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creditor was held at liberty to ascribe a general payment to the prior debt, though the surety was not informed of its existence when he became bound; for he should have inquired for himself.1 But where a guaranty was expressed to be for goods to be thereafter delivered, and not for a debt which then existed, and goods were accordingly supplied from time to time, and payments made, for some of which a discount was allowed for payments in anticipation of the usual term of credit upon such sales, it was held, in favor of the surety, that the payments ought to be applied to the latter account.?

§ 535. When debt is barred by Statute of Limitations. And if one of two demands is within the operation of the Statute of Limitations, and the other is not, this circumstance does not prevent the ascription of a general payment to the former demand, where the debtor himself has not appropriated it at the time. So, if one of two bills is void for want of a stamp, a general payment may still be applied to it by the creditor.4

§ 536. Apportionment. In some cases, the court, in the exercise of its discretion, and for the sake of equal justice, will apply general payments, in a ratable proportion to all the existing debts. Thus, if a broker, having sold goods of several principals to one purchaser, receives from him a general payment in part, after which the purchaser becomes insolvent, the payment shall be applied in proportion to each debt. So, if the agent blends a demand due to his principal with one due from the same debtor to himself, and receives a general payment thereon ; 6 or if an insolvent assigns all his property for the benefit of his creditors, and a dividend is paid to one of them, who holds divers demands against the insolvent;? or if several demands, some of which are collaterally secured, are included in one judgment, and the execution is satisfied in part,8 — in these and the like cases the payment will be ascribed in a ratable proportion to each debt.

1 Kirby v. D. of Marlborough, 2 M. & S. 18. And see Brewer v. Knapp, 1 Pick. 337 ; Mitchell v. Dall, 4 G. & J. 361 ; Plomer v. Long, 1 Stark. 153 ; Clark v. Bur. dett, 2 Hall (N. Y.), 185.

2 Marryatts v. White, 2 Stark. 101.

8 Mills v. Fowkes, 5 Bing. N. C. 455 ; 3 Jur. 406 ; Williams v. Griffith, 5 M. & W. 300. See ante, S$ 529, 531.

* Biggs v. Dwight, 1 M. & Rob. 308. 6 Favenc v. Bennett, 11 East, 36. 6 Barrett v. Lewis, 2 Pick. 123 ; Cole v. Trull, 9 Pick. 325. 7 Scott v. Ray, 18 Pick. 360 ; Commercial Bank v. Cunningham, 24 Pick. 270. 8 Blackstone Bank v. Hill, 10 Pick. 129. And see Perris v. Roberts, 1 Vern. 34; 1 Poth. Obl. by Evans, Part 3, c. 1, art. 7, 88 528–535; Shaw v. Picton, 4 B. & C. 715.

PRESCRIPTION.

§ 537. Prescription. Prescription, in its more general acceptation, is defined to be “a title, acquired by possession, had during the time and in the manner fixed by law.” After the lapse of the requisite period, the law adds the right of property to that which before was only possession. The subject of prescription is real property ; but the title to corporeal hereditaments, derived from exclusive adverse possession, being regulated by the statutes of limitation, of which we have already treated under that head, the title by prescription, in its strictest sense, is applied only to things incorporeal, such as rents, commons, ways, franchises, and all species of easements or liberties without profit, which one man may be entitled to enjoy in the soil of another, without obtaining any interest in the land itself.? (a)

$ 538. Foundation of title by prescription. This prescriptive title to things incorporeal was originally founded on uninterrupted enjoyment for a period of indefinite antiquity, or beyond the memory of man, and is termed a positive prescription. When writs of right were limited to a fixed period, it was thought unreasonable to allow a longer time to claims by prescription; and accordingly prescriptive rights were held indefeasible, if proved to have existed previous to the first day of the reign of King Richard I., that being the earliest limitation of writs of right, and were invalidated if shown to have had a subsequent origin. When later statutes reduced the period of limitation of real actions to a certain number of years, computed back from the commencement of each action, it was to have been expected, that the period of legal memory in regard to prescriptions would have been shortened by the courts of law in like manner, upon the same reason ; but it was not

1 Gale & Whateley on Easements, p. 86 ; Co. Lit. 113 b.

2 See 3 Cruise's Digest, tit. xxxi. c. 1 (Greenleaf's ed. 1856). The law of Prescriptions is stated with great clearness by Mr. Best, in his Treatise on Presumptions, c. iii. pp. 87–110. See also Mr. Angell's Treatise on Adverse Enjoyment.

