Page:The New International Encyclopædia 1st ed. v. 16.djvu/437

* PEESCRIPTION. 375 PRESENTMENT. importance of prescription has been greatly les- sened by official registration of titles anil the in- disposition of the law to recognize other than registered rights. Immemorial prescription has found no favor in the eyes of modern legislators. Prescription of actions, in all the codes, is sub- stantially Koman. There is a tendency, however, to shorten the period of limitation for ordinary debts, and to permit prescription to run against persons under guardianship, the guardians being of couise responsible to their wards for losses due to their negligence. Groixu.s of Prescription. Prescription rests primarily upon social interests. Statutes of pre- scription terminate controversy; they are 'stat- utes of rest.' The extinction of rights by pre- scription and limitation is further defended on the ground that it is a just penalty for negli- gence. In modern discussion, the shortening of the periods within which debts are recover- able is defended on the ground that long credits are undesirable. In estimating prescription it should be remem- bered that it has other functions besides making bad titles good and liberating persons who are really debtors. It operates constantly to trans- form derivative titles, which are not always easy to prove, into original titles, based on recent facts and conditions. It also operates to relieve those who are not debtors, because they have dis- charged their obligations, from the burden of proving payment. In both cases, proof becomes increasingly difficult with the lapse of time; and the relief which prescription gives to true owners, and to persons who are not truly debtors, is in- valuable and indispensable. Consult authorities cited under Civil Law; also Unterholzner, Verjahrungslehre (2d ed., Leipzig, 1838) ; and Grawein, Verjiihrung ilnd gesetzliche liefristvng (1880). Engli.sh and American Law. In the common- laAV system prescription is employed in a narrow- er sense than in the legal systems derived from the Roman law, being restricted to the acquisition of the interests in land described as incorporeal, such as easements and profits a prendre, the acquirement of title to personal property and to corporeal interests in land by lapse of time beiixg comprehended under the heads of Adverse Pos- SE.S.SION and Limitation of Action.s (qq.v.). The common-law theorv' of the efl'eet of prescrip- tion is also radically dift'erent from that of the civil law, as its operation is not to sanction a ■wrongful possession, but to furnish evidence, more or less conclusive, of the lawful origin of the right claimed. This theory in English law took on the grotesque form of the doctrine of a lost grant, the open and notorious enjoyment of the Tight claimed without interruption for the pre- scriptive period raising a presumption that it was originally conferred by deed from the owner of the land afl'ected. the tender of the deed in court being excused by the further fiction of its loss. This presumption may still be rebutted by showing that the alleged grantor could not pos- sibly have made the grant in question, but in England (where prescriptions are now mainly governed b.y statute), as well as in the United States (where they are still regulated by the common law), the fiction of a lost grant has now generally been abandoned and the whole doctrine placed on a more rational basis by being assimi- lated to the principles governing adverse posses- sion of lands. The latter, however, still retain many of the peculiarities derived from the feudal doctrines of seisin and disseisin (qq.v.), the legal title of the adverse holder of land being in theory based not on the length of his possession, but ujjon his seisin, however wrongful this may have been — the lapse of time operating only to 'quiet' the title thus obtained. The period of prescription has varied from the 'immemorial enjoyment' of the earlier common law (interpreted to signify an uninterrupted user from the accession of Richard I., 118!!) to the modern period, which, by analogy to the limi- tation of real actions by statute, is usually fixed at twenty years. As in the case of limitation, also, the prescriptive term will not begin to run during the existence of a legal disaliility — as in- fancy, insanity, or coverture — in the owner of the land over which the right in question is asserted, nor if the land is at the time of the adverse user in the possession of a tenant or disseisor. An easement or profit once acquired, however, against the tenant in fee simple binds the land into whosesoever hands it may thereafter come. The operation of the principle of prescription is further restricted by limiting it to rights of enjoyment of a common and well-known sort. and, in the United States, to such as answer the description of positive or affirmative, as distin- guished from negative rights. Thus while rights of way. of drainage, and the like, m.iy be gained by prescription everywhere, the negative easements of light and of lateral support cannot generally be acquired in this way in the United States, al- though in England no such distinction is recog- nized. But new and unusual incidents of own- ership resting on prescription — such, for ex- ample, as the right to the access of air to a wind- mill or the right to a fine view — will not be ad- mitted even in Great Britain. Such rights, as well as the negative easements, in this country arise only by grant. Strictly speaking, prescriptive rights, as the expression is used in English law, are to be fur- ther distinguished from public or quasi-public rights in the nature of easements or profits, such as commons appendant, customary rights of way, and the like, even when these rest, as they com- monly do. on immemorial enjoyment. The dis- tinction rests on the fact that prescription in legal theory always presumes a grant : and if the right in qiiestion is claimed by an indefinite num- ber of people, as in the case of a custom, it can- not rest on a grant, and is therefoi'e not strictly prescriptive in character. Consult: Gale, Ease- ments (7th ed., London, 1899) ; Washbiirn. Ease- ments and Servitudes ; 3 Harvard Law Review, 183. PRESENTATION AT COURT. See CocBT, Peesextahox at. PRESENTMENT (OF. presentment, pre- sent enient. frum jiresenter, to present, from Lat. prwsentare, to set before, from /u-a-.svii.s. pres. part of prceesse, to be at hand, from prw. before + ps.se, to be). An informal accusation by a grand jury, as to a crime coming to its notice, and afterwards reduced to the form of an indictment. It is usually the result of an investigation conducted before it. or based upon information as to a crime communicated to it by some one while it is in session. A presentment differs from an indictment in that the latter is