Natural persons and corporations. Classes of persons not incorporated. SECTION II. Who may claim by Prescription. PRESCRIPTION is commonly said to be personal, and for the most part applied to persons (i), and, in general, to one definite and certain person (k), either alone, or in alternis vicibus with others (1), or to a body corporate (m). All natural persons, and all bodies politic or corporate (n), created before the time of legal memory or by prescription (o), and when so claiming a right in gross, must allege its own existence from time immemorial (p). Persons not having any perdurable estate, and forming an indefinite class, but not incorporated, and who cannot take by grant from a private person, as inhabitants or parishioners (q), cannot claim by prescription properly so called. An indefinite class of persons, however, may sometimes claim by prescription. Thus for matters of privilege a prescription may be in general; for it is but a matter of exemption and personal, and is called a prescription in distinction to custom, because custom is (i) Co. Litt. 113b; Jenkin v. Vivian, Poph. 201; Rowles v. Mason, Brownl. 192, 198; Gravesend case, Ib. 177; Weekly v. Willman, 1 Ld. Raym. 405, 406; Baker v. Bearman, W. Jones, 367. (k) Rowles v. Mason, supra; Miller v. Spateman, 1 Saund. 343; Co. Comp. s. 33; Baker v. Bearman, supra. (1) Welden v. Bridgewater, Cro. El. 421. (m) Co. Litt. 113 b; Day v. Saradge, Hob. 85; Brickwood v. Nutt, 3 Keb. 281; 1 Ld. Raym. 386; Lord Sands v. Pinder, Čro. El. 898; Bennington v. Taylor, 2 Lutw. 1517. (n) Co. Litt. 113 b; Day v. Savadge, supra; Brickwood v. Nutt, supra; Lord Sands v. Pinder, supra; Corporation of Oxford v. Richardson, 4 T. R. 437; 2 H. B. 182; Mayor and Burgesses of Truro v. Reynalds, 8 Bing. 275; Mannall v. Fisher, 5 C. B., N. S. 856; Blackett v. Bradley, 1 B. & S. 940. (0) Co. Litt. 102 b; Pitts v. Gainee, 1 Ld. Raym. 558; The King and Edwards v. The Bailiffs of Allborough, 1 Keb. 308; Att.-Gen. v. Luton Board of Health, 2 Jur., N. S. 180. (p) See Pitts v. Gainee, supra. (g) Gateward's case, 6 Co. 59; Weekly v. Willman, 1 Ld. Raym. 405, 406; Gravesend case, 2 Brownl. 177; Lockwood v. Wood, 6 Q. B. 31; Constable v. Nicholson, 14 C. B., N. S. 230; Day v. Saradge, Hob. 85; Rogers v. Brenton, 10 Q. B. 36. merely local, and this is to persons, yet having respect either to a place, as all the citizens of London (r), or having respect to the condition of persons, as all serjeants-at-law, or all attornies of such a court (s); and such a prescription must be in generalty, to express the extent and nature of the privileges (t). grant from the Crown, incor porated. Although a class of persons not incorporated, as the Class of perparishioners, or inhabitants, or probi homines of a certain sons taking a place, cannot take by that designation a grant from a private person (u), yet they may so take by grant from the Crown; because to the extent and for the purposes, at least, of such a grant, they will be incorporated (x). Such persons, therefore, would seem to be capable of claiming by prescription as against the Crown. It is said to have been adjudged that the inhabitants of a town cannot be incorporated, without the consent of the major part of them, and that incorporation without that consent is void (y). This has been cited without remark (z). The context, however, in Brownlow affords no countenance to this proposition, which is entitled to little weight as authority. Claiming as a body corporate, and especially by prescription, such consent would be primâ facie presumed. It has been doubted whether there may not be a good prescription for the inhabitants of a parish to take stones from the waste for the repair of the highways (a). If such a prescription can be sustained, the ground would seem to be that as the waste is the property of the lord of the manor, such a right might have had a legal origin by agreement between him and them; or if, in the case before the court, the locus in quo was part of the (r) Day v. Savadge, Hob. 85. (8) 1 Roll. Ab. 264; 1 Ventr. 390. (t) 1 Ventr. 386. (u) Co. Litt. 3 a; Touch. 237. (a) Dyer, 100; 4 Leon. 190, ca. 299; Cro. El. 35; 3 Bulstr. 5. See also Lockwood v. Wood, 6Q.B. 50, 63; Willingale v. Maitland, 12 (y) 2 Brownl. 100. (2) Bac. Ab., Corporation B. Inhabitants cannot prescribe for easement in alieno solo. Overseers, cannot pre scribe. sea shore between high water mark and low water mark, and therefore primâ facie in the Crown, the right might have been the subject of a grant from the Crown to the inhabitants, under which they would be capable of taking quà inhabitants. The language of the plea in the case, that the locus in quo was contiguous to and adjoining to the sea shore or beach "between high water mark and low water mark," is not quite intelligible. Although inhabitants or parishioners may perhaps claim by prescription for matter of discharge, as in modo decimandi, or to be quit of toll (b), yet they cannot so claim for an easement in alieno solo; and stallage, or the right of going on the land of another person