220 TOLLARD FARNHAM. 
1878, Chief Baron Kelly delivered judgment, on behalf 
of the Court, in favour of Lord Rivers, and refused to . 
admit the claim of the villagers. 
“Tf,” he said, “such a right could be claimed by custom 
there is evidence of user which, coupled with the evidence 
of reputation, might raise a question whether the custom 
did not exist. But the right claimed is ‘a profit & prendre’ in 
the soil of another, and the authorities are uniform, from 
Gateward’s case in Coke’s Reports, that such a custom is bad 
in law. . . Many sound reasons are given in the authorities 
for this conclusion. 
“It might be added that where inhabitancy is capable of 
an increase almost indefinitely, and if the right existed in a body 
which might be increased to any number, it would necessarily 
lead to the destruction of the subject-matter of the Common. 
There cannot, therefore, be such a custom; and for the same 
reason and others there cannot be a prescription, and there could 
not be a valid grant to so fluctuating a body, or a body so in- 
capable of succession, in any reasonable sense of the term, so 
as to confer a right upon each succeeding inhabitant. 
“There was a considerable argument before us upon the 
effect of a grant by the Crown to the inhabitants of a parish or 
village. The question seems to have arisen in early times, and 
there are several decisions in the year books on the subject; 
and the effect of them appears to be that where there is a grant 
by the Crown to the inhabitants of a particular parish, if the 
grant is made fora specified purpose, it has the effect of in- 
corporating them so as to carry that purpose into effect. 
“Tn this case we are called upon to say that because there 
has been user in the inhabitants, there has been a grant in such 
a form as to make them into a body corporate, having perpetual 
successors. It appears to us that we ought not to make this 
presumption, not because it is impossible, but because it is 
