The judgment of the Court was now delivered by ALDERSON, B.-In this case we shall certify our opinion to the Vice-Chancellor Knight Bruce, that the two pieces of land, parcels of the Great Hill Ground, which contain 6A. 1R. 28 P. the one of them, and 6A. the other, passed to James Morrell senior, under the residuary clause of the will of his son, Mark Theophilus Morrell. The pieces of land in question had been originally part of the Wick freehold farm, but had been conveyed, by way of exchange, by Theophilus Wharton and Brian Wharton, the former owners, to the president and scholars of Magdalen College, Oxford, and had been demised by that college to the testator in 1837, by way of renewed lease for twentyone years. These pieces of land having been formerly part of Wick Farm, were again demised as part of it, on the 29th of September, 1838, by Brian Wharton, under whom the testator claimed, to a person of the name of William Eley for fourteen years, and, at the date of the will, they were held by him as part of Wick Farm. The other leasehold lands held under the college were those in the occupation of Thomas Burrows the younger. In this state of things, Mark Theophilus Morrell made his will. He left the moieties of his freehold farm called Wick, one to Charles Tawney and the other to the testator's brother, James Morrell, in the manner described in the will. Now, it was decided by the Vice-Chancellor Knight Bruce, in Hall v. Fisher, that the two pieces of land in question did not pass under this devise, on the ground that they were leasehold, and, though held at the date of the will as part of the Wick Farm, they were not freehold, and therefore they were not comprised under the term "freehold farm," although we may conjecture that the testator did mean them to pass, as he probably knew they were occupied with the Wick Farm, and perhaps thought that they were parcel of it. VOL. IV. R R EXCH. 1849. MORRELL V. FISHER. 1849. MORRELL v. FISHER. The question then is, whether these two pieces of land passed to Fisher and Westell, and their executors, under this devise," all my leasehold farm-house, homestead, lands, and tenements at Headington, containing about 170A., held under Magdalen College, Oxford, and now in the possession of Thomas Burrows, junior, as tenant to me." Burrows held the farm at Headington, but not the two pieces of land, and the number of acres of the leasehold, including those pieces of land, was not near 170 a. The same reason which induces us to conjecture that the testator meant the two pieces of land to pass to his brother and Tawney would lead us to believe that he did not intend that they should pass to Fisher and Westell. But this cannot affect our decision, as the question is not what the testator intended to have done, but what the words of the clause mean, after applying to it the established rules of construction. One of these rules is, "Falsa demonstratio non nocet:" another is, "Non accipi debent verba in demonstrationem falsam, quæ competunt in limitationem veram." The first rule means, that if there be an adequate and sufficient description, with convenient certainty of what was meant to pass, a subsequent erroneous addition will not vitiate it. The characteristic of cases within the rule is, that the description, so far as it is false, applies to no subject at all; and so far as it is true, applies to one only. The other rule means, that, if it stand doubtful upon the words whether they import a false reference or demonstration, or whether they be words of restraint that limit the generality of the former words, the law will never intend error or falsehood. If, therefore, there is some land wherein all the demonstrations are true, and some wherein part are true and part false, they shall be intended words of true limitation, to pass only those lands wherein the circumstances are true. Whether these maxims, or rather the first, has been correctly acted upon in some of the decided cases in which the Courts have professed, or intended so to do, need not now be inquired into. They certainly are acknowledged rules of construction. Is there, then, in the present case an adequate and sufficient description of the subject of the devise, so as to enable us to treat the description of the land being in the possession of Burrows as a false demonstration, and reject it according to the first rule? Now, if we read the language of the devise in its ordinary and obvious sense, it is a gift, first, of "all his leasehold farm-house, homestead, lands, and tenements at Headington, held under Magdalen College, and occupied by Burrows." There is no doubt that the farm-house passed, for it was "a leasehold, and in the occupation of Burrows;" and if there was one acre, and one only, of that character, and that was not in the possession of Burrows, that would have passed, and the description would have been rejected as inapplicable to any such. The will then professes to give all the testator's lands and tenements at Headington, leasehold under the college, containing about 170 acres, in the possession of Burrows. The description by acreage defines nothing, for it is inapplicable to any subject, and therefore that may be rejected, and