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![handle is hein.slavery/ssactsengr0256 and id is 1 raw text is: clearly of opinion that Lord Tenterden's act does not give the claimant the right he
claims.
CRESSWELL, J. I am entirely of the same opinion. It seems to be imagined by
Mr. Smith, that, because you cannot defeat a claim which may be lawfully made at
the common law, by custom, prescription, or grant, to any right of common or other
profit a prendre, by shewing only that such right or profit was first taken or enjoyed
at any time prior to the period of thirty years, therefore you cannot defeat it at all. I
do not find that stated in Lord Tenterden's act. There is no attempt in this case to
defeat the claim by shewing only its origin, but by shewing that it never could have
had a legal origin.
[71] CROWDER, J. I incline to think with the Lord Chief Justice that the pro-
vision in the 9 & 10 W. 3, c. 36, s. 10, is such that Lord Tenterden's act could not
apply to this case. But I do not wish to be understood as deciding the question upon
that view; though it seems to me that it would be a pretty strong construction of
the latter statute to hold it to operate a repeal of the former. But it appears to me
that what was offered in evidence here was, not only for the purpose of shewing the
commencement of the enjoyment of the right claimed, but for the purpose of shewing
that, and also shewing that the tenement as appurtenant to which the right was
claimed only had existence as it now exists forty years ago. I think the evidence
offered was sufficient to defeat the right, and consequently that Lord Tenterden's act
does not apply.
WILLES, J. I am of the same opinion. \What was done here was in fact this,-
it was shewn that the enjoyment commenced in 1810, so that it could not give rise
to'the right claimed, and that it was impossible that any legal grant of the right could
have existed.
Judgment for the objector.
[72] HILL V. MOUNT. May 6, 1856.
[S. C. 25 L. J. C. P. 190; 4 W. R. 563.1
By an agreement between A. and B., it was agreed that A. should do all acts
necessary except the advance of money) for the purpose of procuring and perfecting
certain letters-patent, and should immediately after the same were procured execute
an assignment of one third share therein to B. : and B. agreed to pay all fees and
disbursements that might be necessary for procuring the letters-patent, inrolling
the specification, and otherwise in perfecting the same.-By the 16 & 17 Vict. c. 5,
s. 2, it is enacted that all letters-patent shall be made subject to the condition that
the same shall be void, and the privileges thereby granted shall cease and determine,
at the end of three years and seven years respectively, unless there be paid before
the expiration of the said three and seven years respectively two several sums of
501. and 1001. as therein mentioned :-Held, that the execution of an assignment
by A. was the whole consideration for the undertaking of B. to pay the sums men-
tioned in that section; and, consequently, a condition precedent to his right to
sue B. for the non-payment thereof.
The first count of the declaration stated, that a certain agreement in writing was
made and entered into by and between the plaintiff and defendant, which agreement
was in the words and figures following, that is to say : Memorandum of agreement
made the 8th of October, 1852, between Christopher Hill, of New Swindon, in the
county of Wilts, railway superintendent, of the one part, and Francis William Mount,
of No. 10 Clements Lane, Lombard Street, in the city of London, gentleman, of the
other part: Whereas the said Christopher Hill has lately invented certain improve-
ments in the manufacturing of lubricating matters, and has applied to the said Francis
William Mount to assist him, as well in securing the benefit of the said invention by
means of letters-patent, or grants in the nature thereof, for Great Britain and foreign
kingdoms and republics, as in making the said invention known, and in bringing the
same to a profitable result, which he the said Francis William Mount hath consented
and agreed to do upon and subject to the terms and stipulations hereinafter con-
tained : It is, therefore, agreed and declared between the parties hereto in manner
following, that is to say, that the said Christopher Hill shall and will do all necessary
1291
18 C. B. 71.
HILL V. M OUNT](ViewImageLocal?handle=hein.slavery/ssactsengr0256&div=1&collection=&method=preview&ext=.png&size=3)