qualities, not of the house itself; without making new chimnies; by which no prejudice accrues to the owner of the wood; it is not any destruction of the prescription. Although he builds new chimnies, or makes an addition to the old house, he shall not lose his prescription but he cannot employ any of his estovers in the new chimnies, or in the part newly added. 39. A person having two old fulling mills, to which Luttrell's case, 4 Rep. 86. was annexed, by prescription, a right to a watercourse, pulled them down, and erected two mills to grind corn. It was resolved, that as the mill was the substance, and the addition demonstrated only the quality, and the alteration was not of the substance, but only of the quality, or the name of the mill, without any prejudice in the watercourse to the owner, the prescription remained. 3. § 23. 40. If a person has liberties by prescription, and Finch, B. 1. c. after takes a grant of them by letters patent from the King; this determines the prescription: for a matter in writing determines a matter in fait. 41. It has been stated that a prescription must have Ante, § 25. a continual and peaceable usage and enjoyment; therefore, a prescription may be lost, by neglecting to claim or exercise it. tates. 2 Comm. 266. 42. Sir W. Blackstone observes, that estates ac- Descent of prescriptive esquired by prescription are not of course descendible to heirs general, like other purchased estates, but are an exception to the rule: for, properly speaking, the prescription is rather to be considered as an evidence of a former acquisition, than as an acquisition de novo. Therefore if a man prescribes for a right of way in himself and his ancestors, it will descend only to the blood of that line of ancestors in whom he so prescribes; the prescription in this case being a species of descent. But if he prescribes for it in a que estate, it will follow the nature of that estate in which the prescription is laid, and be inheritable in the same manner; whether that were acquired by descent or purchase; for every accessary followeth the nature of its principal. 490 CHAP. II. Statutes of Limitation. SECT. 1. Negative Prescription., SECT. 40. Must be followed by an scription. SECTION I. Negative pre- THE second sort of prescription is that which arises from the several statutes of Limitation, in consequence of which no action can be maintained, for the recovery of any real property, after an uninterrupted possession of a certain number of years. It is different from the prescription by immemorial usage; for by that a right is acquired to an incorporeal hereditament: but by this last kind, no positive right or title is acquired, but only the remedy for the recovery of either a corporeal or incorporeal hereditament is taken away; from whence it may be properly called a negative prescription. And in a modern case, the Davenport v. Court of King's Bench said, the statutes of Limitation Tit. 19. operated as an extinguishment of the remedy of the one, not as giving the estate to the other. 2. This kind of prescription is as ancient as that which arises from immemorial usage. Thus we read in Bracton,-Longa enim possessio (sicut jus) parit jus possidendi, et tollit actionem vero domino, quandoque unam, quandoque aliam, quandoque omnem. Quia omnes actiones in mundo, infra certa tempora, habent limitationem. 3. By the old law no seisin could be alleged by the demandant in a real action, but from the time of King Henry I. By the statute of Merton, 20 Hen. 3., the seisin must have been alleged from the time of King Henry II.; and by the statute of Westm. 1. 3 Edw. 1. c. 59. the seisin must have been alleged from the time of King Richard I. Tyrrell. 1 Inst. 114. b. 2 — 94, 238. § 3. - mitation. 4. The period established by the last of these statutes Statutes of Liincreased every day, till at last there was scarce any 3 Comm. 189. limitation at all; so that it became necessary to fix a certain time within which a claim to lands and tenements must be made, and beyond which an uninterrupted possession became a good title, by operating as a bar to every kind of action. This was effected by the statutes 32 Hen. 8. c. 2. and 21 Ja. I. c. 16. which were made for the purpose of quieting the titles to estates, and avoiding suits; and have therefore been called statutes of repose. 山 right. 5. The first section of the statute 32 Hen. 8. enacts, As to writs of "That no manner of person or persons shall sue, have, or maintain any writ of right, or make any prescription, title, or claim of, to, or for any manors, lands, tenements, rents, annuities, commons, pensions, portions, corrodies, or other hereditaments, of the possession of his or their ancestor or predecessor; and declare and Dally v. King, 1 H. Black. 1. As to prescriptive rights. As to avowries. allege any further seisin or possession of his ancestor or predecessor, but only of the seisin or possession of his ancestor or predecessor which shall be seised of the said manors, &c. within threescore years next before the teste of the same writ." 6. In consequence of this clause, a writ of right cannot now be maintained by any person without shewing an actual seisin, by taking the esplees or profits, either in the demandant himself, or the ancestor under whom he claims, within sixty years. 7. As to incorporeal hereditaments, acquired by immemorial usage, the clause which has been just stated extends to them; therefore, nothing can be now claimed by prescription without shewing a possession within sixty years. 8. By the 4th section of this statute it is enacted, "That no person or persons shall make any avowry or cognizance for any rent, suit, or service, or allege any seisin of any rent, suit, or service, in the same avowry or cognizance, in the possession of his or their ancestors or predecessor or predecessors, or in his own possession, or in the possession of any other, whose estate he shall pretend or claim to have, above fifty years next before the making of the said avowry or edit. 1816, fol. cognizance." Statute at large Bevill's case, 4 Rep. 6. As to writs of formedon. This section only extends to rent suit and service; and not to such services as may not accrue within the time limited in it, of, vhich an account will be given hereafter. 9. In the two sections of this statute which have been stated, the word seisin is used generally and indefinitely. But it has been resolved, that as to a writ of right, it shall be intended of an actual seisin; and as to avowries, it shall extend to a seisin in law, as well as to a seisin in fact. 10. By the statute 21 Ja. 1. c. 16. s. 1. it is enacted, "That all writs of formedon in descender, formedon in remainder, and formedon in reverter, of any manors, lands, tenements, or other hereditaments whatsoever, at any time thereafter to be sued or brought, by occasion or means of any title or cause thereafter happening, shall be sued or taken within twenty years next after the title and cause of action first descended or fallen; and at no time after the said twenty years." 11. It has never been determined whether, under this statute, a person claiming an estate tail by descent, is barred by the neglect of the preceding person, entitled to the estate tail, in not making an entry, or bringing a writ of formedon, within twenty years from the time when his title accrued. It was contended that he was not barred, because the issue in tail do not take in the character of heir to their immediate predecessor, but as issue of the body of the first donee, and described as such in the original gift of the estate tail, and were therefore not affected by any act of their ancestors. That where a person becomes entitled to an estate tail, as son, nephew, or cousin, to the person last seised of it, a new title and cause of action first descends to him, as issue of the original donee; and so he is within the letter of the statute, and has a new period of twenty years to bring his formedon. That although a tenant in tail may bar his issue by Tit. 35, 36. fine, in consequence of the statutes made for that purpose; and by a common recovery, on account of the supposed recompence in value; yet that, if he does not avail himself of these modes of barring his estate, it is still within the protection of the statute De Donis; and he cannot by any other positive act of his, or by his laches, destroy the rights of those who become entitled to it after his death. 12. The general opinion however is, that in consequence of the words first descended, if a person entitled to an estate tail neglects to bring his writ of formedon within twenty years after his title first descends, he and also his issue will be barred; for if the issue brings a formedon, it may be answered that the title first descended to his ancestor or predecessor upwards of |