where such right, profit, or benefit, shall have been actually taken and enjoyed by any person claiming right thereto (k), without interruption (1), for the full period of thirty years, be defeated or destroyed by showing only that such right, profit, or benefit, was first taken or enjoyed at any time prior to such period of thirty years, but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated: and when such right, profit, or benefit, shall have been so taken and 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."Although a thirty years' user, as of right and without interruption, cannot be defeated by showing only that it commenced at an antecedent period, yet the commencement of the user may be shown to have been at such a time (antecedent to the commencement of the thirty years) that the right could never have had a legal origin either by prescription or grant (m).

By sect. 4.-"Each of the respective periods of years hereinbefore mentioned shall be deemed and taken to be the period next before some suit or action wherein the claim or matter to which such period may relate shall have been or shall be brought into question; and no act or other matter shall be deemed to be an interruption, within the meaning of this statute, unless the same shall have been or shall be submitted to or acquiesced in for one year after the party interrupted shall have had or shall have notice thereof, and of the person making or authorizing the same to be made."

Sect. 6 enacts. "That in the several cases mentioned in and provided for by this act, no presumption shall be allowed or made in favour of any claim upon proof of the exercise or enjoyment of the right or matter claimed for any less period of time or number of years than for such period or number mentioned in this act, as may be applicable to the case and to the nature of the claim."-"This provision is meant only to encounter presumptions, from an exercise of the right during such an imperfect period, that it was exercised in older times. The effect of this clause is, that a claimant, proving enjoyment for less than the specified time, shall not, on that ground, carry back his right to a period before that which his proof extends to" (n).

By the seventh section, the time during which any disability exists, e. g. infancy, non-compos, coverture, or tenancy for life (0), or during which any action shall have been pending, and diligently

(k) See Tickle v. Brown, 4 A. & E. 369;
and see post, p. 482.

(1) See Carr v. Foster, post, p. 481.
(m) Mill v. Commissioners of the New
Forest, 18 C. B. 60; see also Attorney-

General v. Mathias, 27 L. J., Chan. 761.

(n) Per Lord Denman, C. J., in Carr v. Foster, 3 Q. B. 587.

(0) Clayton v. Corby, post, p. 481.

prosecuted, (until abated by the death of any party (p),) shall be excluded in the computation of the periods (q), except only where the claim is declared to be absolute.

Under this statute, a plea of enjoyment of right of common for thirty years before the commencement of the suit is sufficient, without saying for thirty years next before (r). "The 4th section of the statute is nothing but an exposition of the proof required to establish the right. It is a mere question of evidence; and if the plaintiff joins in the issue now offered, the defendant will not be able to get out of the proof of enjoyment of the right for thirty years next before action." Per Tindal, C. J., S. C. "That case (Jones v. Price) merely establishes that the averment of 'thirty years before the commencement of the suit,' means 'thirty years next before the commencement of the suit;' in other terms, that the omission of the word 'next' makes no difference.-Taking the 4th and 5th sections together, it is clear that an averment of enjoyment for thirty years next before the times when, &c., is not in conformity with the act. The period mentioned in the act is thirty years next before some suit or action in which the claim shall be brought into question. Generally speaking, that would be next before the commencement of the suit in which the pleading takes place; at all events it is not next before the times when, &c." (s). Such an enjoyment, viz., for the prescribed number of years before the act complained of, "gives an inchoate title, which may become complete or not by an enjoyment subsequent, according as that enjoyment is or is not continued to the commencement of the suit" (t).

Before the passing of this act, a prescriptive claim was a claim of immemorial right; the evidence of it was such as a party might be able to give in such a case; and the jury were to draw their inference from such proof as could be produced. Now, the burden of establishing an immemorial right is withdrawn, and the proof is limited to a thirty years' enjoyment, but that enjoyment must be proved to the full extent; therefore proof of a thirty years' enjoyment of common of pasture is not complete, if proof be given of an enjoyment for twenty-eight years immediately preceding an action in which the right is disputed, and it appear that twenty-eight years back the enjoyment was interrupted, but that the right was exercised before the interruption: and the party disputing the right is not bound to show that such interruption was adverse; it lies upon the party prescribing, under the statute, to prove thirty years' uninterrupted enjoyment (u). But it is not necessary in cases of

(p) By the Com. Law Proc. Act, 1852, s. 135, actions no longer abate by the death of the parties thereto.