and pitching their stalls there on market days, is such an easement, but if claimed by them, without paying anything for the use of the soil, cannot be by prescription (c). Overseers or surveyors of highways, or overseers of churchwardens, the poor, or churchwardens, other than as respects churchwardens and overseers under statutory provision for special purposes (d), and not for any other purpose (e), and a parson and churchwardens who by custom, as in London, are a corporation to purchase lands (ƒ), cannot take by grant, and therefore cannot claim by prescription (g). A subject can against the Crown, At common law, notwithstanding the maxim nullum tempus occurrit regi, a subject may acquire by prescription and usage certain rights in the freehold or inheritance of the Crown, as common way, or estovers, and also certain things, as waifs, estrays, wreck, or such (b) See Baker v. Brereman, Cro. Car. 418; Bree v. Chaplin, 2 E. & Y. Tithe Ca. 270; 6 Q. B. 63. (c) See Lockwood v. Wood, 6 Q. B. 31, 62 et seq. (d) 9 Geo. 1, c. 7; 22 Geo. 3, c. 83; 59 Geo. 3, c. 12. (e) Woodcock v. Gibson, 4 B. & C. 462; Doe d. Norton v. Webster, 12 Ad. & E. 442; Uthratt v. Elkins, 13 M. & W. 772. (f) Cro. Jac. 532. (g) Padwick v. Knight, 7 Ex. 854; Constable v. Nicholson, 14 C. B. 230. like, of right belonging to the Crown (h), and as respects those rights and others similar so acquired, the legislature has placed the Crown and also the Duke of Cornwall in the same position as subjects generally (i); but as respects other rights of a similar nature to those just mentioned not embraced by legislative provision, and also as respects the things also just mentioned as so belonging to the Crown, and also as respects other similar rights not so embraced belonging to the Duke, the relative position, not only of the Crown and of the subject, but of the Duke and of other subjects, remains as at common law. As a subject may acquire by prescription rights against the Crown and against the Duke of Cornwall, so reciprocally the Crown and the duke may acquire such rights in the freehold and inheritance of the subject (k), and for the defence and preservation of such rights may avail themselves of the same laws as the subject (1). and the Crown against a subject. A spiritual person may prescribe for a portion of Spiritual tithes in the land of another, and also in non deci- persons. mando (m). A lay person, although in general incapable of pre- Lay persons for spiritual scribing for things spiritual as appurtenant to a tem- things. poral inheritance, may, under special circumstances, prescribe to have tithes in his manor as appurtenant to it (n). A person living out of a parish may claim by pre- Pew. scription a pew, either in an aisle, or in the nave, of the church of the parish (0). must prescribe. Every natural person, claiming by prescription things How persons which cannot be granted without deed and are not appendant to lands or tenements, must prescribe in him (h) Plowd. 322. (i) 2 & 3 Will. 4, cc. 71, 100. (k) Plowd. 322. (1) Ib. 243; 11 Co. 68. L. (m) 2 Co. 44. (n) 2 Co. 45. (0) Lousley v. Hayward, 1 You. & Jer. 583. L When in a que estate. When not. self and in his ancestors whose heir he is, because such things cannot pass without deed (p); but claiming thus things which are so appendant must prescribe in himself and all those whose estate he hath, or, as it is technically called, in a que estate (q) in the lands themselves, because the lands may pass by alienation without deed (r), that is, by feoffment. This reason, however, is no longer strictly applicable, for, although lands may pass by feoffment still, yet a feoffment at common law, unless now evidenced by deed, is void (s). Every body politic or corporate, whether sole or aggregate, claiming by prescription, must prescribe in the name of such body and of its predecessors, or in a like estate (†). A person claiming by prescription in a que estate must claim either as the owner in fee (u), or, having an interest less than the fee, in the name of the owner of the fee (v); and the freehold tenants of a manor must claim by prescription, and in a que estate (x); and a copyholder claiming a right in lands out of the manor must prescribe in the name of the lord (y). A prescriptive obligation on a person, such as to repair fences, need not be pleaded in a que estate, because the party pleading does not know the title, and may therefore say that the tenants and occupiers, from time whereof, &c., have been used to make and repair fences (z). (p) Litt. s. 183; Co. Litt. 121 a. (4) Co. Litt. 121 a. See Paddock v. Forrester, 3 M. & G. 903; Bennett v. Read, 1 Anstr. 322, n. (r) Litt. s. 183. (8) 8 & 9 Vict. c. 106, s. 3. (t) Co. Litt. 113 b. See Bennington v. Taylor, Lutw. 1517; Lord Sands v. Pinder, Cro. El. 898; Blackett v. Bradley, 1 B. & S. 940. (u) Co. Litt. 113b; Fort. 340. See also Ivimey v. Stocker, 12 (v) Foiston's case, 4 Rep. 31; (x) Thompson v. Roberts, Fortes. 339. (y) Foiston's case, sup. ; Hob. 86; Co. Litt. 121 a. (z) Per Cur., Jones v. Robins, 10 Q. B. 620, 635. |