ASHDOWN FOREST. 169 



the claims of right of the Commoners to cut and 

 carry away pasture or herbage, or brakes, heather, or 

 litter. On the contrary, there is more than negative 

 evidence that no such right was ever claimed or law- 

 fully exercised. There is no ground on which I can 

 hold that at any time there existed within the Forest, of 

 Ashdown a special custom conferring a right on the 

 Commoners to cut and carry any part of the growth of the 

 soil." Neither would he admit that the long-continued 

 user of cutting heather, by the Defendants, constituted 

 any right by prescription on their part. 



The Commoners appealed against this decision, and 

 on February 5th, 1881, the Lords Justices Brett, James, 

 and Cotton overruled Sir James Bacon on the point of 

 the user by the Defendants of cutting heather for their 

 litter. " In my opinion," said Lord Justice James, " the 

 Defendants have proved that for a period of sixty years 

 they have claimed to take, and have taken, not by way 

 of permission, but as a right, the litter of the Forest for 

 their farms. That is clearly within the Prescription Act. 

 It appears to me that if we were to hold that it was not, 

 we should be repealing that Act." On the other hand, 

 the Court of Appeal held, upon the construction of the 

 decree of the Duchy Court in 1693, which they 

 regarded as in the nature of an approvement under the 

 Statute of Merton, that the Commoners were not to 

 have any new common nor any new rights in the 

 herbage or pasturage, but that they were to have 

 the enjoyment, as under the old right, of common 

 of pasture, exclusive of the Lord of the Manor, sole 



