ADDENDA. Page 78, fourth line from the bottom. An easement, such as a right to use a pump, is a discontinuous easement, and requires definite words to create it, and differs from a continuous easement, such as a right to drains, which passes with the premises to which it appertains. Upon the severance of the ownership of two tenements, a discontinuous easement over one of such tenements will not pass and attach to the other tenement without words expressly creating an easement de novo, and therefore where a will contained a devise to C. P. of a house and garden as now in the occupation of T. A., and a devise to W. P. of an adjoining house and garden, it was held that no right to go to and from, and draw water from a pump in the garden of W. P., passed to C. P. or her assigns, although, at the date of the will, T. A. occupied the first-named house and was in the habit of using, but not as of right, the said pump. (Polden v. Bastard, 11 W. R. 778; 2 New Rep. 356. See Pyer v. Carter, 1 H. & N. 916, post, pp. 78, 79, 101.) When easement will not pass. Page 234, at end of second paragraph. B., having been in possession of an estate as first mortgagee for upwards of twenty years, on being applied to for an account of the rents and profits on behalf of a person who had a subsequent charge upon the property, replied as follows:-" In answer to your letter I beg to say I deny the claim of your client. If he were entitled to the account, it would be of no use as the rents and profits of the estate have never been sufficient to pay the interest of the first charge." This letter was held not to be an acknowledgment of the plaintiff's right to redeem within 3 & 4 Will. 4, c. 27, s. 28. (Thompson v. Bowyer, 2 New Rep. 504; 11 W. R. 975; 9 Jur., N. S. 863.) What not an acright to redeem. knowledgment of Page 502, at end of third paragraph. 17 & 18 Vict. c. By a will made in 1848, a testator, after directing payment of his debts, Exoneration of &c. out of his personal estate, bequeathed the residue to his daughter, who real estate, stat. predeceased him without issue. The testator also devised his real estate 113. to trustees upon certain trusts for the benefit of his daughter and her children with a gift over. The real estate was subject to a mortgage. In 1861 the testator made another testamentary disposition, but it made no reference to the former will, and only contained the bequest of a legacy. The devisee claimed to have his real estate exonerated from the mortgage debt it was held, that the will was made at the time of the statute 17 & 18 Vict. c. 113, and that the testamentary instrument, 1861, did not bring the will within the operation of the statute, and therefore the devisee was entitled to have the estate exonerated out of the personalty. Lord Westbury, C., observed, "A difficulty would undoubtedly have arisen if the parties were claiming not entirely under the will of 1848, but claiming the property in question under and by virtue of a will actually made in 1848, but republished at a subsequent time, and the devises in which took effect quoad any particular estate by virtue only of that subsequent republication. There would have been a difficulty in applying to devisees claiming by virtue of a testamentary instrument made at one time and republished at another, and having an effect partly upon property existing before the date of the original making and partly upon property acquired in the interval between the original date and the date of the republication, because such persons could not be said in the language of the statute to be claiming under 'a will already made.' They would be claiming partly by virtue of a will that was already made and partly by virtue of the operation given to that instrument from the fact of its republication. But that is not the case here. The parties here claim under and by virtue of the will of 1848, and the will of 1848 does not cease to answer the description of ‘a will already made,' because it may have been republished at a time subsequently to the 1st of January, 1855. I am, therefore, clearly of opinion, that within the spirit of the act and the intent of the act to prevent an unjust retroactivity of the statute, and within the words of the act, this will under which the present controversy arises was 'a will already made' within the meaning of those expressions at the time when this act received the royal assent." (Rolfe v. Perry, 9 Jur., N. S. 853.) Thomas Ingle 14 March 1868 STATUTES RELATING TO REAL PROPERTY, PASSED IN THE REIGNS OF KING WILLIAM IV. AND QUEEN VICTORIA. PRESCRIPTION. 2 & 3 WILLIAM IV. CAP. 71. An Act for shortening the Time of Prescription in certain I. Time limited for establishing rights of common and other profit or benefit, except tithes and rent from land. II. Limitation of time as to ways, easements and watercourses. VI. Period less than that provided by statute not to be allowed. VII. Saving in favour of persons under disabilities. VIII. Time excluded in computation of period of forty years. I. TIME LIMITED FOR ESTABLISHING RIGHTS OF COMMON c. 71, s. 1. WHEREAS the expression "Time Immemorial, or Time whereof 2 & 3 Will. 4, S. B of Claims to right other profits be defeated after joyment by c. 71, s. 1. showing the commencement. 2 & 3 Will. 4, or of the Duchy of Cornwall (d), or of any ecclesiastical or lay person, or body corporate, except such matters and things as are herein specially provided for, and except tithes, rent, and services, shall, where such right, profit, or benefit shall have been actually taken and enjoyed by any person claiming right thereto without 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 After sixty years' be defeated; and when 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 enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing (e). enjoyment the right to be abso lute, unless had by consent or agreement. This act extended to Ireland. Subjects included in first section. (a) By 21 & 22 Vict. c. 42, the provisions of the act 2 & 3 Will. 4, c. 71, shall, after the first day of January, 1859, extend and apply to Ireland. (b) The reader is referred to a subsequent part of this work, as to the nature of prescription, the difference between it and custom, what things may or may not be claimed by prescription, and