1865.

FINNEY

v.

FORWARD.

in which his adversary's case is to be established, or to
evidence which relates exclusively to his case; but where
it appears that the facts relate to the case of the party
seeking the discovery, he is entitled to it, although they
also relate to his adversary's case. [Martin, B.-What is
there here which relates to both cases?] The defendants
seek to discover under what circumstances the plaintiff
parted with the possession of the cotton. [Martin, B.—
Then they should admit the plaintiff's original title to it.
The defendants do not connect the plaintiff in any way
with the persons from whom they received the goods.
Channell, B.-The defendants are in effect seeking to
interrogate the plaintiff as to his title.] A plaintiff in
ejectment may be interrogated as to his title. [Martin, B.
-No doubt claimants in ejectment have been compelled to
answer interrogatories as to the nature of the title on which
they rely, but I have always considered that case an
anomaly.] In Sloate v. Rew (a) and Pearson v. Turner (b)
the Court of Common Pleas considered that where a per-
son had long been in undisputed possession of the premises
sought to be recovered, it was but reasonable that he
should be allowed to call for some information as to the
title of the claimant. Assuming that the plaintiff is a
stranger, the defendants have had possession of the cotton
for several months, and what difference in principle is
there between that case and the case of a person who has
been for several years in possession of lands which are
claimed by a perfect stranger? In Flitcroft v. Fletcher (c)
Alderson, B., said:-"The Court has a general power to
require a person who seeks to disturb the possession of
another to say by what right he does so." [Pollock, C. B.
We do not think it necessary to extend the rule in eject-
(a) 14 C. B. N. S. 209.
(b) 16 C. B. N. S. 157.
(c) 11 Exch. 543.

ment to other actions.

Pigott, B.-The ground of my decision is that the affidavit is insufficient. There is nothing in it which shews that interrogatories ought to be delivered.]

PER CURIAM (a).-For the reasons already stated there will be no rule.

Rule refused.

(a) Pollock, C. B., Murtin, B., Channell, B., and Pigott, B.

SMITH and GODDARD v. RIDGWAY.

Nov. 23, 25.

owner in fee factory on the

of a manu

THE first count of the declaration stated that Joseph A testator, Mayer, since deceased, being seised in fee of and in a certain manufactory, land, buildings and premises, and also of a certain other manufactory, land, buildings and premises, demised the same to Leonard Abington and the defendant as tenants, to wit from year to year, at the rent

of 101. per week, payable weekly by the said L. Abington and the defendant to the said J. Mayer for the same; and that the said L. Abington and the defendant thereupon became, and were, and continued, tenants of the said several manufactories, lands, buildings and premises, upon the terms and at the rent aforesaid; and J. Mayer after wards and during the said tenancy, to wit, on, &c., died,

east side of

a

street, and manufactory

also of a

on the west

side of the

same street,

by his will

devised all
his messuages,
lands, tene-
ments here-

ditaments, whatsoever

and real estate

and whereso

ever, to trus

tees to sell

the same.

By a codicil, after devising

certain specified freehold and copyhold lands, he devised to A. and W. his manufactory on the west side of the street in the occupation of R. and A., and also other specified messuages, together with the stables, warehouses, outbuildings and all other "appurtenances to the said messuages or tenements, lands and hereditaments belonging or appertaining. The testator, many years before his death, had demised both manufactories to R. and A. at an undivided rent, and they had always used them as one manufactory. That on the east side, which was about half the value of that on the west, could only be used as a separate manufactory if certain reparations were made.-Held, that the manufactory on the east side did notas under the codicil as appurtenant to that on the west

1865.

SMITH

t.

RIDGWAY.

having by his last will and testament devised the said first mentioned manufactory, land, buildings and premises to the plaintiffs and the said L. Abington, so being such tenants as aforesaid, and their heirs, in fee; and the defendant and the said L. Abington then, under and by virtue of the said demise and the said will, and not otherwise, continued tenants to the plaintiffs in respect of, that is to say, two undivided third parts of the first mentioned manufactory, land, buildings and premises, and so continued until and at the time of the accruing of the rent hereinafter mentioned, to wit, on the 1st June, 1865, when a large sum of money, to wit, the sum of 2667. 13s. 4d., became and was due and owing to the plaintiffs for and in respect of, to wit, two-thirds of such portion of the rent aforesaid as ought to be apportioned to the plaintiffs as to the said first mentioned manufactory, land, buildings and premises for, to wit, 102 weeks, which had elapsed since the death of the said J. Mayer, and before this suit, and whilst the plaintiffs were so seised as aforesaid. — Averments of performance of all conditions precedent, &c., to entitle the plaintiffs to maintain the action.-Breach: nonpayment of the said sum so due as aforesaid.

