on the west cannot be considered as appurtenant to it. The codicil contains a specific devise of the manufactory on the west side; then follows a devise of several messuages, together with the stables, &c., and all other "appurtenances to the said messuages," not to the said manufactory, belonging. This is not a question of parcel or no parcel, but one of construction. The Court then called upon W. H. Terrell and Quain, to support the rule.-By the codicil the testator intended to pass the manufactory in the occupation of the defendant and Abington, and the words "on the west side of High Street" are a falsa demonstratio. The question is not one of mere construction, but extrinsic circumstances must be regarded in order to ascertain what is comprehended in the terms of the description: Goodtitle d. Radford v. Southern (a). At the time the codicil was made, and for many years before the testator's death, the two buildings had been used as one manufactory. That on the east could not be used separately, without alteration, and it was essential for the commodious enjoyment of that on the west. The word "appurtenances" is sufficient to pass the building on the east side. Under a gift of "the appurtenances" things will pass though not strictly appurtenant. In Boocher v. Samford (b) there was a devise of "a tenement, with the appurtenances, in which H. B. dwelleth, in Ebley," and that was held to pass lands not in Ebley, which for sixty years had been used with the tenement, and were in the occupation of H. B. Again, in Ongley v. Chambers (c), under a devise of the rectory or parsonage of M., with the messuages, lands, &c., thereunto belonging, it was held that lands passed which had been acquired by 1865. SMITH v. RIDGWAY. (a) 1 M. & Sel. 299. (b) Cro. Eliz. 113. (a) 1 Bing. 483. 1865. SMITH V. RIDGWAY. the owners of the rectory between the fifth year of James the First and 1632, and had always afterwards been occupied with the rectory. The rule of law is that such a construction must be adopted as will give effect to the whole description: Griffiths v. Penson (a). The true principles are enunciated by Erle, J., in Webber v. Stanley (b), who said :—" Where there is property in respect of which some of the facts of description are true and some not, there the Court must inquire whether the part of the description which applies to the property is a complete definition of a subject of devise, so that the misdescribing part may be justly regarded as a mistake and rejected as a false demonstration." Here the description of the property is complete, and ought not to be restrained by words of locality. The intention of the testator was specifically to devise by the codicil the buildings which he had, by the will, devised to trustees in general terms.-They also submitted that Abington ought to have been joined as a coplaintiff, but the plaintiffs' counsel having stated that the point was not raised at the trial, and the case of Budeley v. Vigurs (c) having been referred to, the point was not argued. Cur. adv. vult. POLLOCK, C. B., now said.-The question in this case arose on the construction of a will. The testator had a manufactory on the west side, and another on the east side of a street. They were distinct manufactories, and capable of being occupied separately, but for many years they had both been occupied by the same tenants, who had suffered the manufactory on the east side to go to decay, so that it could not be used as a separate manufactory with(a) 9 Jur. N. S. 385. (b) 16 C. B. N. S. 698. 752. (c) 4 E. & B. 71. MICHAELMAS TERM, 29 VICT. It out repairing it, and constructing a new chimney. appeared that the manufactory on the east side was of about half the value of the manufactory on the west side. The testator, by his will, devised to the plaintiffs and one Abington all his messuages, lands and real estate whatsoever and wheresoever, in trust to sell the same, and by a codicil he devised to Abington and one Wedgwood the manufactory and land on the west side, and also certain messuages, together with the stables, warehouses, &c., and "all other appurtenances to the said messuages or tenements, lands and hereditaments belonging or appertaining." Now, there was no necessary connection between the two manufactories, nor is the case like that of Ongley v. Chambers (a) where it was held that under a devise of a rectory lands passed which were purchased previously to the year 1632, and had been ever since occupied with the rectory. We are of opinion that this is not a question of parcel or no parcel, but of the construction of the will; and that by the codicil the manufactory on the west side of the street alone passed to the devisces. We think that the manufactory on the east side cannot be considered as "appurtenant" to that on the west. The verdict for the plaintiffs will therefore stand. Rule discharged. 1865. SMITH v. RIDGWAY. (a) 1 Bing. 483. 1865. Nov. 22. Where a vessel is insured" at and from" a foreign port at which she arrive, the risk attaches when she first arrives HOUGHTON and Others v. THE EMPIRE MARINE INSURANCE THE declaration stated that by a policy bearing date the 1st day of July, A. D. 1864, and made and executed by the defendants with the plaintiffs, after reciting that it had been is expected to proposed to the defendants by the plaintiffs, as well in their own name as for and in the name or names of all and every other person and persons to whom the subject-matter of that policy did, should, or might appertain, in part or in all, at that port in such a sea worthy condi tion as to be enabled to lie to make with the defendants the insurance thereinafter there in safety. mentioned and described, in consideration of the persons effecting that policy promising to pay to the defendants the sum of 607. as a premium at and after the rate of 40s. per cent. for such insurance, the defendants took upon themselves the burthen of such insurance to the amount of 30007., and promised and agreed with the plaintiffs, the insured, in all respects truly to perform and fulfil the contract contained in the said policy. And it was in the said policy agreed and declared, among other things, that the said insurance should be and was an insurance (lost or not lost) at and from Havana to Greenock, upon the body, tackle, apparel, &c., of and in the ship or vessel called the "Urgent," and upon the freight of the said ship or vessel, including all risk of craft and boats to or from the said ship or vessel. And it was also agreed and declared that the subject-matter of the said policy as between the plaintiffs, the insured, and the defendants, so far as concerned the said policy should be and was as follows, that is to say,upon ship valued at 30007.; and the defendants promised and agreed that the said insurance should commence upon the said ship or vessel at and from as above, and should continue until she had moored at anchor in good safety at her above-mentioned place of destination, and for twentyfour hours after such mooring. Upon the freight, from the time when the goods and merchandize should be laden on board the said ship or vessel as above, and until the said goods and merchandize be discharged and safely landed at as above. And touching the adventures and perils which the defendants were contented to bear and took upon themselves on the voyage so insured as aforesaid, they were of the seas, men of war, fire, enemies, &c., and of all other perils, losses and misfortunes that had or should come to the hurt, detriment, or damage of the aforesaid subject-matter of the said insurance or any part thereof. And it was further declared and agreed that the said ship should be and was warranted free from particular average below water, unless caused by injury to the stern or sternpost, or by fire, grounding or contact with some substance other than water; and that the ship and freight should be and were warranted free from average under 37. per cent., unless general, or the ship were stranded, or sunk, or burnt. And the plaintiffs, from the time of the said insurance, and from thence until and at the time of the loss and damage bereinafter mentioned, were interested in the said ship to the amount of all the monies by them insured thereon. And the said ship, when at Havana as aforesaid, and after the commencement of and during the continuance of the said risk, sustained injury by perils insured against, such injury being caused by grounding and contact with some substance other than water, within the true intent and meaning of the said policy in that behalf, and thereby sustained an average loss and damage exceeding 31. per cent., that is to say, to the amount of 400%.-The declaration then averred performance of all conditions, &c., necessary to entitle the plaintiffs to have the said loss and 1865. HOUGHTON v. EMPIRE MARINE INSURANCE CO. |