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2 Bl. Com. 128.
Such issue must also be capable of inheriting the mother's estate. Therefore, if a woman be tenant in tail male, and hath only a daughter born, the husband is not thereby entitled to be tenant by the curtesy ; because such issue female can never inherit the estate in tail male. And this seems to be the principal reason why the husband cannot be tenant by the curtesy of any lands of which the wife was not actually seized : Because, in order to entitle himself to such estate, he must have begotten issue that may be heir to the wife ; but no one, by the standing rule of law, can be heir to the ancestor of any land, whereof the ancestor was not actually seized ; and therefore, as the husband hath never begotten any issue that can be heir to those lands, he shall not be tenant of them by the curtesy.
The time when the issue was born is immaterial, provided it were during the coverture : For, whether it were born before or after the wife's seizin of the lands, whether it be living or dead at the time of the seizin, or at the time of the wife's decease, the husband shall be tenant by the curtesy.
4. The husband by the birth of the child becomes tenant by the curtesy initiate, and may do many acts to charge the lands : But his estate is not consummate till the death of his wife ; which is the fourth and last requisite ta make a complete tenant by the curtesy,
CUSTOMS AND PRESCRIPTIONS.
1. DISTINCTION between custom and prescription.
2. The legal requisites of a custom.
3. The several species of things which may, or may not be prescribed for.
4. Of the manner of prescribing. 5. The limitation of prescription.
I. Distinction between custom and prescription.
The distinction between custom and prescription is
2 B1, Com. 263. this ; that custom is properly a local usage, and not annexed to any person : Such as a custom in the manor of Dale that lands shall descend to the youngest son : Prescription is merely a personal usage ; as, that Sempronius, and his ancestors, or those whose estate he hath, have used time out of mind to have such an advantage or privilege. As for example : If there be a usage in the parish of Dale, that all the inhabitants of that parish may dance on a certain close, at all times, for their recreation; (which is held to be a lawful usage) this is strictly a custom, for it is applied to the place in general, and not to any particular persons : But if the tenant, who is seized of the manor of Dale in fee, alleges that he and his ancestors, or all those whose estate he hath in the said manor, have used time out of mind to have common of pasture in such a close, this is properly called a prescription ; for this is a usage annexed to the person of the owner of this estate. All prescription must be either in a man or his ances
Ibid. 264. tors, or in a man and those whose estate he hath : Which last is called prescribing in a que estate.
II. The legal requisites of a custom.
To make a particular custom good, the following are necessary requisites.
1. That it have been used so long, that the memory of man runneth not to the contrary. So that, if any one can shew the beginning of it, it is no good custom. For which reason no custom can prevail against an express act of parliament; since the statute itself is a proof of a time when such a custom did not exist.
2. It must have been continued. Any interruption would cause a temporary ceasing: The revival gives it a new beginning, which will be within time of memory, and thereupon the custom will be void. But this must be understood with regard to an interruption of the right ; for an interruption of the possession only, for ten or twenty years, will not destroy the custom. As if the inhabitants of a parish have a customary right of watering their cattle at a certain pool, the custom is not destroyed, though they do not use it for ten years ; it only becomes more difficult to prove : But if the right be any how discontinued for a day, the custom is quite at an end.
3. It must have been peaceable, and acquiesced in; not subject to contention and dispute. For, as customs owe their original to common consent, their being immemorially disputed, either at law or otherwise, is a proof that such consent was wanting.
4. Customs must be reasonable ; or rather taken nega. tively, must not be unreasonable. Which is not always, as Sir Edward Coke says, to be understood of every unlearned man's reason, but of artificial and legal reason, warranted by authority of law. Upon which account a custom may be good, though the particular reason of it cannot be assigned; for it sufficeth, if no good legal reason can be assigned against it. Thus, a custom in a parish, that no man shall put his beasts into the common till the third of October, would be good ; and yet it would be hard to shew the reason why that day in particular is fixed upon, rather than the day before or after.
III. The several species of things which may, or may not be prescribed for.
1. Nothing but incorporeal hereditaments can be , Bl. Com. 264. claimed by prescription; as a right of way, a common, &c. but no prescription can give a title to lands, and other corporeal substances, of which more certain evidence may be had. For a man shall not be said to prescribe, that he and his ancestors have immemorially used to hold the castle of Arundel : For this is clearly another sort of title ; a title by corporeal seizin and inheritance, which is more permanent, and therefore more capable of proof, than that of prescription. But, as to the right of way, a common, or the like, a man may be allowed to prescribe ; for of these there is no corporeal seizin, the enjoyment will be frequently by intervals, and therefore the right to enjoy them can depend on nothing else but immemorial usage.'
2. A prescription cannot be for a thing which cannot bid. 2 be raised by grant. For the law allows prescription only in supply of the loss of a grant, and therefore every prescription presupposes a grant to have existed.
3. Another rule is, that what is to arise by matter of record cannot be prescribed for, but must be claimed by grant, entered on record.
IV. Of the manner of prescribing.'
1. A prescription must always be laid in him that is 1.14 tenant of the fee. A tenant for life, or for years at will, cannot prescribe, by reason of the imbecility of their estates. For, as prescription is usage beyond time of memory, it is absurd that they should pretend to prescribe for any thing whose estates commenced within the remembrance of man: And therefore the tenant for life must prescribe under cover of the tenant in fee simple.
2 BL Com, 265, 266.
As, if tenant for life would prescribe for a right of common as appurtenant to the estate, he must prescribe under cover of the tenant in fee simple ; and must plead that John Suiles and his ancestors had immemorially used to have this right of common, appurtenant to the said estate; and that John Stiles demised the said estate, with its appurtenances, to him the said tenant for life.
2. Among things incorporeal, which may be claimed by prescription, a distinction must be made with regard to the manner of prescribing ; that is, whether a man shall prescribe in a que estate, or in himself and his ancestors. For, if a man prescribes in a que estate, (that is, in himself, and those whose estate he holds) nothing is claimable by this prescription, but such things as are incident, appendant, or appurtenant to lands; for it would be absurd to claim any thing as the consequence, or appendix, of an estate, with which the thing claimed has no connexion : But if he prescribes in himself and his ancestors, he may prescribe for any thing whatsoever that lies in grant; not only things that are appurtenant, but also such as may be in gross.
V. The limitation of prescription.
Formerly a man might, by the common law, have prescribed for a right which had been enjoyed by his ancestors or predecessors at any distance of time, though his or their enjoyment of it had been suspended for an indefinite series of years. But by the statute of limitations, 32 Hen. 8. c. 2. it is enacted, that no person shall make any prescription by the seizin or possession of his ancestor or predecessor, unless such seizin or possession hath been within three score years next before such prescription made.
And now by a statute of this commonwealth it is enacted, that'no person shall make any prescription upon the possession or seizin of his ancestor or predecessor, beyond the term of three score years next before the test of the writ.
Stat, 1786, c. 13, s. 1.