T. R. 271; 11 East. 495), unless the custom or prescription be saved or preserved by another Act. Co. Litt. 115. And Lord Coke makes a difference between Acts in the negative and in the affirmative; for a Statute in the affirmative, without any negative express or implied, does not take away the common law; and likewise between Statutes that are in the negative, for if a Statute in the negative be declarative of the ancient law, a man may prescribe or allege a custom against it, as well as he may against a common law. Hargrave's Co. Litt. 115 a, n. (15).

"An ancient custom may be destroyed by the express provisions of a Statute or by positive language inconsistent with the existence of the custom. Merchant Taylors Company v. Truscott, 11 Ex. 855; Salter's Company v Jay, 3 Q. B. 109.

"By the common law a man might 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. VIII. cap. 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 had been within threescore years next before such prescription made. 2 Bl. Com. 263, 264. And the remedy for such rights, so far as it depended upon real actions, was further abridged by the abolition of real actions after 31st December, 1834, by the Statute 3 & 4 Will. IV. cap. 26, s. 36. Where a profit of any kind to be taken out of lands has not been taken for a vast number of years, and the lands have been enjoyed without yielding such profit to a third person, the consequence is, that the title to it, whatever its nature, shall be presumed to be discharged. 3 Bligh, 245. But a title gained by prescription or custom is not lost by mere interruption of possession for ten or twenty years, unless there be an interruption of the right, as by unity of possession of right of

common, and the land charged therewith of an estate equally high and perdurable in both. Co. Litt. 114 b. A unity of possession merely suspends; there must be a unity of ownership to destroy a prescriptive right. Canham v. Fisk, 2 Cr. & Jerv. 126. Thus, if a person having a right of common by prescription takes a lease of the land for twenty years, whereby the common is suspended, he may, after the determination of the lease, claim the common again by prescription; for the suspension was only of the enjoyment, not of the right. Co. Litt. 113 b.

"Easements are extinguished by the union of seisin of the dominant and servient tenements in the same person. James v. Plant, 4 Ad. & Ell. 749. Easements are sometimes extinguished by statute, e. g., the General Inclosure Act, 41 Geo. III. cap. 109, s. 8. They are extinguished when the purpose for which they were created no longer exists. National Guaranteed Manure Company v. Donald, 4 H. & N. 8. A prescriptive right may be lost by the destruction of the subject-matter (4 Rep. 88); but not by an alteration of the quality of the thing to which a prescription is annexed. Hob. 39; 4 Rep. 86 a, 87 a. Alterations in the dominant tenement will sometimes extinguish an easement. Allan v. Gomme, 11 Ad. & Ell. 772. The release of an easement may be implied from abandonment or non-user. Cook v. Mayor of Bath, L. R., 6 Eq. 177. It was said that a release of a right of way, or of a right of common, will not be presumed by mere non-user for a less period than twenty years, although it is otherwise as to lights. Moore v. Rawson, 3 B. & Cr. 339. But 'it is not so much the duration of the cesser as the nature of the act done by the grantee of the easement or of the adverse act acquiesced in by him, and the intention in him which either the one or the other indicates, which are material.' Per Lord Denman, Reg. v. Chorley, 12 Q. B. 519. See Crossley v. Lightowler, L. R., 2 Chy. 482. The right to hold courts for the determination of civil suits, granted by the king's charter to the steward

and suitors of a court of ancient demesne, was held not to be lost by a non-user of fifty years. Rex v. The Steward, &c. of Havering, 5 B. & Ald. 691; Rex v. The Mayor, &c. of Hastings, Id. 692, n.

"An ancient grant without date did not necessarily destroy a prescriptive right; for it might be either before time of memory, or in confirmation of such prescriptive right, which is matter to be left to a jury. Addington v. Clode, 2 Bl. Rep. 989. A plea, that before and at, &c., the defendant, and all his ancestors, whose heir he is, from time whereof the memory of man is not to the contrary, have had, and been used and accustomed to have, and of right ought to have had, and the defendant still of right ought to have for himself and themselves, the sole and several herbage and pasturage of and in divers, to wit, 217 acres, &c., of a certain open field, called, &c., was held to be disproved by shewing a grant to the defendant's ancestor eighty-one years before for a valuable consideration; and such plea is not aided by the Stat. 2 & 3 Will. IV. cap. 71, s. 1, which, if relied on, ought to be pleaded. Welcome v. Upton, 5 Mees. & W. 398. See Reg. v. Westmark, 2 M. &

Rob. 305.

