enjoyed as aforesaid, for the full period of sixty years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was taken and enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing."

By the seventh section, the time during which any disability exists, ex. gr., infancy, non compos mentis, coverture, or tenancy for life, or during which any action shall have been pending and diligently prosecuted, until abated by the death of any party thereto, may be excluded in the computation of the aforesaid periods, except only where the claim is declared to be absolute.

By section 54. of the General Enclosure Act it is provided, that where any claim shall be made to any right of common or other right which could not be sustained in law, but proof shall be made that enjoyment has been had under the right so claimed for sixty years or upwards, it shall be lawful for the valuer or commissioner to allow such claims in the same manner as if the right had been legally sustainable.

It would appear from this section to have been the intention of the legislature to legitimise every user of sixty years, and to give every man a right to do upon a common what for sixty years he had done. Whether these words will avail to carry out this intention will perhaps still be questioned. In proving enjoyment under these acts, short

intervals of desuetude will not be considered as interruptions of the user. It has been held that an intermission for more than a year is not an interruption, and where an intermission of two years was proved, it was left as a question for the jury, whether there had been a substantial enjoyment of the right.

*

If the common-law line of proof be adopted, it will be often useful to be able to determine whether the right claimed is appendant or appurtenant.

This

The right may depend upon custom or upon prescription. The distinction between these two has been already sufficiently pointed out. distinction, however, operates in a very important manner upon the evidence. To prove a custom, evidence of reputation is admissible; to prove a prescription, it is not.

Reputation and traditionary declarations must be supported by evidence of exercise of the right claimed. They must also be of a public nature, "because," said Lord Kenyon in Weekes v. Sparke †, "All mankind being interested in the subject, it is to be presumed that they will be conversant with and discourse together about it, which cannot apply to private prescription." They must be also derived from persons likely to know the facts; must be general as to the whole custom, and not confined to particular places; and must have been

* Carr v. Foster, 6 Jur. 837. 14 East, 327. n.

† 1 M. & S. 679.

made under such circumstances that no suspicion could exist that the minds of the speakers were biassed. Especially there must have been no dispute pending as to the matter at the time of such declarations.*

The entry by homage on the court roll is evidence to prove a custom within the manor, although there be no evidence of the exercise of that custom in any particular instance: for it is the solemn opinion of the homage, delivered upon oath, upon being convened to inquire into the point, and founded on all the information which tradition and personal observation can give them.†

It is a general rule that acts done on one part of a waste may be given in evidence to show the usage on another part of the same waste. †

But the custom of one manor or district is not admissible to prove the existence of the same custom in another. §

We have already seen, that it is not only necessary that the existence of the custom should be established by evidence, but also that the custom itself should be reasonable, certain, compulsory, and consistent.

The usual evidence, however, by which rights of common, whether customary or prescriptive, will be proved, will be that of usage; and "usage,

* B. N. P. 295.

† 5 T. R. 26. Bryan d. Child v. Winwood, 1 Taunt. 208. 2 M. & S. 92

*

though it be not ancient, which is admissible and unopposed by opposite evidence, is usually conclusive." Acts of usage within the knowledge and experience of living witnesses are the most obvious proofs of the existence of the right claimed. Where, however, such usage has been scanty, recourse must be had to old individuals, ancient writings, and other depositories of reputation.

When the right claimed is for common appurtenant, ancient writings and parchments, containing grants of commonable rights, are often made available. They will be properly received in evidence if drawn from a proper custody. The proper custody is the custody of the person in whose hands the document would naturally or probably have been, provided it were what it purports to be. Documents brought from the British Museum, the Bodleian Library, and other public repositories, have often been refused by the Courts, in the absence of proof that they were originally deposited there by the parties to whom their custody naturally belonged.†

The extent of the right claimed must be measured by the capacity of the ancient enclosures in respect of which the right is claimed to winter commonable beasts, unless indeed the 54th clause of the act of 8 & 9 Vict. c. 118. should be held

* R. v. Hoyte, 6 T. R. 430.

† Swinnerton v. Marq. of Stafford, 3 Taunt. 91.

to convert a practice of surcharging continued for sixty years into a right.

In cases where rights of common in gross occur upon wastes whereon other commoners have rights limited by levancy and couchancy, it is submitted that the proper course of admeasurement will be, to take the total number of cattle that the old enclosures giving rights of common will winter, and adding thereunto the number conferred by the right in gross to allot proportionably. For in the numerous instances in which the waste is incapable of carrying the whole of the cattle which have rights upon it, it would be manifest injustice to allot to the commoner in gross a proportion sufficient to maintain his total number of cattle.

As to the competency of witnesses, the general rule was, that if the issue were on a customary right of common, by the establishment of which the witness would be benefited, he would be incompetent, but that when he gave evidence to establish the private prescription of another he was competent.* Thus, if the issue be on a right of common which depends on a custom pervading the whole manor, the evidence of the commoner, according to the old law, would have been inadmissible, because, as the right depends on the custom, the record in that action would be evidence in another action brought by that very

* 1 T. R 302., 3 T. R. 32.