The same Terme in the same Court. Jenkin versus Vivian.
IN trespas, Jermy for the Plaintiff took some exceptions to the Plea of the Defendant: 1. That the Defendant claim common in Trigemore Moore ratione Vicinagii, and doth not say, a tempore cujus contrarium memoria hominum non existit. 2. The Defendant alledgeth that he and all his Occu∣piers of Down-close had used to have common in the said Tridgemore Moore &c. whereas he ought to have shown what estate they had in Down-close who have used to have this cōmon: Rol. there néed no prescriptiōin this case, no more then in a cōmon appendant (which case of a cōmon appendāt was agreed by the whole Court) for it is mixt, 6. E. 4. 55. Co. lib. Intr. 625. tit. trespas. For the 2. ex∣ception, I agree that if it be by way of prescription, then it is not good, as it is alledged here, but if it be by way of custome (as here it is) then it is good, for a custome 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 Custome, 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 cu∣stome: Co. lib. 6. Gatewards case, and also Mich. 14. Jac. it way be al∣ledged by way of custom, as our case is, and 15. E. 4. when it is by way of dis∣charge, it may be alledged in all Occupiers, Jermy for the Plaintiff, It cannot be a custom here, for as it is in 23. Eliz. Dyer, A custom cannot ex∣tend to a particular place, and this was agreed by the whole Court: But there is another exception, he clayms common in Tridgemore Moore for cat∣tle levant and couchant in Down-close, and does not aver, that these beasts were levant and couchant upon Down-close, and per totam Curiam, this ought to be averred, and it was also agreed that in this case he ought to have pre∣scribed: But for the exception of all occupiers it was doubted: but for the other exceptions Iudgment was given for the Plaintiff.