A cause and all matters of difference were referred to the arbitration of three persons, the award of the three or *of any two of them to be final. The award purported on the face of it [*487] to be made by all three, but was executed by two only of the arbitrators, the third having refused to sign it when requested so to do. This award was held to be good as the award of the two, for the statement that the third party had concurred, might, it was observed, be treated as mere surplusage, the substance of the averment being, that two of the arbitrators had made the award.1

As a further instance of the application of the above rule, we may observe, that, if a valid contract should be made between A. and B., that A. should perform a journey on B.'s lawful business, and another and distinct contract should subsequently be entered into on the same day, that on the journey A. should commit a crime, the latter contract would of course be void, but it would not dissolve the prior agreement, nor exonerate the parties from their liabilities under it. To such a case, then, it has been said, that the maxim would apply, utile per inutile non vitiatur.2

The above maxim, however, applies peculiarly to pleading; in which it is a rule, that matter immaterial cannot operate to make a pleading double, and that mere surplusage does not vitiate a plea, and may be rejected; and, although, if a pleading be inconsistent with itself, or repugnant, this is ground for demurrer, yet, where the second allegation, which creates the repugnancy, is merely superfluous and redundant, so that it may be rejected from the pleading without materially altering the general sense and effect, it shall in that case be rejected, at least if laid under a videlicet, and shall [*488]

of this rule to an order of removal, Reg. v. Rotherham, 3 Q. B. 776, 782; E. C. L. R. 43; Reg. v. Silkstone, 2 Q. B. 522; E. C. L. R. 42; to an order under 2 & 3 Vict. c. 85, s. 1, Reg. v. Goodall, 2 Dowl. P. C., N. S. 382; Reg. v. Oxley, 6 Q. B. 256; E. C. L. R. 51; to a conviction, Chaney v. Payne, 1 Q. B. 722; E. C. L. R. 41; to a notice of an objection under 6 & 7 Vict. c. 18, Allen, app., House, resp., 8 Scott, N. R. 987; cited, Argument, 2 C. B. 9; E. C. L. R. 52; to an information, Attorney-General v. Clerc, 12 M. & W. 640.(*)

1 White v. Sharp, 12 M. & W. 712. (*) See, also, per Alderson, B., Wynne v. Edwards, 12 M. & W. 712;(*) Harlow v. Read, 1 C. B. 733; E. C. L. R. 50. 2 See 18 Johns. R. (U. S.) 93, 94.

3 Co. Litt. 303, b; Steph. Pl. 5th ed. 468; Id. 294 et seq. See Wright v. Watts, 3 Q. B. 89; E. C. L. R. 43; Williams v. Jarman, 13 M. & W. 128. (*) Ring v. Roxburgh, 2 Cr. & J. 418 (cited, per Rolfe, B., Duke v. Forbes, Exch. 11 Jur. 954), is an instance of the rejection of surplusage in a declaration.

not vitiate the pleading.' But a videlicet cannot make that immaterial which is in its nature material, though the omission of it may render that material which would otherwise not be so. For instance, a videlicet could not make the sum in a bill of exchange immaterial, so as to cure what would otherwise be a variance. So, although, in general, in pleading, the time, when laid under a videlicet, need not be strictly proved, yet there are instances in which time happens to form a material point in the merits of the case; and in which, if a traverse be taken, the time laid is of the substance of the issue, and must be strictly proved. In these instances, the pleader must state the time truly at the peril of failure, as for a variance: and here the insertion of a videlicet will give no help. In like manner, with respect to quantity and value, the pleader may in general allege any quantity or value that he pleases (at least if it be laid under a videlicet), without risk from the variance in the event of a different amount being proved; but there are instances in which it forms part of the substance of the issue, and in these it must be strictly proved as laid.4

*Although, then, it is a general rule in pleading, that a

[*489] plea being entire is not divisible, and being bad in part is bad

for the whole; and, although this rule, when correctly applied, is logical and just, yet it has no application where the objection is merely on account of surplusage; for, if the plea states sufficient matter in bar, even if it states something afterwards which is inac

1 Steph. Pl. 5th ed. 415; 2 Wms. Saund. 291 (1), 316 (14); Wyatt v. Ayland, 1 Salk. 324; Smith v. Nicolls, 5 Bing. N. C. 201, 218; E. C. L. R. 35. As to the nature and use of a videlicet, see Hobart, R. 171, 172.