(a) On this general subject see Sedgwick and Wait on Real Actions; Washburn on Real Property.

done, and the time of prescription for incorporeal rights remained as before. This unaccountable omission has occasioned some inconvenience in the administration of justice, and some conflict of opinion on the bench, and in the profession at large. The inconvenience, however, has been greatly obviated in practice, by introducing a new kind of title, namely, the presumption of a grant, made and lost in modern times; which the jury are advised or directed to find, upon evidence of enjoyment for sufficient length of time. But whether this presumption is to be regarded as a rule of law, to be administered by the judges, or merely as a subject fit to be emphatically recommended to the jury, is still a disputed point in England, though now reduced to little practical importance, especially since the recent statute on this subject.1

§ 539. Adverse possession. In the United States grants have been very freely presumed, upon proof of an adverse, exclusive, and uninterrupted enjoyment for twenty years; it being the policy of the courts of law to limit the presumption to periods analogous to those of the statutes of limitation, in all cases where the statutes do not apply ; but whether this was a presumption of law or of fact was for a long time as uncertain here as in England, and perhaps may not yet be definitely settled in every State. But by the weight of authority, as well as the preponderance of opinion, it may be stated as the general rule of American law, that such an enjoyment of an incorporeal hereditament affords a conclusive presumption of a grant, or a right, as the case may be ; which is to be applied as a præsumptio juris et de jure, wherever, by possibility, a right may be acquired in any manner known to the law.2

1 See Gale & Whateley on Easements, pp. 89-97 ; Pritchard v. Powell, 10 Jur. 154. By Stat. 2 & 3 W. IV. c. 71, § 1, no prescription for any right in land, except tithes, rents, and services, where the profit shall have been actually taken and enjoyed by the person claiming right thereto, without interruption, for thirty years, shall be defeated by showing an earlier commencement. And if enjoyed in like manner for sixty years, the right is deemed indefeasible and absolute, unless shown to have been enjoyed by express consent or agreement, by deed or in writing. By $ 2, a similar effect is given to the like enjoyment of ways, easements, and watercourses, and rights for the period of twenty years, unless defeated in some legal way other than by showing an earlier commencement; and for forty years, unless by consent in writin as in the preceding section. And by $ 3, the enjoyment of lights for twenty years without interruption confers an absolute and indefeasible title, unless it was by consent in writing, as in the other cases. Thus the enjoyment for the shorter period, in the first two cases, is made a præsumptio juris of title, excluding only one method of defeating it; and the enjoy. ment for the longer period, in every case, is made a præsumptio juris et de jure, against all opposing proof, except that of consent in writing. See Best on Presumptions, $ 98, pp. 116–129.

2 Tyler v. Wilkinson, 7_ Mason, 402, per Story, J. And see ante, vol. i. $ 17, and cases there cited ; Sims v. Davis, 1 Cheves, 2 ; 3 Kent, Comm. pp. 441, 442. On this

In order, however, that the enjoyment of an easement in another's land may be conclusive of the right, it must have been adverse,

subject, Mr. Justice Wilde, in delivering the opinion of the court in Coolidge v. Learned, 8 Pick. 504, remarked as follows : • That the time of legal memory, according to the law of England, extends back to the remote period contended for by the plaintiff's counsel, cannot be denied ; but for what reason, or for what purpose, such a limitation should have been continued down to the present day, we are unable to ascertain. Cruise says, 'that it seems somewhat extraordinary that the date of legal prescription should continue to be reckoned from so distant a period.' And to us it seems that for all practical purposes, it might as well be reckoned from the time of the creation. The limitation in question (if it can now be called a limitation) was first established soon after the Stat. Westm. 2 (13 Edw. I. c. 39), and was founded on the equitable construction of that statute, which provided that no writ of right should be maintained except on a seisin from the time of Richard I.

