prescribe

To allege a title to a memorial usaga

To claim title to incorporeal hereditaments, on grounds of long usage, in one's self, one's ancestors, or grantors, by prescription [which differs from custom, a local usage not annexed to any particular person]. Tliis prescription is acquisitive or positive prescription, as distinct from restrictive or negative prescription, which is the loss of a remedy by lapse of time; outlawry of actions.

To assert a right or title to the enjoyment of a thing, on the ground of having hitherto had the uninterrupted and immemorial enjoyment of it. Prescription: a title which a person acquires to incorporeal hereditaments by long and continued possession. This species of title is founded on the presumption — allowed, from reasons of public policy, to prevail somewhat beyond actual probabilities — that he ■who has had a quiet and uninterrupted possession of any.thing for a long period of years had originally a just right, without which he could not have been suffered to continue in the enjoyment of it. The terms prescribe and prescription doctrine or acquisition is more often called title by adverse possession, or by the statute of limitations. The former corresponds to the acquisitive or positive prescription of the books; the latter, to what is called negative prescription. Prescription is a title acquired by use and time, and allowed by law; as when a man claims any thing because he, his ancestors, or they whose estate he hath, have had or used it all the time, whereof no memory is to the contrary; or it is where, for continuance of time, vltra memoriam hominis, a particular person hath a particular right against another. C ustom is properly a local usage, and not annexed to any person, while prescription is merely a personal usage; as that such an one and his ancestors, or those whose estate he hath, have used time out of mind to have such an advantage or privilege. For example, if there is 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, 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 seised 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 tb have common of pasture in a particular close, this is properly called a prescription; for this is an usage annexed to the person of the owner of the estate. (2 Bl. Com. ch. 17.) The difference between prescription, custom, and usage is also thus stated; Prescription hath respect to a certain person who, by intendment, may have continuance for ever; as, for instance, he and all they whose estate he hath in such a thing, — this is a prescription; while custom is local, and always applied to a certain place, and is common to all; while usage differs from both, for it may be either to persons or places. Jacob. Prescription and custom are frequently confounded, in common parlance, arising perhaps from the fact that immemorial usage was essential to both of them; but, strictly, they materially differ from one another, in that custom is properly a local, impersonal usage, such as borough-English or postreraogeniture, which is annexed to a given estate; while prescription is simply personal, as that a certain man and his ancestors, or those whose estate he enjoys, have immemorially exercised a right of pasture-common in a certain parish. Again, prescription has its origin in a grant, evidenced by usage, and is allowed on account of its loss, either actual or supposed, and therefore only those things can be prescribed for which could be raised by a grant previously to Stat. 8 & 9 Vict. ch. 106, § 2; but this principle does not necessarily hold in the case of a custom. exception written in front of the plaintiff's pleading. Afterwards, the word became applied exclusively to the proescriptio longi temporis, &e., or the prescription founded on length of possession. {Sand. Just. 47, 126.) Hence its modern meaning. It was allowed by way of equitable plea where a defendant, sued in reference to the possession of property, had complied with the main conditions of usueaption, without having acquired ownership by usueaption. Prescription at common law, as defined by Blackstone, is where a man can show no other title to what he claims than that he, and those under whom he claims, have immemorially used and enjoyed it. The difference between prescription and custom is, that custom is a local usage, and not annexed to any person; whereas prescription is a personal usage. Prescription may, perhaps, in this sense, be called positive or acquisitive, and defined as the presumption of a grant arising from long usage. (2 Bl. Com. 263-266; 1 Sieph. Com. 685-689.) But, in England, the subject of prescription is now regulated by the prescription act, 1832 (2 & 3 Wm. IV. eh. 71), which provides that a thirty years' enjoyment of rights of common, and other profits or benefits, to be taken or enjoyed upon any land, shall no longer be defeated by proof that the enjoyment commenced at a period subsequent to legal memory, and that a prescriptive claim of sixty years' enjoyment shall be absolute and indefeasible, except by proof that such enjoyment took place under some deed, or written consent or agreement. In the case of ways, easements, and watercourses, the periods are twenty and forty years respectively; in the case of lights, the period is twenty years. Thus it properly applies to incorporeal hereditaments only. (2ffi.Com.264. See 4us(m /Mr.lect. 26.) For a prescription is the presumption of a grant; and, until recently, none but incorporeal hereditaments could pass by grant, though by some writers, and especially by Cowel, It is extended to any right, privilege, exemption, or immunity arising from lapse of time. Mozley Sf W. There are two kinds of prescription, — negative, which relates to realty or corporeal hereditaments, whereby an uninterrupted possession for 'a given time gives the occupier a valid and unassailable title, by depriving all claimants of every stale right and deferred litigation, now mainly governed by 3 & 4 Wm. IV. ch. 27; and positive, which relates to incorporeal hereditaments, and originated at the common law from immemorial or long usage only. Positive prescription is subdivided into that which has been exercised by a person and his ancestors, or by a body corporate and their predecessors, and is a personal right; and that which has been atr tached to the ownership of a certain estate, and is only exercisable by those seised of Positive prescription has been greatly modified by the statutes 2 & 3 Wm. IV. ch. 71; 2 & 3 Wm. IV. ch. 100; and 4 & 5 Wm. IV. ch. 88. Wlmrton.