cow, being his commonable cow, levant and couchant, on his said messuage and land with the appurtenances, into the said field, to use his common of pasture there as it was lawful for him to do, the same time, from thence until and at the taking of the same as aforesaid, being when the said field was, and ought to be open and common as aforesaid that the said cow was in the said field in which &c. parcel &c., until the deft. of his own wrong &c. and this &c. wherefore &c." And the pleadings were continued to a rejoinder and issue. Verdict for the plt.; on motion &c. for a rule &c. Held, this custom as pleaded was uncertain and bad, both as to its commencement and duration. Commencement uncertain on or before the 15th of October, since the corn might not be cut and carried off before that day; but the clear uncertainty was in the words three weeks and upwards, and for any thing that appeared the cow might have been put in after the three weeks expired; possibly had it been alleged she was put in within the three weeks, the court after verdict would have supported this prescription, and the time under the words and upwards is wholly uncertain, and though these words be under a videlicit, they cannot be struck out.

:

1 Saund. 351, 26. In this case the party claiming a prescriptive right of 354, Potter v. common in a certain 100 acres, admitted in his plea the other party was seized in fee thereof; but added, he the plt. was seized of an ancient messuage with the appurtenances, in being one of the freehold tenements &c. "And that there are and from time whereof &c. were divers ancient mes

suages" &c. Then the plt. laid a prescription, that the several tenants of these messuages being seized thereof in their demesne as of fee, and all those whose estates they severally have in the same, for all the time aforesaid, have had the sole &c. pasture of said 100 acres for all their cattle &c. But the number of tenements or messuages was not stated, but only "divers ancient messuages," and held well,

ART. 6. Pleadings in prescriptions.

CH. 26.

Art. 6.

1. Every one who pleads a prescription ought to allege it Co. Lit. 113. in him who has the inheritance, as to say he is seized in fee, and he and his ancestors, or he and those whose estate he has, or that a corporation and their predecessors &c. have had or used &c.

Wood.

2. All prescriptions are in their nature entire; and when 4 D. & E. 157, they are pleaded, the adverse party cannot deny a part only, Morewood but he must either demur or traverse the whole, and therefore if the deft. plead a prescription, and fail in proving any part of it in evidence he must fail in the whole.

§ 3. After verdict, it is well if a thing be alleged by way of 1 Lev. 177. prescription where it ought to be by custom. And if a custom be only inducement to an action, it is sufficient to be alleged quod solet, without saying solet et debet &c. And a plea of 1 Lev. 12. 3 D. & E. 147, prescription for common in a que estate is good after verdict, Clark v. King. though it be not in express terms alleged that the owners of the estate have used it time immemorial. It states a right of common in all those who held the estate, and unless a prescriptive right had been proved, the plt. could not have obtained a verdict. Not stated in the plea they immemorially held the estate.

5. A custom that inhabitants or residents shall have profit 6 Co. 60, 61. in another's soil is merely void, unless as part of an easement, as gravel to repair a way, &c.

case.

Trespass in the plt's. close with cattle, horses, &c. with con- Gateward's tinuance; as to the hogs, deft. pleaded not guilty, and as to the residue, that the vill of Stixwold was an ancient vill and laying contiguous to said close, that within the said vill there is, and time out of mind has been, a custom, viz: "that the inhabitants within the said vill of Stixwold within any ancient messuage there by reason of their commorancy and residence in the same, had and were used and accustomed to have common of pasture in the said place, in which &c. for all and all kind of oxen, horses, and other large beasts, &c. &c., and also pleaded, that at said time &c. he was and adhuc est commorans et inhabitans in said town of Stixwold, and in an ancient house in Stixwold aforesaid, and so justified. Plt. demurred: resolved first, only four kinds of common appendant, appurte

CH. 26.
Art. 6.

Same case,
Cro. Jam.

162.

nant, in gross and by reason of vicinage, and that this common by reason of commorancy and residence is none of them.

6. Second. As he had no estate or interest in the house &c., but only "a mere habitation and dwelling," he could have no interest in the common in respect of the house.—This is the only point stated by Croke to have been formally decided by the court, and certainly this point was clear and alone sufficient for the decision of the cause; and as to the other decisions stated by Lord Coke as having been made, they were his own, or if made by the judges, they were not necessary to the decision of the case.

7. Third. Such common will be transitory and uncertain, "for it will follow the person, and for no certain time and estate, but during his habitancy." This kind of interest the law does not allow; for a custom must be certain and have continuance &c.

“for every

8. Fourth. Against the nature of common, common may be suspended or extinguished, but such a common will be so incident to the person that no person certain can extinguish it, but as soon as he that releases &c. removes, the new inhabitant shall have it."

§ 9. Fifth." He who claims it as an inhabitant can have no action for it."

Sixth. "In these words, inhabitants and residents, are included tenants in fee simple, tenants for life, for years, by elegit, &c. tenant at will &c., and he who hath no interest but only his habitation and dwelling." "And clearly, tenant in fee simple ought to prescribe in his own name; tenant for life, years, by elegit, &c., and at will &c. in the name of him who hath the fee, and by good pleading may enjoy &c.

§ 10. Seventh. No improvement can be made &c. states the difference between a profit to be taken in alieno solo, and an easement in it. As to a way, this every inhabitant may have, but not such profit. And a way or passage may well follow the person.

Eighth. As to copy holds. And every prescription ought to have a lawful beginning; but a custom, a reasonable one only, as gavelkind. This may be reasonable but cannot be intended to have a lawful beginning, "by no grant or act, or agreement, but only by parliament."

§ 11. Ninth. Held also, if the custom had been alleged, that quilibet pater familias infra aliquod messuagium, it would also be bad for the above causes.

There held," inhabitants, unless incorporated, cannot prescribe to have profit in another's soil, but only in matters of easement," as in way &c. to church, market, &c. So in matters of discharge, as to be discharged of toll, or of tithes &c.;