CH. 62 1 Saund. 351, North. open every three years, that is to say, on or before the 15th day of October, when the corn was cut and carried off the same for a long time, to wit, for three weeks and upwards:" that before said time when &c. one J. B. was seized in fee of a messuage and two acres of land with the appurtenances in "and that he and all those whose estate he had and hath in the said messuage and land, with the appurtenances for the time being from time whereof &c. have used and been accustomed to have, and of right ought to have for themselves and their tenants, occupiers of said messuage and land with the appurtenances common of pasture for all their commonable cows levant and couchant on said messuage and land, with the appurtenances in the said field, of which the said place in which &c. is parcel, every third year when the same is open, and not sown and cultivated in the manner aforesaid, as to the said messuage and land with the appurtenances appertaining, that the said J. B. demised to the plt. from year to year; that in virtue of the said demise the plt. became possessed of the said messuage and lands with the appurtenances, and being so possessed before the said time when &c. put the said cow, being his commonable cow, levant and couchant, on his said messuage and land with the appurtenances, into the said field, to use his common of pasture there as it was lawful for him to do, the same time, from thence until and at the taking of the same as aforesaid, being when the said field was, and ought to be open and common as aforesaid that the said cow was in the said field in which &c. parcel &c., until the deft. of his own wrong &c. and this &c. wherefore &c." And the pleadings were continued to a rejoinder and issue. Verdict for the plt.; on motion &c. for a rule &c. Held, this custom as pleaded was uncertain and bad, both as to its commencement and duration. Commencement uncertain on or before the 15th of October, since the corn might not be cut and carried off before that day; but the clear uncertainty was in the words three weeks and upwards, and for any thing that appeared the cow might have been put in after the three weeks expired; possibly had it been alleged she was put in within the three weeks, the court after verdict would have supported this prescription, and the time under the words and upwards is wholly uncertain, and though these words be under a videlicit, they cannot be struck out. § 26. In this case the party claiming a prescriptive right of 354, Potter v. common in a certain 100 acres, admitted in his plea the other party was seized in fee thereof; but added, he the plt. was seized of an ancient messuage with the appurtenances, in being one of the freehold tenements &c. "And that there are and from time whereof &c. were divers ancient mes suages" &c. Then the plt. laid a prescription, that the several tenants of these messuages being seized thereof in their demesne as of fee, and all those whose estates they severally have in the same, for all the time aforesaid, have had the sole &c. pasture of said 100 acres for all their cattle &c. But the number of tenements or messuages was not stated, but only "divers ancient messuages," and held well. ART. 6. Pleadings in prescriptions. CH. 26. Art. 6. 1. Every one who pleads a prescription ought to allege it Co. Lit. 113. in him who has the inheritance, as to say he is seized in fee, and he and his ancestors, or he and those whose estate he has, or that a corporation and their predecessors &c. have had or used &c. Wood. 2. All prescriptions are in their nature entire; and when 4 D. & E. 157, they are pleaded, the adverse party cannot deny a part only, Morewood v but he must either demur or traverse the whole, and therefore if the deft. plead a prescription, and fail in proving any part of it in evidence he must fail in the whole. § 3. After verdict, it is well if a thing be alleged by way of 1 Lev. 177. prescription where it ought to be by custom. And if a custom be only inducement to an action, it is sufficient to be alleged quod solet, without saying solet et debet &c. And a plea of 1 Lev. 12. 3 D. & E. 147, prescription for common in a que estate is good after verdict, Clark v. King. though it be not in express terms alleged that the owners of the estate have used it time immemorial. It states a right of common in all those who held the estate, and unless a prescriptive right had been proved, the plt. could not have obtained a verdict. Not stated in the plea they immemorially held the estate. 5. A custom that inhabitants or residents shall have profit 6 Co. 60, 61. in another's soil is merely void, unless as part of an easement, as gravel to repair a way, &c. case. Trespass in the plt's. close with cattle, horses, &c. with con- Gateward's tinuance; as to the hogs, deft. pleaded not guilty, and as to the residue, that the vill of Stixwold was an ancient vill and laying contiguous to said close, that within the said vill thère is, and time out of mind has been, a custom, viz: "that the inhabitants within the said vill of Stixwold within any ancient messuage there by reason of their commorancy and residence in the same, had and were used and accustomed to have common of pasture in the said place, in which &c. for all and all kind of oxen, horses, and other large beasts, &c. &c., and also pleaded, that at said time &c. he was and adhuc est commorans et inhabitans in said town of Stixwold, and in an ancient house in Stixwold aforesaid, and so justified. Plt. demurred: resolved first, only four kinds of common appendant, appurte CH. 26. Same case, 152. nant, in gross and by reason of vicinage, and that this common by reason of commorancy and residence is none of them. 6. Second. As he had no estate or interest in the house &c., but only "a mere habitation and dwelling," he could have no interest in the common in respect of the house. This is the only point stated by Croke to have been formally decided by the court, and certainly this point was clear and alone sufficient for the decision of the cause; and as to the other decisions stated by Lord Coke as having been made, they were his own, or if made by the judges, they were not necessary to the decision of the case. 7. Third. Such common will be transitory and uncertain, "for it will follow the person, and for no certain time and estate, but during his habitancy." This kind of interest the law does not allow; for a custom must be certain and have continuance &c. 8. Fourth. Against the nature of common," for every common may be suspended or extinguished, but such a common will be so