TOLLABD FARNHAM. 221 



inconsistent with the past and existing 1 state of things. We are 

 to presume that a corporation has been formed many hundred 

 years ago, when there is no trace at any time of its having ever 

 existed. If the inhabitants had held meetings in reference to 

 this right, or appointed any person to look to the right, or done 

 any act collectively of that description, the case would be different. 

 We should then have the inhabitants acting in a corporate 

 capacity in reference to their right, and from their doing so, and 

 from their existence de facto as a corporation, we might 

 according to the ordinary rule find a legal origin by a grant 

 from the Crown ; but to say that a corporation was created, which 

 never existed, would be carrying the fiction of a grant further 

 than has been ever done or than is consistent with reason." * 



The decision may well be compared with that of 

 Lord Hobhouse in the Lough ton Lopping case. It 

 may safely be said that if the one decision was right 

 the other was wrong. In the one case we find a great 

 Judge holding it to be his duty, if possible, to find 

 a legal origin for a custom, which had undoubtedly 

 existed from time immemorial. In the other we have 

 the Court of Exchequer pushing legal technicalities 

 to their extreme, in order to refuse recognition to a 

 custom of at least equal age and equal certainty a 

 custom which was part of the very existence of the 

 people in olden time. 



It need not be said that those who supported the vil- 

 lagers were very dissatisfied with this judgment. They 

 believed it might be upset by a higher tribunal on 

 appeal ; but they found themselves unable to incur the 



* Rivers v. Adams. 3 Exch. Div. 361. 