how a right depending upon may be lost. (See post.) it (c) As to rights of common, see post. (d) The provisions of this act are not affected by the Act for limiting Actions and Suits by the Duke of Cornwall, in relation to Real Property. (23 & 24 Vict. c. 53, s. 2.) (e) The several decisions upon this statute, although relating to many different subjects, have for the most part a relation to each other; the more convenient course therefore will be to commence with the statute and the several decisions upon it, rather than to distribute them amongst the subjects which are hereafter considered separately. The first section relates to such claims as may be lawfully made at common law, by custom, prescription, or grant, to any right of common or other profit or benefit to be taken or enjoyed from or upon any land. Tithes, rent and services are excepted from this act. The stat. 2 & 3 Will. 4, c. 100, provides the limitation of time with respect to claims of a modus decimandi, or exemption from, or discharge of tithes. ( (See Acts for the Commutation of Tithes and Supplement thereto, by Shelford, 3rd ed.) The stat. 3 & 4 Will. 4, c. 27, post, limits the time within which actions and suits must be brought respecting tithes not belonging to a spiritual or eleemosynary corporation sole. The limitation of time for the recovery of tithes is not affected by the Act for the Commutation of Tithes in England and Wales. (See 6 & 7 Will. 4, c. 71, s. 49.) It must be borne in mind that the first section of this act includes different subjects from those in the second, which distinguishes between easements and common, or profit à prendre, and that a different limitation is established for the first and latter cases. (Bailey v. Appleyard, 8 Ad. & Ell. 167; Lawson v. Langley, 4 Ad. & Ell. 890; Jones v. Richard, 5 Ad. & Ell. 413.) The right to receive air, light, or water, passing across a neighbour's land, may be claimed as an easement, because the property in them remains common; but the right to take "something out of the soil" is a profit à prendre, and not an easement. (Manning v. Wasdale, 5 Ad. & Ell. 764; 1 Nev. & P. 172; Blewitt v. Tregonning, 3 Ad. & Ell. 554; 5 Nev. & M. 308; Bailey v. Appleyard, 3 Nev. & P. 257; 8 Ad. & Ell. 161.) A right, claimed by the inhabitants of a township, to enter upon the land of a private person and take water from a well therein for domestic purposes, is an easement and not a profit à prendre, and may therefore properly be claimed by custom. (Race v. Ward, 4 Ell. & Bl. 702; 24 Law J., Q. B. 153; 1 Jur., N. S. 704.) The court held an alleged custom to be bad for all the inhabitants occupying lands in a district to enter a close and take be substantiated by an user however long. (Per Byles, J., Attorney-General 2 & 3 Will. 4, c. 71, s. 1. To a declaration for breaking and entering the plaintiff's close and taking Profit à prendre. his fish, a custom pleaded for all the inhabitants of a parish to angle and catch fish in the locus in quo was held to be bad, as this was a profit à prendre, and might lead to the destruction of the subject matter to which the alleged custom applied. (Bland v. Lipscombe, 4 Ell. & Bl. 713, n. (c).) The liberty of fowling has been decided to be a profit à prendre. (Davies' case, 3 Mod. 246.) The liberty to hunt is one species of aucupium, and the taking of birds by hawks seems to follow the same rule. The liberty of fishing appears to be of the same nature; it implies that the person who takes the fish, takes for his own benefit; it is common of fishing. (Anon., Hardr. 407.) The liberty of hunting is open to more question, as it does not of itself import the right to the animal when taken; and if it were a licence given to one individual, either on one occasion or for a time, or for his life, it would amount only to a mere personal licence of pleasure, to be exercised by the individual licensee. But in the case of a grant by deed"of free liberty with servants or otherwise to enter lands and there to hunt, hawk, fish and fowl"-to persons, "their heirs and assigns," where it is apparent that not merely the particular individual named, but any to whom they or their heirs choose to assign it should exercise the right, it has been considered that an interest, or profit à prendre, was intended to be granted. (Per Parke, B., Wickham v. Hawker, 7 Mees. & W. 78, 79.) The property in animals feræ naturæ, while they are on the soil, belongs to the owner of the soil, and he may grant a right to others to come and take them by a grant of hunting, shooting, fowling, and so forth, and such a grant is a licence of a profit à prendre. Substantially it may be reserved by the owner of the fee simple when he alienates, although it is considered that, technically speaking, in such a case it is a regrant of the right by the alienee of the fee simple to the alienor. (Ewart v. Graham, 7 H. L. 344, 345, per Lord Campbell.) "ment. The 1st section requires in the case of a right of common or a profit à Proof of enjoyprendre, enjoyment "without interruption for the full period of thirty years;" the most undoubted exercise of enjoyment for twenty-nine years and three quarters will not be sufficient. (Bailey v. Appleyard, 8 Ad. & Ell. 164. See Flight v. Thomas, 11 Ad. & Ell. 688, post.) This period of thirty years means next before the commencement of the action, when the right comes in question. (See post, s. 4, and note.) Before the passing of this act, a prescriptive claim was a claim of immemorial right; the evidence in support of it was such as a party might be able to give in such a case; and the jury were to draw their inference from such proof as could be produced. Now the burden of establishing an immemorial right is withdrawn, and the proof is limited to thirty years. But the party prescribing must prove his right for that whole period, and no presumption will be drawn from evidence as to part of that period. (See 8 Ad. & Ell. 167.) The plaintiff prescribed under this statute, first for a right of pasture thirty years next before the commencement of the action; and, secondly, for a right of simply turning on cattle for twenty years. No evidence was given of acts of depasturing at a period commencing more than thirty years before the commencement of the suit; but that more than twenty |