“ It was held that an undisturbed enjoyment of an easement for a period of time sufficient to give a title to land by possession was sufficient also to give a title to the easement. 2 Roll. Abr. 269 ; 2 Inst. 238; Rex v. Hudson, 2 Str. 909; 3 Stark. on Ev. 1205. Upon this principle, the time of legal memory was first limited, and upon the same principle, when the limitation of a writ of right was reduced by the statute of 32 Hen. VIII. c. 2, to sixty years, a similar reduction should have been made in the limitation of the time of legal memory. This was required not only by public policy, to quiet long.continued possessions, but by a regard to consistency, as it would have been only following up the principle upon which the first limitation was founded.

“ And of this opinion was Rolle (2 Roll. Abr. 269), though he admits that at his time the practice was otherwise. Why the opinion of this eminent judge, founded as it was on reasoning so solid and satisfactory, was not adopted by the courts, does not appear. But it does appear, that the principle on which his opinion was founded was respected, and carried into operation in another form. For although the courts continued to adhere to the limitation before adopted, yet the long enjoyment of an easement was held to be a sufficient reason, not only to authorize, but to require, the jury to presume a grant. And it has long been settled, that the undisturbed enjoyment of an incorporeal right affecting the lands of another for twenty years, the possession being adverse and unrebutted, imposes on the jury the duty to presume a grant, and, in all such cases, juries are so instructed by the court. Not, however, because either the court or jury believe the presumed grant to have been actually made, but because public policy and convenience require that long-continued possession should not be disturbed.

“The period of twenty years was adopted in analogy to the statute of limitations, by which an adverse possession of twenty years was a bar to an action of ejectment, and gave a promissory title to the land. Thus it appears, that, although prescriptive rights commencing after the reign of Richard J. are not sustained in England, yet a possession of twenty years only is sufficient to warrant the presumption of a grant ; which is the foundation of the doctrine of prescription. In the one case, the grant is presumed by the court, or rather is presumed by the law, and in the other case it is presumed by the jury, under the direction of the court. The presumption in the latter case is in theory, it is true, a presumption of fact, but in practice and for all practical purposes, it is a legal presumption, as it depends on pure legal rules; and, as Starkie remarks, 'It seems to be very difficult to say, why such presumptions should not at once have been established as mere presumptions of law, to be applied to the facts by the courts, without the aid of a jury. That course would certainly have been more simple, and any objection, as to the want of authority, would apply with equal if not superior force to the establishing such presumptions indirectly through the medium of a jury.

“But, however this may be, it is clear, that, when the law became settled as it now is, and a party was allowed to plead a non-existing grant, and the jury were bound to presume it, on proof of twenty years' possession, he would hardly be induced to set up a prescriptive right; and the limitation of legal memory thus became in most cases of very little importance. And this is probably the reason why the period of legal memory, as it was limited soon after the statute of Westni. 1, has been suffered to go on increasing to the present time, although it has long since ceased to be of any practical

that is, under a claim of title, with the knowledge and acquiescence of the owner of the land, and uninterrupted ; and the burden of proving this is on the party claiming the easement. If he leaves it doubtful, whether the enjoyment was adverse, known to the owner, and uninterrupted, it is not conclusive in his favor.' (a)

utility, and is utterly inconsistent with the principle on which the limitation was originally founded.

