PRESCRIPTION. " No custome is to bee allowed, but such custome as bath been used by title of prescription. that is to say, from time out of mind. But divers opinions have been of time out of mind, &c., and of title of prescrip tion, which is all one in the law." (Litt., § 170.) Accordiug to this passage, "time out of mind," and " prescription," which are the same thing in law, are essential to custom : another essential to custom is usage. But there is a claim or title which is specially called prescription, and which is like custom so far as it has the inseparable incidents of time and usage ; but it differs from custom in the manner in which it is pleaded, which difference shows the difference of the right. This claim is called prescription, because the plaintiff or defendant who makes it "prescribeth that," &c. ; stating, after the word "prescribeth," the nature of his claim.
The following is an example of a pre scription (Co. Litt., 114, a) :—" I. S., seised of the manor of D. in fee, pre scribeth thus : that I. S., his ancestors, and all whose estate he bath in the sayd manor, bad and used to have common of pasture time out of mind in such a place, &c., being the land of some other, &c., as pertaining to the same manor." The claim of a copyholder of a manor for common of pasture in the manor, alleges a custom time out of mind within the same manor, by which all the copy holders of the manor have had and used common of pasture in it. The claim by prescription then is properly a claim of a determinate person : the claim by cus tom, as opposed to prescription, is local, and applies to a certain place, and to many persons, and perhaps, it may be added, to an indeterminate number, as the inhabitants of a parish. The follow ing definition of prescription appears to be both sufficiently comprehensive and exact :—" Prescription is when a man claimeth anything for that he, his ances tors, or predecessors, or they whose estate he bath, have had or used any thing all the time whereof no memory is to the contrary." (T. de la Ley.) From this definition it follows that prescription may be a claim of a person as the heir of his ancestors, or by a corporation as representing their predecessors, or by a person who holds an office or place in which there is perpetual succession ; or by a man in right of an estate which he holds. It is said that certain persons,
attorneys for instance, may prescribe that they and all attorneys of the same court have certain privileges; it seems indifferent whether this is called pre scription or custom, but it is more con sistent with the old definitions to call it prescription, since it is not a local usage, and it is by or on behalf of a deter minate number of persons, that is, all the attorneys of a particular court. It is also said that parishioners may prescribe in a matter of easement, as a way to a churchyard, but not for a profit out of land : such a prescription, however, is not contained within the above definition, and is in all respects more properly a custom.
It is essential to prescription (subject to the limitations hereinafter mentioned) that the usage of the thing claimed should have been time out of mind, con tinuous, and peaceable. " Time out of mind" means, that there must be no evidence of non-usage or of interruption inconsistent with the claim and of a date subsequent to the first year of Richard I., which is the time of the commence ment of legal memory. If it can be shown, either by evidence of persons living, by record, or writing, or by any other admissible evidence, that the alleged usage began since the first year of Richard I., the prescription cannot be maintained. Repeated usage also must be proved in order to support the pre scription, but an uninterrupted enjoy ment for twenty years has been consi dered sufficient proof, where there is no evidence to show the commencement of the enjoyment. [PnEsustrrtoN.] The various rules as to prescription what may be prescribed for, iu what form the claim must be made, and how a prescrip tion may be lost or destroyed, belong to treatises on law. It is said that pre scription is founded on the assumption of an original grant which is now lost.