ccclxviii russell and HANDFORDS case nuisance word of prescription seize in  fact and in law Russell bring a action upon the case against Handford and  declare quod cum a certain molendinum ab entiquo to be raise upon such a river  de quo one Thomas Leonard er p Russell who heir the plaintiff be be seize in  his demesne as of fee and die thereof seize after who death the same descend  to the plaintiff by force of which the plaintiff be seize in his demesne as of  fee and so seize the defendant upon the same river have levy a new mill per  quod cursus aquae predict narrow be and upon not guilty it be find for the  plaintiff it be move in arrest of judgement that it be not lie in the  declaration that his mill have be a mill time out of mind c and then if it be  not a ancient mill time out of mind c it be lawful for the defendant to erect  a new mill and it be say that these word ab antiquity be not fit or  significant word to set forth a prescription but the word a tempore pron   interrog  opposite direction memory man non step forth be the usual word for  such a purpose see the book of entry see h if I have a mill and another levy  another mill there and the miller hinder the water to run to my mill or do any  such nuisance a action lie without any prescription as it seem by the book in  h the plaintiff declare that he be lord of such a town and that he and all his  predecessor prior of n lord of the same town have have within the same town  four mill time out of mind c and that no other person have any mill in the say  town but the plaintiff and his predecessor the say four mill and that all the  tenant of the plaintiff within the same town and all other resiants there c  ought and time out of mind c have use to grind at the say mill of the  plaintiff and that the defendant one of the tenant of the plaintiff have erect  and set up a horse mill within the say town and there the resiants grind c and  it be hold that peradventure upon such matter a action lie because the  defendant be one of the tenant of the plaintiff be bind by the custom and  prescription so as he have offend against the privity of the custom and  prescription and as to the case in question it be the opinion of all the  justice that if the mill whereof the plaintiff have declare be not a ancient  mill that this action do not lie upon the matter eastern quod cursus aquae  coarcta but yet at last it be hold by the court to be good enough  notwithstanding the exception another exception be take to the declaration  because that here be set forth the seize of the father of the plaintiff and  the descent to the plaintiff by force of which he be seize in his demesne c  without show that after the death of the father that he enter into the say  mill c so as no seize in fact be allege but only a seize in law and if the  plaintiff be not seize in fact he can punish his personal wrong but the  exception be disallow for such a seize in law be sufficient for the  maintenance of this action and afterward the plaintiff have judgement to  recover his damage see for the action it self contain in the declaration  Elizabeth dyer roll hob ante cro Leonard mich Elizabeth in the exchequer