TOLL ART) FARNHAM. 223 



case, which has already been dealt with, and it formed a 

 main topic of the counsel employed by the Corporation 

 of London to resist the claims of the inhabitants of 

 Loughton. 



Lord Hobhouse discussed the Tollard Farnham case 

 in his judgment, and succeeded in drawing a distinction 

 between the facts of that case and those before him. 



n The Judges of the Exchequer/' he said, M considered that 

 the evidence of user was such as to raise a question whether a 

 corresponding custom did not exist ; but they held there could 

 not be such a custom. On the question of prescription they 

 gave their general conclusion upon an examination of the 

 evidence which they do not give in detail. That conclusion is 

 that the evidence entirely fails to prove the user by the inhabi- 

 tants generally, or as inhabitants, such as to justify the pre- 

 sumption of a grant by the Crown. . . . On the question 

 of incorporation they felt great difficulty. They held that it 

 was necessary to enable the inhabitants to take an interest, 

 and that they could not presume it in the absence of all evidence 

 of corporate acts, and when there was another body legally 

 existing viz. the tenants of the Manor, who are exercising 

 unrestricted rights and publicly asserting their entire control 

 over the underwood on the Common." 



It is difficult to grasp the distinction between the 

 facts of the two cases. Chief Baron Kelly and Lord 

 Hobhouse arrived at different conclusions from the 

 facts before them. It appears almost certain that Lord 

 Hobhouse, upon the principles he laid down, would 

 have felt himself bound to find a legal origin for an 

 user on the part of the inhabitants of Tollard Farnham, 

 which was clear and definite, and went back to ancient 

 times. It is almost as certain that the Barons of 



