on the weakness of that of the possessor, who has a right against every man who cannot show a better title (x); and when the possession is lawful, and not that of the lessor of the plaintiff in ejectment, the possessor may defend himself upon his title, though twenty years have run against him before he took possession (y), and there is nothing in the sections 2 and 3 of the statute 3 & 4 Will. 4, c. 27, or in the authorities by which they have been expounded, to abridge the protection given to possession, or to shift from the plaintiff the burden of proving a possessory title unbarred by the Statute of Limitations (z). If, however, the possessor prove no right to the possession, no title, no conveyance, but rests on his mere naked possession without any evidence how or when he acquired it, he is not in a condition to call for any presumption in his favour (a); and where he relies upon his possession alone, and it can be referred to a conveyance by a tenant in tail barring himself only and not his issue, the possession will be so referred, and the heir in tail plaintiff in ejectment need not explain the possession or show that the conveyance was not by fine or recovery (b).

Lord St. Leonards v. Ashburner.

At the Spring Assizes, 1869, held at Lewes before Mr. Baron Bramwell, was tried a case (c) which furnishes a clear, decisive, and important illustration as well vantages of the of the policy, the benefits, and the great public advantage

General ad

Statutes of Limitation.

(x) Sticker v. Burney, 1 Lord Raym. 741; 2 Salk. 421; Doe d. Harding v. Cooke, 7 Bing. 346; Roe d. Haldane v. Harvey, 4 Burr. 2487; Doe d. Crisp v. Barber, 2 T. R. 749; Doe d. Rogers v. Mears, Cowp. 129; Doe d. Carter v. Barnard, 13 Q. B. 945; 1 East, 244.

(y) Doe d. Burrough and Ux. v. Reade, 8 East, 353.

(z) 15 Ir. Law Rep., N. S. 288. (a) Doed. Hammond v. Cooke, 6 Bing. 174.

(b) Doe d. Smith v. Pike, 3 B. & Ad. 738.

(c) Lord St. Leonards v. Ashburner.

in general of the Statutes of Limitation, as of the sufficiency of naked possession against a mere wrongdoer, and of the propriety of using those statutes as a protection against imaginary claims.

The action was ostensibly one of trespass, but in reality to try the title to the land in question. The possession of the plaintiff had existed for forty years, and on various occasions during that period he exercised acts of ownership, such as planting trees on the land, cutting them down, sporting over the land, and beating the boundaries. This possession and these acts he proved and relied upon, without producing any documentary evidence of his title. Title deeds, said the learned baron, come to little without evidence of actual enjoyment, for otherwise any of them might pretend to give away the land of anybody else. Parchment comes to little. The great question is as to actual enjoyment.

Naked possession, with acts of ownership, against a wrongdoer.

deeds.

The noble and learned plaintiff refused the produc- Non-production of any of his title deeds, and Mr. Baron Bramwell tion of title said the refusal had his sympathy, as entirely in accordance with sound sense, with justice, and with law. For it appeared to him extremely hard that a man should commit a trespass upon the land of another, and then say to him, "Produce your title deeds and show that the land is yours!" Surely he might fairly answer, "You have no right to call upon me to do so, for I am in possession and you are a trespasser. Produce your own deeds."

tutes as a de

fence.

The learned baron also said that he should be sorry Propriety of if it were ever supposed that a man may not righteously using the statake advantage of such a title. A great jurist had justified it on the ground that it was much harder that a man should lose what he had long held, under the impression that it was his, than that another should get what he had never had, and never supposed to be his (d).

(d) Vide ante, pp. 7-23, 125–130.

BOOK III.

PRESCRIPTION AT COMMON LAW.

Prescription in general, what.

Prescription

at common law.

Consists of prescription proper and custom.

Differences between them.

CHAPTER I.

THE NATURE OF SUCH PRESCRIPTION.

PRESCRIPTION, the mother of repose (a), in the largest acceptation of the term, is a title to things either corporeal or incorporeal by the mere enjoyment thereof for the time allowed by law; as to things corporeal by possession, in the Roman law called usucaption, and as to things incorporeal by quasi possession, or immemorial usage merely, ex usu et tempore (b).