". The question then, is, whether the courts in this country were not at liberty to adopt the English law of prescription, with a modification of the unreasonable rule adhered to by the English courts in regard to the limitation of the time of legal memory. Certainly the law without the rule of limitation might have been adopted, and the courts here had competent authority to establish a new rule of limitation suited to the situation of the country. They had the same authority in this respect that the courts in England had to establish the English rule of limitation. This rule could not be adopted here without a modification, and it was modified accordingly ; and in con. formity with the principle of the English rule of limitation. This cannot be ascertained with certainty, but it is evident that the English rule could not have been adopted, and it is to be presumed that the period of sixty years was fixed upon as the time of limitation, in analogy to the statute of 32 Hen. VIII. c. 2, and in conformity with the opinion of Rolle. At what period of our history the law of prescription was first introduced into practice in the courts of Massachusetts cannot now be determined, but certainly it was before the time of legal memory, as we understand the limitation of it ; and innumerable pleas of prescriptive rights are to be found in the records of our courts. So the cases reported by Dane show that the doctrine of prescription has been repeatedly recognized and sanctioned by this court. 3 Dane, 253, c. 79, art. 3, § 19. The only question has been, whether our time of legal memory was limited to sixty years, or whether it was to extend to a period beyond which no memory or record goes as to the right in question. The general opinion, we think, has been in favor of the limitation of sixty years ; and we think it decidedly the better opinion. This seems to us a reasonable limitation, and, as before remarked, it is founded on the principle of the English rule of limitation, which was adopted in reference to the limitation of the writ of right by the statute of Westm. l. Whether since the writ of right has been limited to forty years, a similar limitation of the time of legal memory ought to be adopted, is a question not raised in this case and upon which we give no opinion.” & Pick. 508-511. The conclusiveness of the presumption was again asserted in Sargent v. Ballard, 9 Pick. 251. Afterwards, the point of time being before the same court, it was adjudged that the exclusive uninterrupted use and enjoyment for forty years, of an incorporeal right affecting another's land, was sufficient to establish a title by prescription. Melvin v. Whiting, 10 Pick. 295. And, subsequently, a similar enjoyment for twenty years was held equally effectual. Bolivar Man. Co. v. Neponset Manuf. Co., 16 Pick. 241. This rule is now expressly recognized, in several of the States, by statutes. See Rev. Stat. Massachusetts, c. 60, § 27 ; Rev. Stat. Maine, c. 147, § 14. And it seems to be either assumed or necessarily implied in the legislation of other States. See Elmer's Dig. LL. New Jersey, pp. 314, 317, tit. Limitations, $$ 1, 16 ; Den v. McCann, Penningt. 331, 333 ; 1 Rev. Stat. N. Carolina, c. 64, § 1, pp. 371, 372; Rev. Stat. Delaware, 1839, tit. Limitations, § 1, p. 396 ; 2. LL. Kentucky, p. 1125, tit. Limitations, $ 2 (Morehead & Brown's ed.); Morgan v. Banta, 1 Bibb, 582 ; Simpson v. Hawkins, 1 Dana, 306; Clay's Dig. LL. Alabama, p. 329, § 93; Rev. Stat. Missouri, p. 392, tit. Limitations, art. 1, § 1; 2 Rev. Stat. New York, p. 293, 88 5, 7; 3 Cruise's Dig. tit. 31, c. 1, § 21, n. (Greenleaf 's ed.). See also Shaw v. Crawford, 10 Johns. 236 ; Johns v. Stevens, 3 Vt. 316. The case of Bolling v. Mayor, &c. of Peters. burg, 3 Rand. 563, 577, which has been cited to the contrary, was a writ of right, respecting a corporeal hereditament, and turned upon the statute of limitations.

Sargent v. Ballard, 9 Pick. 251; Davies v. Stevens, 7 C. & P. 570 ; Jarvis v. Dean, 3 Bing. 447.

(a) Proof of an adverse and uninter- owner of the land, is sufficient to establish rupted use of a way for twenty years, with an incumbrance upon land without proof the knowledge and acquiescence of the of an express claim of the right by the

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