at this term delivered the opinion of the Court as follows.
,The Circuit Court of Common Pleas, to whose decisión ílie exceptions in this case were filed, seem to have rejected the parol proof which was offered by the plaintiff arising from the confession of Ricker, on the ground that the division of the fence could not have been made, unless by an assignment to each of his proportion according to the provision of the Act of 1821, clu *744'4: — or by ail agreement' in writing.- It is not stated that any’ stick assignment or agreement had ever been made, and the question is whether any other hind of division may have been-: made, which was existing at the time of impounding, and which-might have been legally proved by parol evidence. If so, then the decision of the Court was incorrect and a new trial must be granted. The case of Rust v. Low & al. 6 Mass. 90, on' which the defendant’s counsel relies, is, full of learning on this subject, and contains principles by which this cause may be satisfactorily decided. In that case Parsons C. f. observes that “ the owner of cattle may aver that the party complaining “ ought by law to make and maintain the fence ; in which case “ he may produce the assignment by fence viewers ; or shew that “ he is bound by agreement to make and repair the fence, which “agreement he ought to set'cubin' pleading; or that he was “ bound by prescription, when he should regularly plead the pre- “ scription. Every person then may distrain cattle doing dam-. “ age on his close, or maintain trespass against the owner'of the “ cattle, unless he can protect himself by the provisions of the “ statute, or by a written agreement to which the parties to the “ suit are-parties or privies, or by prescription.^ According to the foregoing principles, an obligation by prescription on the defendant, to make and maintain the defective part of the fence-on the dividing line ought to have been set out in the plaintiff’s replication : and if the question now before us, were a question of special pleading, we, might- admit the reasoning of the defendant’s counsel on this point. But we arc now deciding on a question of Evidence. The issue before the jury was, whether ‘ the defective fence- was the part belonging to the defendant Ricker. To prove this fact by prescription,- proof of usage is correct and pertinent The' Chief Justice in the case before mentioned, goes- stiff-further and observes that “ the country has- “ now been settled long enough to allow of the time necessary “to prove a prescription:- and antient assignments by fence-' “ viewers, made under the provincial laws, and also antient “ agreements made by the parties, may have once existed and “ be now lost by lapse of time.” Perhaps this kind of evidence might have been produced by the plaintiff in the case at bar, to pi’ove a prescription; and we do not perceive why all such-*75proof would not have been admissible and pertinent. Whether it be probable that such proof can be produced, is not for us to inquire; but as the Court excluded all parol testimony, we think the exception must be allowed, and a new -trial be had at ;ihe bar of this Court.