(q) Clayton v. Corby, infra.

(r) Jones v. Price, 3 B. N. C. 52.

(s) Per Lord Denman, C. J., Richards v. Fry, 7 A. & E. 698.

(t) Per Parke, B., Ward v. Robins, 15 M. & W. 237.

(u) Bailey v. Appleyard, 8 A. & E. 161.

tenancies for life, &c., under sect. 7, to prove that the whole time of enjoyment immediately preceded the action. It is sufficient if the enjoyment previous to the tenancy for life, &c., and subsequently, up to the commencement of the suit, make up the prescribed period. Clayton v. Corby, 2 Q. B. 813. This, however, must be specially replied. Pye v. Mumford, post.

The "interruption" which defeats a prescriptive right under this statute is an adverse obstruction, not a mere discontinuance of user by the claimant. Hence, in a case under sect. 1, where a commoner had ceased to use the common during two intermediate years of the thirty, having no commonable cattle at the time, but had used it before and after; it was held to be a question for the jury whether the right had ceased, or was still substantially enjoyed, and that they were justified from such evidence in finding a continued enjoyment of the right during thirty years (x). There must, however, be an actual enjoyment during the first (y) and last years of the prescribed time (z); and although, when once the enjoyment as of right has begun, no interruption, unless acquiesced in for more than a year, will defeat the right (a), yet interruptions, although not so acquiesced in, may show that such enjoyment never was of right, but contentious throughout (b).

A plea of right of common under the above statute is a plea of user, and therein differs from a plea of immemorial prescription, for a right claimed by user can only be co-extensive with the user, and is therefore divisible, but rights claimed by prescription are in their nature entire. Where, therefore, to an action of trespass qu. cl. fr., the defendant pleaded a right of common of pasture by thirty years user over a close which contained 3000 acres, but the plaintiff proved that the particular part of the close on which the trespass was committed had been inclosed, and the inclosure acquiesced in, for more than a year, the plaintiff was held to be entitled to a verdict (c).

By sect. 5,-" In all actions upon the case, and other pleadings, wherein the party claiming may now by law allege his right generally, without averring the existence of such right from time immemorial, such general allegation shall still be deemed sufficient ; and if the same shall be denied, all and every the matters in this act mentioned and provided, which shall be applicable to the case, shall be admissible in evidence to sustain or rebut such allegation; and in all pleadings to actions of trespass, and in all other pleadings

(x) Carr v. Foster, 3 Q. B. 581.

(y) But see Lawson v. Langley, 4 A. & E. 890; Hall v. Swift, 4 B. N. C. 381.

(z) Lowe v. Carpenter, 6 Exch. 825, where, semble, per Parke, B., that the right should be exercised once a year at least.

VOL. I.

(a) Flight v. Thomas, 8 Cl. & F. 231.
(b) Eaton v. Swansea Waterworks Co.,
17 Q. B. 267.

(c) Davies v. Williams, 16 Q. B. 546.
See Peardon v. Underhill, ibid. 120.

I I

wherein, before the passing this act [1st August, 1832] it would have been necessary to allege the right to have existed from time immemorial, it shall be sufficient to allege the enjoyment thereof as of right, by the occupiers of the tenement in respect whereof the same is claimed, for and during such of the periods mentioned in this act as may be applicable to the case, and without claiming in the name or right of the owner of the fee, as is now usually done; and if the other party shall intend to rely on any proviso, exception, incapacity, disability, contract, agreement or other matter hereinbefore mentioned, or on any cause or matter of fact or of law, not inconsistent with the simple fact of enjoyment" (e.g. a tenancy for life during part of the period (d))," the same shall be specially alleged and set forth in answer to the allegation of the party claiming, and shall not be received in evidence on any general traverse or denial of such allegation."

