Recent Acts have made some altera tions as to prescription, and limited the time within which actions can be brought or suits instituted relating to real property. The 3 & 4 Wm. IV., c. 27, applies to every thing of a corporeal nature, which is land in the sense in which land is interpreted in that Act ; but it only applies to those kinds of pro perty of an incorporeal nature, which are advowsons, annuities, and rents. The 2 & 3 Wm. IV., c. 100, applies only to cases of modus and exemption from tithes. The 2 & 3 Wm. IV., c. 71, which is entitled "An Act for Shortening the Time of Prescription in certain cases," applies (§ I) to "claims which may be lawfully made at the common law by custom, prescription, or grant to any right of common or other profit or benefit to be taken from or upon any land, &c., except such matters and things as are therein specially provided for, and except tithes, rents, and services ;" (§ 2) " to any way or other easement, or to any watercourse, or the use of any water," &c.; and (§ 3) to the use of light. No claim to the things comprised within this statute " shall, when such right, profit, or benefit (as is mentioned in § 1) shall have been actually taken and enjoyed by any person claiming right thereto, with out interruption for the full period of thirty years, be defeated or destroyed by showing only that such right, profit, or benefit was first taken or enjoyed at any time prior to such period of thirty years ; but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated ; and where such right, profit, or benefit shall have been so taken and enjoyed as aforesaid, for the full period of sixty years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was taken and en joyed by some consent or agreement expressly made or given for that pur pose by deed or writing." As to the rights enumerated in the second section, the terms of twenty and forty years are respectively fixed in the place of the terms of thirty and sixty years men tioned in the first section. Under the third section, which applies to lights, an absolute right to light may be acquired by twenty years' uninterrupted enjoy ment, unless the use has been enjoyed by some consent or agreement made or given by deed or in writing. The eighth section provides "that when any land or water upon, over, or from which any such way or other convenient water course or use of water shall have been enjoyed or derived, bath been or shall be held under any term of life, or any term of years exceeding three years from the granting there4 the time of the enjoy ment of any such way or other matter as therein last mentioned, during the con tinuance of such term, shall be excluded in the computation of the said period of forty years, in case the claim shall within three years next after the Pad or sooner determination of such term be re sisted by any person entitled to any re• version expectant on the determination thereof." Formerly it was necessary for all persons, who claimed in respect of an estate and had not the fee, to claim in the name of the person who had the fee, but under the last-mentioned Act " it shall be sufficient to allege the enjoyment thereof as of right by the oc cupiers of the tenement in respect whereof the same is claimed, for such of the periods mentioned in the Act as may be applicable to the case, and without claiming in the name or right of the owner of the fee, as is now usually done." This statute applies also to " any land or water of the king, his heirs, or succes sors, or any land being parcel of the duchy of Lancaster or of the duchy of Cornwall."
By the common law a man might pre scribe for a right which had at any time been enjoyed by his ancestors or predeces sors; but the statute of 32 Hen. VIII. e 2, enacted that no person should "make any prescription by the seisin or possession of his ancestor, unless such seisin or pos session hath been within threescore years next before such prescription made." This statute prevented any claim being made by prescription unless there had been seisin or possession within sixty years ; but it still allowed the commence ment of the enjoyment at any time within legal memory before the sixty years to be proved. The recent Act directs that "the respective periods of years thereinbefore mentioned shall be deemed to be the period next before* some snit or action wherein the claim or matter to which such period may relate shall be brought into question" (§ 4) ; but it only excludes proof of commencement of enjoyment, and it only gives the absolute right, when the several periods of years, reckoning backwards from the time of some suit or action wherein the matter is brought in question, are completed ; and it neither excludes the proof nor gives the absolute right if there has been an interruption, within the meaning of this statute, which has been submitted to or acquiesced in "for one year after the party interrupted shall have had notice thereof, and of the person making or authorising the same." In these cases, if there has been seisin or possession of the ancestor or predecessor within sixty years, the statute of Henry VIII. will still apply, and evidence of the commencement of enjoyment within legal memory may still be given.
The Acts here enumerated do not apply to a claim "of a manor, a court-leet, a liberty, separate jurisdiction, treasure trove, wreck, waifs, and other forfeitures, fair, market, fishery, toll, park, forest, chace, or any privilege legally known as a franchise, as well as anything pertaining to those rights which come under the description of dignities or offices." (Mr. Hewlett's Reply, tc., to certain Evidence before the Select Committee of the House of Commons on Records, February, 1836.) The term prescription is derived from the Roman law, but the meaning of the term in the Roman law is different. Blackstone says (iii. c. 17, note F.), " This title of prescription was well known in the Roman law by the name of usuca pio (Dig., 41, rit. 3, s. 3), so called because a man that gains a title by prescription may be said use rem capere." This re mark is not correct. Usacapio in the Roman law was founded solely on posses sion as such [PossEsstow], and it applied only to " corporeal things:" "by the laws of the Twelve Tables usucapion of move able things was complete in one year ; and of land and houses in two years." (Gains, ii. 42) " To usucapion was afterwards added, as a supplement, the longi temporis prmscriptio, that is, an exceptio (plea) against the " rei vindi catio," the conditions of which were nearly the same as in the case of usucapi on." (Savigny, Des Recht des Besitzes, p. 6.) The term prmscriptio was properly pplied to that which a plaintiff (actor) prefixed (prmscripsit) to the formula by which he made his demand against a defendant, for the purpose of limiting or qualifying his demand. It seems after wards to have been used as equivalent to exceptio or plea.
(Comyns, Prescription ; Viner's Abridgment ; Starkie, Law of Evidence; Blackstone, ii. c. 17.)