then there is nothing to define any lands in particular. The second maxim then applies, and all the demonstrations here being true as to the rest of the land, exclusive of these two parcels, and part only being true as to these parcels, they do not pass. If there had been a devise expressly of 6 A. 1 R. 28 P., part of Great Hill Ground, and that piece had been stated to be in the occupation of Burrows, then the first maxim would have applied, and there would have been sufficient certainty, and the false description of their being in the possession of Burrows would have been rejected as inapplicable. But there is another way of reading this devise, as giving "all the farm-house, homestead, lands," &c., and it was contended that this was a sufficient description of the whole farm at Headington, held under the college, and then that all would pass, although 1849. MORRELL V. FISHER. 1849. MORRELL v. FISHER. all was not in Burrows' possession, but part only. In Worthesley v. Adams (a), the question was debated on the supposition that the farm at Brosby, described as being in the possession of Wilcox, was not in his possession at all, and so the farm would pass; the latter description being altogether false and therefore rejected. But here there is a farm at Headington in the possession of Burrows; and that description, being true with respect to the farm, cannot be rejected. We are, therefore, of opinion that no farm-house or land passed, except that in which all the three circumstances concurred; that is to say, being lands in Headington, they must be leasehold of the college, and they must be in possession of Burrows. These lands are not within the latter of these three descriptions, and therefore they do not pass by the devise; consequently, they pass by the residuary clause, and we shall certify accordingly that the lands passed under it (b). A certificate in conformity with the above opinion was afterwards sent to Vice-Chancellor Knight Bruce. (a) Plowd. 107. (6) No allusion was made to the 1 Vict. c. 26, s. 26. Dec. 5. In an information under the 2 & 3 Will. 4, c. 120, s. 101, other reasonable THE ATTORNEY-GENERAL v. SHILLIBEER. IN this case Lush, in last term, had obtained a rule calling on the Attorney-General to shew cause why the bill of costs of the Crown in this cause should not be referred back to her Majesty's Remembrancer, to be further reviewed by him. charges and expenses," the Crown, in case of success, is entitled to the ordinary costs as between subject and subject, although the Crown solicitor, who conducts the prosecution, receives a certain fixed yearly salary from the Crown for his services. In a count of an information by the Excise, for twenty penalties, the Crown recovered a verdict for one penalty only -Held, that the Crown was only entitled to the costs of the witnesses necessary to prove the single penalty. In another count, the defendant was charged with the wilful omission of an entry, and the Crown had a verdict :-Held, that the Crown was entitled to the costs of all such witnesses as were reasonably necessary to prove that the omission was wilful. An information at the suit of the Crown had been filed against the defendant, a licensed postmaster and undertaker, for penalties under the 2 & 3 Will. 4, c. 120, for rendering false weekly accounts of duties payable in respect of horses let to hire by him. The second count of the information claimed twenty penalties of 201. each, under the 74th sect. of the above Act, and the sixth count one penalty of 50l., under the 81st section. At the trial, before Pollock, C. B., evidence was adduced on the part of the Crown in support of the second count, but upon the proof of one of the cases of omission to make the proper entry in one of the weekly accounts, the defendant admitted that the other nineteen were equally incorrect, but contended that the entries had been so made by mistake. The jury found a verdict for the Crown for one penalty of 201. upon the second count, and for the penalty of 50%. upon the sixth count. At the taxation of the bill of costs of the solicitor of Inland Revenue, by the Queen's Remembrancer, he allowed the costs as the regular costs of a solicitor as between party and party, and he also allowed the costs of other witnesses besides those who were called to depose to the penalties obtained in the second and sixth counts. To this taxation two objections were raised by the defendant: first, that, as the Solicitor of Inland Revenue received a regular fixed yearly salary from the Crown for his services, he was not entitled to recover for any charges beyond mere payments and expenses out of pocket; and secondly, that the Crown was not entitled to the costs of more witnesses than of such as were called to prove one of the penalties in the second count, and in addition to that in the sixth count. The defendant on a subsequent day obtained an order of Alderson, B., "that the Queen's Remembrancer do tax the costs of all the witnesses of the Crown, whose evidence at all applies to those parts of the second and sixth counts on which the Crown has succeeded, and no other;" and the other question was referred to the Court. 1849. ATT.-GEN. v. SHILLIBEER. |