Ex. Div.]

Stanley v. White, 14 East, 332;
Johnson v. Barnes, L. Rep. 7 C. P. 592;
Warrick v. Queen's College, Oxford, L. Rep. 6 Ch.
App. 716, 722;

Willingale v. Maitland, L. Rep. 3 Eq. 103. [KELLY, C.B.-Did any grant similar to the one you claim ever exist in history ?] Yes, 13 Eliz. c. 25, refers to such a grant. See also Kemble's Saxons in England, vol. 2, pp. 78-84. and the Itineraries of 8 Edw. III. (quoted in Willingale v. Maitland from Lord Hale's MSS. in Lincoln's-inn Library, vol. 44).

Bowen in reply.-As to the rights of leaseholders to act by custom of the manor, the authorities cited for the defendants refer to enfranchisement, not to the mere substitution of leasehold for copyhold tenure. Enfranchisement destroys the tenure altogether, but these leases specially preserve it:

Doidge v. Carpenter, 5 Mau. & Sel. 49;

Lascelles v. Lord Onslow L. Rep. 2 Q. B. Div. 433. The right of common survives in equity if not at law :

Styant v. Stakes, 2 Vern. 250.

No such grant as the one here claimed has ever been known, and upon the evidence there is no room for its presumption. Cur. adv. vult.

Aug. 8. Judgment was now delivered by KELLY, L.C.B.-The question argued before us in this case has been, whether the inhabitants of the parish of Tollard Farnham, in the county of Dorset, have the right to cut and take faggots or baskets of the underwood growing upon a part of the common which has been inclosed by the plaintiff. At present we deal with the question which was fully argued before us, namely, the right of the inhabitants as inhabitants. The user, and the extent of the user, is stated in the case to have been as of right, but the nature of the right in respect of which it was exercised is one of the questions to be decided. The defendant in the first action (Adams) says in his evidence, that the common was free to anybody in the parish. So that as far as the user goes it agrees with the claim set up, and notwithstanding some expressions to be found in the evidence, there is no ground for regarding this as a case in which a particular provision has been made by royal grant or otherwise for the poor of the parish. If 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 à prendre in the soil of another, and the authorities are uniform, from Gateward's case (6 Coke Rep. 60) to Chilton v. The Corporation of London (L. Rep. 7 Ch. Div. 735), that such a custom is bad in law. See Selby v. Robinson (2 Term Rep. 758); Constable v. Nicholson (14 C. B. N. Š. 230; 32 L. J. 240, C. P.), where other authorities are given. Many sound reasons are given in the authorities for this conclusion. It is only necessary to advert to some of those given in Gateward's case, because they may be applicable to another view of the present case. It was not a case in which the inhabitants of a certain village generally claimed a profit à prendre, but the plea alleged that, by custom, all persons inhabiting any ancient messuage should, by virtue of their inhabitancy, have a certain right of common. was adjudged by all of the justices that such MAG. CAS.-VOL. XI.

It

[Ex. Div.

custom was against law for several reasons. Among others: Secondly, what estate shall he have, who is inhabitant only, in the common, when it appears he hath no estate or interest in the house, but a mere habitation or dwelling; and, thirdly, such common will be transitory, and altogether uncertain, for it will follow the person, and for no certain time or estate, but only during his inhabitancy, and such manner of interest the law will not suffer, for custom ought to extend to that which hath certainty and continuance; fourthly, it would be against the nature and quality of a common, for every common may be suspended or extinguished; but such a common will be so incident to the person that no person can extinguish it, but as soon as he that releases and removes, the new inhabitants shall have it." It might be added also in relation to such a right as is claimed in the present case, namely, to be provided with fuel from the common, that mere inhabitancy is capable of an increase, almost indefinite, 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 custom. There cannot, therefore, be such a custom. And for the same reasons and for other reasons there cannot be a prescription, and there could not be a valid grant to SO fluctuating a body and a body so 'incapable of succession, in any reasonable sense of the word, so as to confer a right upon each succeeding inhabitant. The judgment in Constable v. Nicholson (32 L. J. C. P. 240), is correctly given in the head-note, except in the use by some mistake of the word "easement" for "right." It is as follows: "The right of the inhabitants of a township to take stones from the land of another for the purpose of repairing the highways is a profit à prendre, and cannot therefore be claimed by custom. Neither can it be claimed by prescription, as inhabitants are incapable of taking by that description "such an easement (it ought to be "such a right") "unless under a grant which incorporates them." The following are the words of Willes, J., in his judgment as regards the prescription or supposed grant, after disposing of the question of custom: "The prescriptive right is not claimed for a corporation, or persons taking by succession, but only for a fluctuating body of inhabitants. The prescription pleaded is a grant to that body, but not so as to have the effect of incorporating them. It is clear that such a right cannot exist." See also the decision of the Master of the Rolls to the same effect in the current number of the Law Reports: (Chilton v. The Corporation of London, L. Rep. 7 Ch. 735.) The claim then can only be supported as resting upon a supposed grant by the Crown to the inhabitants of the right in question, as such a grant alone would have the effect of incorporating them; and the argument addressed to us was upon the propriety and indeed necessity of presuming such a grant from the user set out in the case. But there is a difference between a corporate body, and the persons who for the time being compose it, and the members for the time in their own individual right take nothing by the grant to the corporation. 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

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