A plea under the statute must state that the enjoyment was had "as of right." In Holford v. Hankinson, 5 Q. B. 584, a plea which omitted this statement, although it stated that the defendant "had used and actually enjoyed, &c., and still of right ought to have, use, &c.," was held bad after verdict. Where A. was seised in fee of a farm, which he occupied by his tenants, and was tenant for life of a moor, which he occupied himself, and the tenants of the farm had for more than sixty years depastured their cattle on the moor without interruption; it was held, that such user could not be as of right within the statute, for that the right of the tenants of the farm over the moor was derived from A., who could grant or withhold it at pleasure; and as he could not have an enjoyment as of right against himself, so neither could his tenants (e). Evidence that, during the alleged enjoyment, the estates over which and in right of which it has been exercised were held by the same person, disproves enjoyment as of right; and such unity of possession need not be pleaded, but may be given in evidence under a traverse of the enjoyment as of right (ƒ).

VIII. Evidence.

To a declaration in trespass for breaking and entering two closes of the plaintiff, the defendant pleaded that the said closes were, from time immemorial, parcels of a waste, and that he, the defendant, had a prescriptive right of common in the waste; and because the closes were wrongfully separated from the residue of the waste, he broke down the gates. Replication, that the said closes were

(d) Pye v. Mumford, 11 Q. B. 666.

(e) Warburton v. Parke, 2 H. & N. 64.

(f) Clayton v. Corby, 2 Q. B. 813.

not wrongfully separated from the residue of the waste, but continually for twenty years and more, and before the first time when, &c., had been and were separated and divided, and inclosed from the residue of the waste, and occupied and enjoyed during that time in severalty. Issue thereon. It was held, that the allegation in the replication, that "the said closes had been inclosed from the residue of the waste, and enjoyed in severalty," was divisible, and satisfied by proof that any part of the closes in which the trespasses were committed had been so inclosed for that period, and that the plaintiff might therefore recover pro tanto (g). By the Common Law Procedure Act, 1852, sect. 75, it is provided, that all pleadings "capable of being construed distributively shall be taken distributively, and if issue is taken thereon, and so much thereof as shall be sufficient answer to part of the causes of action proved shall be found true by the jury, a verdict shall pass for the defendant in respect of so much of the causes of action as shall be answered, and for the plaintiff in respect of so much of the causes of action as shall not be so answered."

A plaintiff in trespass was the occupier of a farm, called Tyr Adam, situate within a manor adjoining a mountain, and claimed to be exclusive owner of that part of the mountain next adjoining his farm. The question being, whether he was exclusive owner of the soil, or had a right of common only over that part of the mountain, the defendant, in order to show that the plaintiff had not the right of soil, produced from the rolls of the manor an instrument, purporting to be a presentment in the year 1759, wherein the jurors, after reciting that they were sworn to view such part of the waste land as lieth within the lordship, as was claimed by A. B. to belong to his tenement called Tyr Adam, upon their oaths said, that they had considered the claim and the evidence, and presented that all the said lands within the said boundaries were part and parcel of the common called K., and that neither the said A. B., nor the tenants or occupiers of the tenement called Tyr Adam, had any right to the same, or any greater right than such as the other freehold tenants of the lordship had for their commonable cattle. It was held, that this instrument was not admissible in evidence; first, not as a presentment, because the homage had no right to decide the claim made by an individual to the freehold (h); nor as an award, because there was no mutual submission, either express or implied; nor as evidence of reputation, because it was on the face of it made post litem motam (i).

Levancy and Couchancy.- Trespass for entering plaintiff's close with cows and sheep, and destroying his grass. As to the cows,

(h) See Daniel v. Wilkin, 7 Exch. 429. (i) Richards v. Bassett, 10 B. & C. 657.