Harrison v. . Peck

1 N.C. 708

• Court: Court of King's Bench
• Decided: July 5, 1793
• Status: Published

Opinion

1. That the plaintiff prescribes for a way to his house, without saying an ancient house; for in prescribing in a city, one ought to say quia estantiqua civitas. Dyer, 70. He ought to say an ancient park, so in this case he ought to have alleged that it was an ancient house, whereupon the defendant might have taken issue, and the declaration ought to be certain to all intents.

2. On account of the uncertainty of the way. It is said a way from the house to the highway, without saying where the highway is or leads.

But on the other side, it was answered that there is a difference between a prescription which is personal and a custom which is local. Therefore, it is sufficient in a prescription to say time out of memory he had such a way, which implies that it is an ancient house. 3 H., 6, 31; 20 H., 6, 7. And a prescription being found in a verdict, it is well enough. 37 H., 6, 3; 39 H., 6, 6; 20 Ass., 18; Ancient Book of entry, 492. It shall be intended that the highway is on the same street or near to it. The declaration might have been better, and the only question now is, whether the verdict has not cured *the defect, for otherwise it will not do. Dyer, 70; 7 H., 6, 32; 7 E., 4, 2; 15 E., 4, 29; 22 H., 6. It seems to me the verdict has cured it.

CREW, C. J. I think so.

JONES and WHITLOCK, JJ., gave their opinions at Reading last Mich. Term.

And now judgment was entered for the plaintiff. 3 Bulstr., 334; Bendl., 160; Poph., 168; Palmer, 420.