BAN STEAD COMMONS. 203 



Commoners. Where the right to the land of a 

 Common is challenged by the Lord of the Manor, by 

 inclosure under the Statute of Merton, it is well recog- 

 nised by the Courts, upon the construction of the 

 Statute, that the onus of proof that sufficiency of 

 common is left for the remaining rights of other 

 persons, rests with the Lord of the Manor who incloses. 

 But when the question in dispute is the right to more 

 or less digging of loam, or cutting of turf, it is equally 

 well established by law that the onus of proof, that 

 the acts of the lord constitute an injury to the 

 Commoners' rights, is thrown upon the Commoners 

 themselves. This was a much more difficult task for 

 the Plaintiffs in the Banstead case, for it necessitated 

 their proving exactly the number of persons entitled 

 to rights, and showing that the paring of turf and 

 digging of loam, as carried out by the Lord of the 

 Manor, was such as to interfere substantially with 

 their rights of common, and that the Commons in 

 their impaired condition could not support cattle which 

 might be kept on the land by the Commoners during 

 the winter months. 



Upon the Commoners of Banstead, therefore, the 

 onus rested to establish in their suit against the 

 mortgagees that there were still in existence rights, 

 in respect of an acreage of land so large that the 

 Commons, in their existing conditions with their 

 surface injured by the cutting of turf and digging 

 of loam, could not produce food enough for the cattle 

 which might be kept upon such lands. For this 



