1862. BLACKETT V. BRADLEY. Smart v. Morton (a) were decided upon the construction of clauses in a deed, and Roberts v. Haines (b) on the construction of an Enclosure Act. As to Hilton v. Earl Granville (c), it is so far distinguishable from this case that there, previous to the enclosure, the locus in quo was part of the old enclosures of the manor; here the locus in quo could not have been built upon but the cases decided since are at variance with that case. In Humphries v. Brogden (d) it was not contended that, if the deed bore the construction contended for by the defendants, who were lessees of the Bishop of Durham, it would be valid in law. : When Rowbotham v. Wilson (e) was before the Exchequer Chamber the Judges differed in opinion, and the judgment was only affirmed by a majority. [Blackburn J. I do not know that they differed on this point.] The judgment of the House of Lords in that case proceeds solely on the question of surface damage. [Blackburn J. The Court understood the claim to be to work without leaving support. Cockburn C. J. The judgment in Hilton v. Earl Granville (c), p. 726, refers to the cases on the validity of customs, and mainly proceeded on the ground that such a custom as there pleaded was unreasonable. Wightman J. That judgment may be supported on the ground that, by the custom, the mine must have been intended to be worked as mines were generally worked, that is in a reasonable manner.] The decision in Harris v. Ryding (f) proceeded on a ground which would have supported Hilton v. Earl Granville (c). (a) 5 E. & B. 30. (c) 5 Q. B. 701. [Black (b) 6 E. & B. 643. (e) 6 E. & B. 593; affirmed in Exch. Ch. 8 E. & B. 123; and in D. P. burn J. It may be that though the parties may legally have made such a compact it would not be reasonable to presume that they had done so. Cockburn C. J. Where a reservation in a grant is rejected by the Court, it is rejected, not because it is unreasonable, but because it is inconsistent with the grant.] In The Marquis of Salisbury v. Gladstone, in error (a), a custom in a manor that the copyholders of inheritance might, without licence from the lord, break the surface and dig and get clay without limit from their copyhold tenements for the purpose of making bricks to be sold by them off the manor, was held good in law. The Enclosure Act does not lessen the rights which the lord had and it reserves those rights, though it may be that it could not have created them. The section which provides for compensation shews that it is to be for damage in working the minerals, and not for damage in the superficial working. As to the 4th and 5th pleas, assuming that the prescription, as averred in the 3d plea, is good, the only question is whether those pleas are good under stat. 2 & 3 W. 4. c. 71., for shortening the period of prescription. The words "of another" are not in the second section. [Cockburn C. J. The custom is pleaded in alieno solo: the party against whom it is set up could only resist the working when in his soil. It is very clear that Lord Tenterden's Act does not apply except to the case of working in the land of a person who was in a position to resist it and submitted to it. Wightman J. If the custom is bad it cannot be better when pleaded under Lord Tenterden's Act.] The pleas in substance allege that the lord exercised his right under the locus in quo, -the custom set up is to work all the mines within the (a) 6 H. & N. 123, affirmed in D. P. 8 Jur. N. S. 625. 1862. BLACKETT V. BRADLEY. 1862. BLACKETT V. BRADLEY. manor, whereas the locus in quo is the surface over part of it. [Blackburn J. The custom is not pleaded to work in that particular part of the manor in which the plaintiff owns the surface.] Is it not included? [Wightman J. That should be averred with certainty in order to bring the case within the Act.] Manisty, in reply. Cur. adv. vult. COCKBURN C. J. (Jan. 30th) delivered the judgment of the Court. In this case, which was argued before my brothers Wightman and Blackburn and myself, on the argument on the demurrer to the plea it was admitted that, if Hilton v. Lord Granville (a) was to be considered as law, the present case was within the decision in that case, and, so far as this Court was concerned, must be governed by it. But it was insisted, on the part of the defendants, that the case of Hilton v. Lord Granville had been so much impugned and shaken by subsequent cases that it must be considered as virtually overruled; at all events sufficiently so to call upon the Court to review the decision in that case, and, upon the arguments urged against its validity, now to overrule it. There can be no doubt that to some extent the authority of Hilton v. Lord Granville (a) has been shaken, inasmuch as a position assumed in the reasoning of the Court as one of the grounds of its decision has since been distinctly overruled in the House of Lords in the case of Rowbotham v. Wilson (b), in which the question presented itself for adjudication. And it cannot be denied (a) 5 Q. B. 701. (b) 8 H. L. 348. And, that the decision itself has not met with the universal The question arising on the 4th and 5th pleas was disposed of during the argument. We then intimated our opinion that those pleas were bad, inasmuch as they did not shew any acts done on the plaintiff's land; and acts done on the land of another, though done as of right for twenty or forty years, could not in our judgment affect the plaintiff's right. On these pleas also, therefore, there will be judgment for the plaintiff. Judgment for the plaintiff. (a) 5 Q. B. 701. 1862. BLACKETT v. BRADLEY. 1862. Friday, 5 & 6 Vict. c. 97. Pleading general issue. Non infregit conventionem. Royal Exchange Assurance Association. CARR and another against The Corporation of the 1. Stat. 5 & 6 Vict. c. 97. s. 3., which repeals so much of any clause in any Act commonly called public local and personal, or local and personal, or in any Act of a local and personal nature, whereby parties are entitled to plead the general issue only and to give any special matter in evidence, is by its preamble confined to actions "for any matter done in pursuance of or under the authority of the said Acts;" and therefore does not repeal stat. 11 G. 1. c. 30. s. 43., by which The Royal Exchange Assurance, and The London Assurance Corporations are enabled, in all 11 G. 1. c. 30. actions of covenant against them upon any policy, to plead generally that s. 43. they have not broken the covenants in such policy &c. 2. Quære, whether stat. 11 G. 1. c. 30. s. 43. is an Act of a local and personal nature, within stat. 5 & 6 Vict. c. 97? THE first count of the declaration was for breach of covenants in the usual form, upon a policy of insurance, under the common seal of the defendants, dated the 5th December, 1857, upon the ship Dos Hermanos and a cargo of guano on a voyage from Monte Video and any ports in the river Plate, to any ports in the United Kingdom, alleging a constructive total loss by perils insured against. There were also the common money counts. The defendants pleaded, as to the first count, that they had not broken their covenants, and as to the residue of the declaration, payment into Court of 2621. 10s. In this Term (Jan. 23d), Dudley Campbell moved for a rule calling upon the defendants to shew cause why the plea to the first count of the declaration should not be struck out or amended. -Stat. 11 G. 1. c. 30., which, by sect. 23, gives the |
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