incident to the person that no person certain can extinguish it, but as soon as he that releases &c. removes, the new inhabitant shall have it." § 9. Fifth." He who claims it as an inhabitant can have no action for it." Sixth. "In these words, inhabitants and residents, are included tenants in fee simple, tenants for life, for years, by elegit, &c. tenant at will &c., and he who hath no interest but only his habitation and dwelling." "And clearly, tenant in fee simple ought to prescribe in his own name; tenant for life, years, by elegit, &c., and at will &c. in the name of him who hath the fee, and by good pleading may enjoy &c. 10. Seventh. No improvement can be made &c. states the difference between a profit to be taken in alieno solo, and an easement in it. As to a way, As to a way, this every inhabitant may have, but not such profit. And a way or passage may well follow the person. Eighth. As to copy holds. And every prescription ought to have a lawful beginning; but a custom, a reasonable one only, as gavelkind. This may be reasonable but cannot be intended to have a lawful beginning, "by no grant or act, or agreement, but only by parliament." § 11. Ninth. Held also, if the custom had been alleged, that quilibet pater familias infra aliquod messuagium, it would also be bad for the above causes. There held," inhabitants, unless incorporated, cannot prescribe to have profit in another's soil, but only in matters of easement," as in way &c. to church, market, &c. So in matters of discharge, as to be discharged of toll, or of tithes &c.; "for that CH. 26. but to have an interest in another's soil cannot be ; Art. 6. -2 Jones 115.-Cro. 12. So it is not good for every freeman of a corporation 6 Com. D. 83. to prescribe for common, but he ought to prescribe in the corporation. Nor can one prescribe that A, tenant for life, and El. 154. B in remainder ought to have common. 84.-2 Lev. 13. To say that every burgess ought to have common, is 6 Com. D. as well as that the corporation shall have it for them and every 253. burgess. In either case the right is in the corporation. Skilton. $14. If the plt. alleges he was seized, and then prescribes, 2 Mod. 318, it is bad, if not stated seized in fee, for if not seized in fee he Scoble v. cannot prescribe, and seisin in fee will not be intended even after verdict. And a prescription cannot be annexed to any thing but an estate in fee, as prescription itself is in fee in all cases. § 15. In this case the court said, "the word solet implies 3 Mod. 48, antiquity, and will amount to a prescription, and solitus cursus thwait v. Pal52, Hebbleaquæ running to a mill makes the mill to be ancient; for if it mer. be newly erected, there cannot be solitus cursus aquæ towards the mill. 16. Special action on the case was brought against the 4 Mod. 241, Waples v. deft. for not keeping a bull and a boar; and on demurrer to the Basset. declaration, held it was bad; because, first, it did not state the deft. was obliged to keep them by custom, prescription, or otherwise. 2. Did not allege any particular loss or damage by the cattle not increasing. And third, the deft. being rector of the church ought to find a boar in consideration of paying 11 Mod. 160. of him tithes. 678. 17. It is a general rule, that customs are not to be enlarg- 1 Bac. Abr. ed beyond the usage; because it is the usage and practice that makes the law in such case, and not the reason of the thing. In an action brought on a custom it must shew what that custom is, otherwise it is not maintainable. 18. He who pleads a prescription must state the whole of it; see Lovelace v. Reynolds, Ch. 91, a. 7, and prove it as he lays it, 2 Esp. 27. But where any collateral matter is connected with the prescription, but makes no part of it, it need not be stated; as in Waring v. Griffith, stated Ch. 71, a. 2, where the payment VOL. I. 68 2 Ld. Raym. 1134, 1135. CH. 26. 2 Esp. 449, Margatroid v. Law. Cro. Car. 432, son. Comyns' R. 603, and 366. of the 2s. for every one buried in the church was merely collateral and no part of the prescription. And as to what evidence proves the prescription as laid, see Pring v. Henly, Ch. 91, a. 7, Evidence. He $19. If either party in an action prescribe for an easement, the other party cannot state a contrary prescription without a traverse of that set up by the other. As where an action was brought against the deft. for diverting a water course. pleaded he was seized of two closes, through which the water ran, and that he and all those whose estate he had, used to water their cattle there in said water; "but that for convenience of watering they had a right to dig a ditch near the said water course," and so concluded without a traverse, this being a prescription varying the first, was held to be bad without a traverse. 20. This was error brought in an action of the case. "Whereas Robert Fuller was seized in fee of the manor of Thompson, and he and his ancestors &c. time whereof &c. had a fold for his and their sheep, not exceeding 300, in seventy acres of land in Thompson every year from fourteen days after the corn was carried away, to continue until our Lady within the lands not sown again. The plt. then stated, that Robert Fuller let by deed to the plt. seventy-five acres, parcel of said manor, with the fold course for five years, and that the defts. enclosed, and thereby disturbed the plt. of his fold course. "And one of the defts. pleaded not guilty; the other in bar," that there is a custom within the said vill, that any one may inclose any part of his lands lying in common fields, and therefore he enclosed this land lying in the common field." Plt. demurred, and held this bar was bad, because it did not traverse the prescription in the declaration. And one "cannot plead a prescription against a prescription;" but the deft. ought to have answered that stated in the declaration. Customs or prescriptions are only triable at common law; held in prohibition. After verdict it is presumed a good prescription was proved, though not expressly alleged. This is not according to the best rules in pleading. 21. The matter of this chapter is also much considered in other chapters, as in regard to Disturbance, Ch. 64; Fences, Ch. 66; Ferries, Ch. 67; Fisheries, Flats, and Rivers, Ch. 68. As to Lands, Ancient Lights, &c. Ch. 69; Mills, Lands flowed, Mill Streams, Water Courses, and Watering Places, Ch. 71; Nusances, Ch. 74; some cases of Toll, Ch. 76; and in Trover, Ch. 77; Ways, Ch. 79; several cases in Replevin, Ch. 171; several cases in Trespass, Ch. 172, 173. So in chapters as to Pleadings &c. &c. |