in the Person and in the Eftate. § 8. This kind of prescription is of two forts: either it is a personal right, which has been exercised 1 Inft. 1136. by a man and his ancestors, or by a body politic and their predeceffors: or else it is a right, attached to the ownership of a particular eftate, and only exercifable by those who are feifed of that eftate. In the first case, it is termed a prescription in the person; and, in the fecond cafe it is called a prescription in a que eftate. 6 Rep. 60 a. What may be claimed by Prescription. f. 310. § 9. A prescription in a que eftate muft always be laid in the perfon, who is seised of the fee fimple. A tenant for life, for years, or at will, or a copyholder, cannot prescribe in this manner, by reafon of the imbecillity of their eftates: for, as prescription is always beyond time of memory, it would be abfurd that thofe, whofe eftates commenced within the memory of man, fhould pretend to prescribe for any thing; and, therefore, a tenant for life must prescribe under cover of the tenant in fee fimple; and a copyholder, under cover of his lord. § 10. Prescription by immemorial ufage only extends to incorporeal hereditaments; fuch as commons, ways, waifs, eftrays, wreck, court leet, park, warren, fishery, &c. but it cannot give a direct title to lands, or other corporeal inheritances; of which more certain evidence may be had. § 11. It is, however, faid by Littleton, that tenants in common may be by title of prescription; as if the one and his ancestors, or they whofe eftate he hath in one 2 one moiety have holden in common the fame moiety with the other tenant, who hath the other moiety, and with his ancestors; or with thofe, whose estate he hath, undivided, time out of mind of man. Lord Coke obferves upon this paffage, that it is founded on good authority; but that joint tenants cannot be by prescription, because there is a furvivorship between them, but not between tenants in common. § 12. A perfon may have frank foldage by pre- 1 Inft. 1146. scription, but it must be appendant to land: and a man may prescribe, that he and his ancestors, time out of mind, have had frank foldage of the beafts of his tenants in a particular place. Jeffry at Rep. 125 a. Hay's Cafe, 8 § 13. In trefpafs, the defendant justified under a prescription, that the lords of the manor of H. had and always used to have free foldage throughout the vill of H., and to have the penning of the sheep; fo that the vill of H. ought not to have free foldage, without the confent of the lord: and that, if any levied a fold without fuch confent, the lord had used to abate it. It was urged that this prefcription was void, being against common right; which gave every one foldage in his own land. Sed non allocatur, for every prescription is againft common right; and it did Punfany v. not extend to deprive the owner of the whole intereft and profit of his land, which would not have been good, but only precluded him from fetting up hurdles, which was a reasonable prescription, and restrained a particular profit only. § 14. A prefcription Leader. 1 Leon. 11. 1 Vent. 387. Tit. 27. 5. 72. 1 Inft. 114 a. 5 Rep. 109 b. Goodfon v. Cro. Jac. 313. § 14. A prescription by immemorial usage can, in general, only be for things, which may be created by grant for the law allows prescriptions, only in supply of the loss of a grant. Ancient grants must often be loft; and it would be hard, that no title could be made to things lying in grant, but by fhewing the grant. Upon immemorial ufage, therefore, the law will prefume a grant, and a lawful beginning; and allows fuch ufage for a good title, but ftill it is only to fupply the lofs of a grant. And therefore for fuch things, as can have no lawful beginning, nor be created at this day, by any manner of grant or refervation, or deed, that can be supposed, a prescription is not good. § 15. It has been stated in a former title, that as to such franchises, as cannot be seised as forfeited, before the cause of forfeiture appears upon record, no title can be made by prescription: because, prescription being but an ufage in pais, it cannot extend to those things, which can only be seised or had by matter of record; fuch as the goods and chattels of traitors, felons, fugitives, deodands, &c. But to treafuretrove, waifs, eftrays, wreck, court-leet, park, warren, c. a perfon may make a title by ufage and prescription. § 16. It was refolved in 9 Jac., that a court of piepowder may be pleaded to be held by prescription, and by charters of the king and his progenitors, conceffa et confirmata. For a court of this kind, being by prescription, is not taken away by the grants and confirmations confirmations of kings. But they may use their charters as confirmations, or as grants, or may claim thofe liberties by prescription, notwithstanding fuch charters and, if the charter be not contrary to the prescription, it will be good by way of confirmation. § 17. It was held in a modern cafe, that an ancient grant without date does not neceffarily destroy a prefcriptive right for fuch grant may either be prior to the time of memory, or in confirmation of fuch prefcriptive right. 3 Bulft. R.21. Addington v. 2 Black. Rep. S 18. In trefpafs, the defendants plead that Clode was feifed of a meffuage, &c. and that "he and all "thofe, whofe eftate he hath, &c. for the time being 989. "had and ufed, and had been accustomed to have "and ufe, and fo ftill of right ought to have and "ufe," common of pafture in the place, where, for all commonable cattle levant and couchant, and thereupon juftifies, &c. The plaintiff traverfed the right of common, and produced two ancient charters without date, containing a grant of common. The Judge being of opinion, that thofe grants were inconfiftent with the plea of prescription, a verdict was given for the plaintiff. Upon a motion for a new trial, it was urged for the defendant, that thofe grants might only be in confirmation of an antecedent prefcriptive right, and then were not inconfiftent with it. VOL. III. M m The 1 Inft. 114 a. & b. The court was of opinion that thofe grants might either be before time of memory; or else they might have been only in confirmation of a prior right, in neither of which cafes would they have been inconfiftent with a plea of prefcription. It ought to have been left to the jury to decide, whether either of these was the cafe. A new trial was granted. S 19. Nothing can be claimed by prescription, 5 Rep. 109 b. which owes its origin to matter of record: for prefcription, being only an ufage in pais, does not extend to those things, which can only be feised or had by matter of record; as the goods and chattels of traitors and felons, felons of themselves, fugitives, perfons put in exigent, deodands, &c. And Lord Coke fays, that things of this kind cannot be feifed or forfeited; unless the cause of forfeiture appear upon record. Tit. 2% Pill v. § 20. There can be no prescription for what the law gives of common right: and therefore a lord of a Cro. Eliz.791. manor cannot prescribe to have a court baron within his manor, because it is of common right, and incident to a manor; but a lord of a manor may prescribe to enlarge the jurifdiction of his court. Kitch. Courts 105 b. § 21. An easement, which is a fervice or convenience, that one neighbour hath of another, without profit, as a way through his land, a fink, or fuch like, may be claimed by prescription; but a multitude of perfons cannot prefcribe for an eafement, though they may plead a custom. § 2. Where |