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 thatif 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 
