Jenkin v Vivian
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1682 |
| Date | 01 January 1682 |
| Court | Court of the King's Bench |
English Reports Citation: 79 E.R. 1292
King's Bench Division
the same term in the same court. jenkin versus vivian. Intr. Hill. 1 Car. Rot. 331. In trespass, Jermy for the plaintiff took some exceptions to the plea of the defendant: 1. That the defendant claim common in Trigemore Moor ratione vicinayii, and doth not say, a tempwe cujits contrarium memoria hominum nan, existit. 2. The defendant alledgeth that he and all his occupiers of Down-close had used to have common in the said Tridgemore Moor, &c. whereas he ought to have shewn what estate they had in Down-close who have used to have this common : Roll, There need no prescription in this case, no more than in a common appenclant (which case of a common appendant was agreed by the whole Court) for it is mixt, 6 E. 4. 55. Co. lib. Intr. 625. tit. Trespas. For the second exception, I agree that if it be by way of prescription, then it is not good, as it is alledged here, but if it be way of custom (as here it is) then it is good, for a custom goes to land, and a prescription to persons, Hill. 11 Jac. Higgs brought an action upon the case for erecting of a new mill, and alledged a custom, that he and all the inhabitants, &c. an exception was taken to it, and it was there ruled that it was good, because alledged by way of custom: Co. lib. 6. Gateward's case, and also Mich. 14 Jac. it may be alledged by...
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