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 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 and his anceſtors, or in a man and thoſe whoſe eſtate he hath[1]; which laſt is called preſcribing in a que eſtate. And 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[2] for an indefinite ſeries of years. But by the ſtatute of limitations, 32 Hen. VIII. c. 2. it is enacted, that no perſon ſhall make any preſcription by the ſeiſin or poſſeſſion of his anceſtor or predeceſſor, unleſs ſuch ſeiſin or poſſeſſion hath been within threeſcore years next before ſuch preſcription made[3].
Secondly, as to the ſeveral ſpecies of things which may, or may not, be preſcribed for: we may in the firſt place, obſerve, that nothing but incorporeal hereditaments can be claimed by preſcription; as a right of way, a common, &c; but that no preſcription can give a title to lands, and other corporeal ſubſtances, of which more certain evidence may be had[4]. For no man can 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 corporal ſeiſin and inheritance, which is more permanent, and therefore more capable of proof, than that of preſcription. But, as to a right of way, a common, or the like, a man may be allowed to preſcribe; for of theſe there is no corporal ſeiſin, 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 muſt