Prescription, however, as applied to the acquisition, by immemorial usage, of things incorporeal or rights, either as incident to things corporeal, or as not so incident but in gross, and whether by prescription, as contradistinguished from custom, or by custom, is termed prescription at the common law by immemorial usage, as contradistinguished from the statutory time of limitation, and is where a custom, or usage, or other thing, hath been used, for time whereof mind of man runneth not to the contrary (c), or, as Lord Coke says, a title by use and time allowed by the law, a mere usage in pais (d); and consists of two branches, namely, prescription commonly so called in contradistinction to custom, and custom.

Prescription and custom, as distinguished from each other, although having in many respects, as will be

(a) Plowd. 357, 368; 2 Inst. 202. (b) Bract. lib. ii. c. 22; Co. Litt. 113 a; 3 Cru. Dig. tit. xxxi. c. i. s. 1. Supra, Book II.

(c) Litt. s. 170; Co. Litt. 113a, b, 114 a, b, 115 a, b, 121 b, 122 a, b. (d) Co. Litt. 113 a, b.

hereafter shown, several qualities in common, yet differ in several essential particulars. The difference consists chiefly in the origin, with reference to the common law, in the persons who may claim, in the things which may be claimed by each of these titles, and in the mode in which, in pleading and otherwise, these titles are alleged or stated. The characteristic difference between the two titles most commonly stated is, that prescription properly so called is personal, whilst custom is local (e). Prescription and custom, said Coke, C. J., are brothers, and ought to have the same age, and reason ought to be the father, congruence the mother, use the nurse, and time out of memory to fortify both (f). Sometimes they are indeed said to be of contrary natures and incompatible, and cannot give being to the same thing (g), and sometimes all one (h); and that any difference between them consists rather in the manner in which they are claimed, and pleaded, than in their nature (¿), Their essential differences will appear in the next two chapters.

same thing.

Prescription and custom have been said to be so far Cannot give of contrary natures and incompatible, that they cannot title to the give being to the same thing (k). "Whether," said the court in Blewett v. Tregonning (1), " a prescriptive and a customary right to the same privilege can by possibility exist in respect of the same land, if each be distinctly proved by proper evidence applicable to each, was an abstract question not necessary to decide" (m); but the court held that the same evidence which would prove a prescriptive right could not be used to prove a customary one.

(e) Co. Litt. 113 b; Jenkin v. Vivian, Poph. 201; 2 Com. 263. (f) Rowlesv. Mason, 2 Brown). 192, 198.

(g) 1 Ventr. 389.

(h) Cro. El. 363; Day v. Saradge, Hob. 85.

(i) 1 Ventr. 389; Clarkson v.
Woodhouse, 5 T. R. 412, n.
(k) 1 Ventr. 389 et seq.
(1) 3 Ad. & E. 554, 588.
(m) See also Padwick v. Knight,
7 Ex. 854.

A prescriptive right may be neither.

Inseparable incidents to prescription at common

law.

Effect of the incident of

time.

A prescriptive right, however, may be neither a prescription properly so called, nor a custom, but in its nature between the two. Thus a local prescription to privilege persons in a certain place and condition is not a custom, because it concerns the discharge of persons and is merely local; nor a prescription, because not annexed to any estate or any person, but in relation to a certain place and condition, and yet is rather termed a prescription, being by way of discharge (p).

The two inseparable incidents to a title by prescription at common law are possession or usage and time, and the usage must be long, continual and peaceable (q), or, in technical language," for time whereof mind of man runneth not to the contrary," that is, that no man alive has heard any proof, or has any knowledge to the contrary (r); and in pleading such a title it ought to be expressed by time out of mind (s), or by some equivalent expression (†). That time is from the first day of the reign of King Richard the First, 1189, and the proof may be, either by record, or sufficient matter of writing, or by a man's own proper knowledge; and the former proof, although it exceed the memory, or proper knowledge of any man living, is within the memory of man (u).

The consequence of this is, that a claim by prescription, however reasonable in itself, if shown to have commenced within this period, cannot be sustained. A bad and mischievous law, and one which is discreditable to us a civilized and an enlightened people, and fraught with inconvenience in many cases in its application (x).