15
Counsel's Opinion.
"1.—I am of opinion that the 33rd Section, Sub Section 8 of the Epping
Forest Act, 1878, merely enables the Conservators to adopt the regulation
of 1790 instead of the strict rule of levancy and couchancy, and does not
make it compulsory on them to do so, or introduce that regulation into
the Act so as to give it any Statutory force, or overrule the rights as
declared by the judgment of the Master of the Eolis.
"I am further of opinion that, according to the new construction of the
regulation of 1790, it does not enable or entitle the reeve to mark cattle
for any poor cottager or other person who has not already a right of
commoning by law ; and it does not purport to create any new or enlarged
right, even if it were competent for the Court of Attachments to do so.
1 am therefore of opinion that cottagers and other persons who have not
a right of commoning under the Decree of the Master of the Rolls, have
not such a right under either the regulation of 1790 or the Statute.
"With regard to the claim by prescription, that would, of course, be a
separate claim by each individual, and depend on the evidence of user in
each case. But, independently of this difficulty of proof, I do not think
that a claim to common of pasture as appurtenant to a house without
land, can be maintained in law.
"2.—I am of opinion that the Register is conclusive in this sense ; that
no person can claim to vote who is not entered on the Register ; but I do
not think it is conclusive for any other purpose.
"3.—I am of opinion that the Conservators may amend the Register by
entering the name of any person entitled to rights of common thereon at
any time, but I doubt whether they can be compelled to do so otherwise
than in accordance with rules made by themselves. If no rules have been
made under the Fourth Schedule, Regulation 3, and subject to the pro-
visions of the rules (if any), I am of opinion that they can be called upon
to insert the name of any person entitled to a right of common at any
time.
"4.—I am of opinion that the proper mode of procedure is by
Mandamus.
(Signed) "Horace Davey.
"8, Old Square, Lincoln's Inn,
" June 21st, 1884."
If the learned counsel had said that he was of opinion that a claim to
common of pasture as appurtenant to a house with less than half an acre
of land could not be maintained in law, there might be some cause for
congratulation among the Conservators—of course he said nothing of the
kind, and it is a puzzle to find where in the "opinion " the consolation for
the Conservators comes in at all. Sir Horace Davey recognises that a claim
by prescription would be treated on its merits, and that the Register is not
conclusive in the sense that only those whose names are inserted thereon
are legal commoners: those are unquestionably points favourable to the
poor commoners.
The Forest Overburdened with Cattle.
If the full legal claims of the cottagers were granted, we are told by Mr.
E. N. Buxton and others, that the Forest would be surcharged, and in a
short time spoiled by a great influx of cattle. If that were so, a case would
have been made out for an amendment of the law, but such a fact would