How a Pre fcription may be loft, 1 Inft. 114 b. 4 Rep. 88. Cowper v. Andrews, Hob. 39. 4 Rep. 87 a. § 41. A prescription is loft, by unity of poffeffion of as high and perdurable an eftate, of the thing claimed, and of the land out of which it is claimed by prefcription; because it is an interruption in the right. § 42. Where the subject matter of a prescription is deftroyed, the prefcription is loft; as, if the repair of a castle be claimed by prefcription, and the castle be destroyed, the prescription is loft. § 43. But an alteration in the quality of the thing, to which a prefcription is annexed, will not deftroy the prescription; as, if a perfon prefcribes in a modus decimandi for tithes of a park, and the park is dif parked, yet the prefcription continues: for it is annexed to the land. $ 44. So, if a man has eftovers by prescription to his houfe, although he alters the rooms and chambers of it; as, to make a parlour where there was a hall, or a hall where the parlour was, and the like alteration of the qualities, and not of the house itself, and without making new chimnies, by which no prejudice accrues to the owner of the wood, it is not any destruction of the prescription. And, although he builds new chimnies, or makes an addition to his old houfe; by that he shall not lose his prescription: but he cannot employ any of his eftovers in the new chimnies, or in the part newly added. § 45. A perfon Cafe, 4 Rep. 86 4. S45. A perfon having two old fulling mills, to Luttrell's which was annexed by prefcription a right to a watercourse, pulled them down, and erected two mills to grind corn. It was refolved, that, as the mill was the substance, and the addition demonstrated only the quality; and the alteration was not of the substance, but only of the quality, or the name of the mill, and that without any prejudice in the water-course to the owner, the prescription remained. $ 46. Sir William Blackstone obferves, that "eftates, "gained by prescription, are not of course descendible "to the heirs generally, like other purchased estates, "but are an exception to the rule. For, properly fpeaking, the prescription is rather to be confidered "as an evidence of a former acquifition, than as an "acquifition de novo: and, therefore, if a man pre"scribes for a right of way, in himself and his " ancestors, it will defcend only to the blood of that "line of ancestors, in whom he fo prefcribes; the "prescription in this cafe being, indeed, a fpecies of "descent. But, if he prefcribes for it in a que eftate, "it will follow the nature of that estate, in which "the prescription is laid, and be inheritable in the "fame manner; whether that were acquired by de"scent or purchase: for every acceffory followeth the nature of its principal," Defcent of quired by Prescription, Eftates ac 2 Comm. 266. Negative Fo. 52 a. THE Section 1. HE fecond fort of prefcription is that which arifes from the several statutes of limitation; in confequence of which, no action can be brought for the recovery of lands or tenements after an uninterrupted poffeffion of a certain number of years. This kind of prescription is as antient as that which arifes from immemorial ufage: for Bracton says, "Longa enim poffeffio (ficut jus) parit jus poffidendi, "et tollit actionem vero domino, quandoque unam, quan 66 doque aliam, quandoque omnem ; quia omnes actiones "in mundo, infra certa tempora, habent limitationem.” It It is different from the former; for, by that, a right is acquired to an încorporeal hereditament; but, by this last kind, the remedy for the recovery, either of à corporeal or incoporeal hereditament, is taken away; from whence, it is called a Negative Prefeription. § 2. By the old law, no feifin could be alleged by 1 Inft. 114 b. the demandant in a real action, but from the time of Henry 1. By the ftatute of Merton, 20 Hen. 3. the 2 Inft. 94. feifin must have been alleged from the time of Hen. 2. ; and by the ftatute of Westminster the first, 3 Edw. 1. Id. 238. c. 39., the feifin muft have been alleged from the time of Richard 1. § 3. The period, established by the laft of thefe ftatutes, encreased every day, till at last it was no limitation at all; fo that it became neceffary to fix a certain time, within which a claim to lands and tenements must be made; and beyond which, an undisturbed poffeffion became a good title, by operating as a bar to every kind of action. Limitation. § 4. This was effected by the ftatutes 32 Hen. 8. Statutes of c. 32. and 21 Jac. 1. c. 16., which were made for quieting men's eftates, and avoiding fuits; and which have, therefore, been called Statutes of Repofe. § 5. The first fection of the ftatute 32 Hen. 8. enacts, that no person shall have any writ of right of any manors, lands, tenements, or hereditaments, of the poffeffion of their ancestor or predeceffor, but only of As to Writs of Right. As to prefcriptive Rights. of the feifin of fuch ancestor or predeceffor, withia fixty years next before the tefte of the fame writ. § 6. In confequence of this statute, a writ of right cannot be now maintained by any person, without shewing an actual seifin by taking the efplées or profits, either in the demandant himself, or the ancestor under whom he claims, within fixty years. § 7. As to rights acquired by immemorial usage, it S has already been stated, that they might formerly have been claimed, though the actual enjoyment of them had been fufpended for any number of years: but, in confequence of the first section of this statute, no perfon can now prefcribe for any hereditaments of the poffeffion of his ancestors or predeceffors, but only of the feifin or poffeffion of fuch ancestors or predeceffors, who shall be seised of fuch hereditaments within fixty Brook. Read. years before the faid prescription, made or had. But a prescription in a que estate is not within this statute. 2. As to Avowries. 4 Rep. 10 a. § 8. By the fourth fection of this statute, it is enacted, that no perfon or perfons fhall make any avowry or cognizance for any rent, fuit, or fervice, and allege any feifin thereof in the poffeffion of his or their ancestors or predeceffors, or in his own poffeflion, or in that of any others, above fifty years next before the making of the faid avowry or cognizance. § 9. In all thefe fections of the ftatute 32 Hen. 8. the word feifin is ufed indefinitely; and, therefore, if the act had gone no farther, this word fhould be conftrued 3 |