Plea (inter alia).—That the said J. Mayer did not devise the said manufactory, land, building or premises to the plaintiffs and the said L. Abington as in the declaration mentioned.

At the trial, before Bramwell, B., at the last Liverpool Summer Assizes, it appeared the plaintiffs sought to recover, as devisees under the will of Joseph Mayer, the sum of 2267. 13s. 4d., being an apportionment of the rent of an earthenware manufactory on the east side of High Street, Henley, in the county of Stafford. Joseph Mayer was the owner in fee of this manufactory on the east side of High Street, and also of another manufactory on the west side

MICHAELMAS TERM, 29 VICT.

of High Street. In the year 1848, J. Mayer demised both manufactories to the defendant Ridgway and Leonard Abington, as tenants from year to year, at an undivided rent of 5201, payable weekly.

J. Mayer, by his will, dated the 23rd April, 1860, devised all his "messuages, lands, tenements, hereditaments and real estate whatsoever and wheresoever, and of what nature or tenure soever" unto Leonard Abington, Paul Smith and Thomas Goddard, upon trust to sell the same.

By a codicil, dated the 26th June, 1860, J. Mayer devised as follows:-"I give and devise all my freehold and copyhold messuages, lands, tenements and hereditaments called the Great Eaves Farm, in the occupation of Abner Wedgwood, the Little Eaves Farm and the Hob Hill Farm, in the occupation of William Hodgkiss, the Birch Gate Farm in the occupation of Broadhurst: All my estates, messuages, lands and hereditaments situate at or near Eastwood, in the occupation of Samuel Keeling, William Hambledon and others: my messuages, cottages, manufactory and land on the west side of High Street, in Henley aforesaid, in the occupation of Ridgway and Abington, and others: my messuage on the east side of High Street, in Henley aforesaid, in the occupation of Mrs. Ridgway, my messuage on the east side of Henley aforesaid, in the occupation of Mrs. Adams, and my five messuages or cottages at the corner of Broom Street, Henley, aforesaid, in the occupation of William Chesters and others, all which said messuages, lands, hereditaments and premises are situate in the parish of Stoke-upon-Trent: Together with the stables, warehouses, outbuildings, yards, gardens and all other rights, members and appurtenances to the said messuages or tenements, lands and hereditaments belonging or appertaining, unto Leonard Abington and Abner

1865.

SMITH

v.

RIDGWAY.

1865.

SMITH

v.

RIDGWAY.

Wedgwood, of the parish of Stoke-upon-Trent, absolutely,

as tenants in common.”

From the time of the demise until the testator's death, in June, 1860, the defendant, Ridgway, and Abington occupied, as one manufactory, the buildings on the east and west side of High Street. That on the east side had been suffered to go to decay, and could only be used as a separate manufactory by repairing a slip-house and building a new chimney. Its value was about half of that

on the west.

It was submitted, on behalf of the defendants, that the plaintiffs had no title, inasmuch as both manufactories vested in the devisees under the codicil. The only question left to the jury was as to the amount of the rent, and they found a verdict for the plaintiffs for the sum claimed, and leave was reserved to the defendant to move to enter a nonsuit.

Quain, in the present Term, obtained a rule nisi accordingly, on the ground that, by the will and codicil of the testator, the property did not vest in the plaintiffs, and they were not entitled to maintain the action; against which

Milward and Baylis shewed cause (Nov. 23) (a).—The manufactory on the east side of the street, in respect of which the rent is claimed, passed under the general devise in the will to the plaintiffs; and did not pass to the devisees under the codicil, as "belonging or appertaining" to the manufactory on the west side. Although the two buildings had been used as one manufactory, they could, with a slight alteration, be used as separate manufactories. That on the east side being about one half the value of that (a) Before Pollock, C. R., Bramwell, B., Channell, B., and Pigott, B.