"The doctrine as to the grant of a franchise by the Crown within time of memory being a determination of a prescriptive claim to the same franchise does not appear to be settled. Where a bishop, having free warren by prescription over the demesne and tenemental lands of a manor whereof he was seised jure ecclesiæ, accepted a grant from the Crown to himself and his successors of free warren over the demesne lands of all his manors in England: it was held that, even admitting the grant to have the effect of extinguishing the prescription as to the demesne lands (which the Court considered to be at least doubtful), it could not affect it over the other lands of the manor. Earl of Carnarvon v. Villebois, 13 Mees. & W. 313.

66

Formerly a prescription could not run against the king, as no delay in resorting to his remedy would bar his right. The maxim was nullum tempus occurrit regi. 2 Inst. 273; 2 Roll. 264, 1. 40. Com. Dig. Prescription (F. 1); Broom's Maxims, pp. 65-68, 5th Edit. Liberties and franchises were excepted in the Statute 9 Geo. III. cap. 16, limiting the claims of the Crown to sixty years. By 32 Geo. III. cap. 58, the Crown is barred in informations for usurping corporate offices or franchises by the lapse of six years. See Bae. Abr., 7th Edit., Prerogative (E. 6), 467, and Stat. 7 Will. IV. & 1 Vic. cap. 78, s. 23; Reg. v. Harris, 11 Ad. & Ell. 518. It will be observed that by the Stat. 2 & 3 Will. IV. cap. 71, ss. 1, 2, the Crown is placed upon the same footing with the subjects as to the rights affected by that Act."

34. No claim which may be lawfully made at the common law by custom, prescription or grant, to any profit or benefit to be taken or enjoyed from or upon any land of our Sovereign Lady the Queen, her heirs or successors, or of any ecclesiastical or lay person or body corporate, except such matters or things as are hereinafter specially provided for, and except rent and services, shall, where such profit or benefit has been actually taken and enjoyed by any person claiming right thereto, without interruption for the full period of thirty years, be defeated or destroyed by shewing only that such profit or benefit was first taken or enjoyed at any time prior to such period of thirty years; but, nevertheless, such claim may be defeated in any other way by which the same is now liable to be defeated; and when such profit or benefit has been so taken and enjoyed as aforesaid for the full period of sixty years, the right thereto shall be deemed absolute and indefeasible, unless it appear that the same was taken and enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing. C. S. U. C. cap. 88, s. 36.

This section is taken from 10 & 11 Vic. cap. 5. This Statute has the following preamble: "Whereas, by the law of Upper Canada the title to matters that have been long enjoyed, is subject in some cases to be defeated by shewing the commencement of such enjoyment, to the great inconvenience of and injury to parties having had such long enjoyment."

This Act was copied almost verbatim from the Imperial Statute 2 & 3 Will. IV. cap. 71.

That latter Statute has the following preamble: "Whereas the expression time immemorial,' or 'time whereof the memory of man runneth not to the contrary,' is now by the law of England in many cases considered to include and denote the whole period of time from the reign of King Richard the First; whereby the title to matters that have been long enjoyed is sometimes defeated by shewing the commencement of such enjoyment, which is in many cases productive of inconvenience and injustice."

This section is the same with regard to the space of time as the old Statute of 2 & 3 Will. IV. cap. 71, the commissioners probably considering that, with regard to easements, the time of prescriptions should not be shortened.

In Lower Canada (Civil Code, art. 2211), "The Crown may avail itself of prescription. The subject may interrupt such prescription by means of a petition of right, apart from the cases in which the law gives another remedy. Among privileged persons the privilege takes effect in the matter of prescription." Vide also, arts. 2212-2214, and 2215, which last is similar to this section, and is as follows: "All arrears of rent, dues, interest and revenues, and all debts and rights belonging to the Crown and declared to be imprescriptible by the preceding articles, are prescribed by thirty years. Subsequent purchasers of immovable property charged therewith cannot be liberated by any shorter period." (a)

The Act of 2 & 3 Will. IV. cap. 71, is generally called the Prescription Act, and the origin of this Act arose in a curious way. I cannot do better than quote the words of Martin, B., in the case of Mounsey v. Ismay, 3 H. & C. 486; 34 L. J. Ex. 52: “The occasion of the enactment of the Prescription Act is well known. It had been long established that the enjoyment of an easement as of right for

(a) McCord, Civil Code. 1 Fer. C. P. 312; Polk, C. O. t. 14 n. 36.