PRESCRIPTION. "No custom is to be allowed, but such custom as hath been used by title of prescription, that Is to say, from time out of tniud. But divers opinions have been of time out of mind, &e and of title of prescription, which is all one in the law." § 170.) According to this passage, " time out of mind," and •' proscription," which are the Fame thing in Law, are easential to custom : another essentlal 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 insuperable incidents of time and usage; • but it 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 " preseribeth that," &c. ; stating, after the word " {{,rescribcth," the uature of his claim.
The following Is an example of a prescription (Co. Litt, 114, a) :— " I. S., seised of the manor of D. lu fee, prescribeth thus : that I. S., his ancestors, and all whose estate he bath in the aaysl manor, had 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 chin 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 copyholders 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 custom, 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 tho inhabitants of a pariah. The following definition of prescription appears to be both sufficiently comprehensive and exact :—" Prescription is when a man claimeth anything for that he, his ancestors, or predecessors, or they whose estate he bath, have had or used anything all the time whereof no memory is to the contrary." (T. de La Ley.) From this definition it follows that prescription may beta claim of a person as the heir of his ancestors, or by a corporation as representing their prelecee. aors, 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 persona, attorneys for instance, may prescribe that they and all attornc a of the same court have certain privileges; it seems indifferent whether this is called prescription or custom, but it is more consistent with the old definitions to call it prescription, since it is not a local usage, and it is by or on behalf of a determinate number of persons, that is, 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 pre scription, 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 'taro been time out of mind, continuous, and peaceable. " Time out of mind " means, that there must be no evidence of non-usage or of interruption iucon aistent with the claim and of a date subsequent to the first year of Richard L, which is the time of the commencement of legal memory. If it can be shown, either by evidence of persona living, by record, or writing, or by any other admissible evidence, that the alleged usage began since the first of Richard 1., the prescription cannot be main tained. Repeated usage also must be proved in order to support the prescription, but an uninterrupted enjoyment for twenty years has been considered sufficient proof, where there is no evidence to show the commencement of the enjoyment. [Pitesumr noo.] The thing prescribed for must be something definite. It must also be reasonable ; and it must not be inconsistent with any established principle of law ; for instance, it is said that a sheriff cannot prescribe for taking gifts for doing the duties of his office. It follows generally, that there can be no prescription to do any wrong or commit nuisance, or for a thing contrary to a statute. No prescription is good which is against the king's right (subject to the limitations hereafter mentioned), conformably to the maxim, Nullum tempus oecurrit regi ; yet a grant from the crown may be presumed.