2 Per Patteson, J., Cooper v. Blick, 2 Q. B. 918; E. C. L. R. 42; per Coltman, J., 6 Scott, N. R. 892; per Tindal, C. J., 1 C. B. 164; E. C. L. R. 50; Drew v. Avery, 13 M. & W. 402.(*)

3 Steph. Pl. 5th ed. 329, and cases there cited. See Parkinson v. Whitehead, 2 Scott, N. R. 620; Harrison v. Heathorn, 6 Scott, N. R. 121. "Of all things the date of a record is most material," per Tindal, C. J., 1 C. B. 164; E. C. L. R. 50. 4 Steph. Pl. 5th ed. 336, 337; Nightingale v. Wilcoxon, 10 B. & C. 215; E. C. L. R. 21; Rivers v. Griffiths, 5 B. & Ald. 630; E. C. L. R. 7; Rubery v. Stevens, 4 B. & Ad. 241; E. C. L. R. 24; Couzens v. Paddon, 5 Tyrw. 547; Falcon v. Benn, 2 Q. B. 314; E. C. L. R. 42; Marks v. Lahee, 3 Bing. N. C. 408; E. C. L. R. 32. As to entering a remittitur where too much is claimed by the declaration, see Duppa v. Mayo, 1 Wms. Saunds. 6th ed. 282, and notes thereto; Simmons v. Wood, 5 Q. B. 170; E. C. L. R. 48.

5 Earl of Manchester v. Vale, 1 Wms. Saunds. 6th ed. 27. It is a universal rule, that if a plea is pleaded to both counts, and is bad as to one, it is bad as to both, see per Lord Denman, C. J., Hartley v. Manton, 5 Q. B. 265; E. C. L. R. 48.

curate, yet that will not vitiate the whole: utile per inutile non vitiatur.1

But, although surplusage, including in that term unnecessary matter of whatever description, is not a subject for demurrer, yet, when any flagrant fault of this kind occurs, and is brought to the notice of the Court, it is visited with the censure of the judges; and they will, moreover, in some cases, refer the pleadings to their officer to strike out the redundant matter, and in others, where the redundancy is manifest, they will themselves direct such matter to be struck out, and the party offending will usually have to pay the costs of the application.

In connexion with this subject, we may further observe, that, although the issue to be tried by the jury ought to be material, single, and specific, yet a party does not make an issue upon the substantial matter bad, merely because he includes in it "something of total surplusage and immateriality.”3

Lastly, with respect to an indictment, it is laid down, that *although an averment, which is altogether superfluous, may [*490]

here be rejected as surplusage; yet, if an averment be part of the description of the offence, or be embodied by reference in such description, it cannot be so rejected, and its introduction will be fatal."

FALSA DEMONSTRATIO NON NOCET.

(6 T. R. 676.)

Mere false description does not make an instrument inoperative.

Falsa demonstratio may be defined to be an erroneous description of a person or thing in a written instrument; and the above rule respecting it may be thus stated and qualified: as soon as there is an adequate and sufficient definition, with convenient certainty, of what is intended to pass by the particular instrument, any subsequent erroneous addition will not vitiate it: quicquid demonstratæ rei additur satis demonstratæ frustra est." "I have always understood," 1 See per Kent, C. J., Douglass v. Satterlee, 11 Johns. R. (U. S.) 19; per Buller, J., Duffield v. Scott, 3 T. R. 376, 377.

2 See Steph. Pl., 5th ed. 467, 468, 469.

3 Per Tindal, C. J., Palmer v. Gooden, 8 M. & W. 894.(*)

4 Dickins. Quart. Sess., 5th ed., by Mr. Serjt. Talfourd, 175.

5 See Bell. Dict. and Dig. of Scotch Law, 420.

Per Parke, B., Llewellyn v. Earl of Jersey, 11 M. & W. 189; (*) Com. Dig. "Fait,"

(E. 4.)

7 D. 33, 4, 1, 8 8.

observes Lord Kenyon, speaking with reference to a will,1 “that such falsa demonstratio should be superadded to that which was sufficiently certain before, there must constat de persona; and if to that inapt

*description be added, though false, it will not avoid the de[*491] vise;" and this observation is applicable not only to wills, but to other instruments; so that the characteristic of cases strictly within the rule is this, that the description, so far as it is false, applies to no subject, and, so far as it is true, it applies to one subject only; and the Court, in these cases, rejects no words but those which are shown to have no application to any subject.3

4

In the case of Selwood v. Mildmay, the testator devised to his wife part of his stock in the £4 per Cent. Annuities of the Bank of England, and it was shown by parol evidence, that, at the time he made his will, he had no stock in the £4 per Cent. Annuities, but that he had had some, which he had sold out, and of which he had invested the produce in Long Annuities: it was held in this case, that the bequest was, in substance, a bequest of stock, using the words as a denomination, not as the identical corpus of the stock; and as none could be found to answer the description but the Long Annuities, it was decided that such stock should pass, rather than the will be altogether inoperative.

A testatrix by her will, bequeathed several legacies to different individuals, of £3 per Cent. Consols standing in her name in the books of the Bank of England; but, at the date of her will, as well as at her death, she possessed no such stock, nor stock of any kind whatever. It was held that the ambiguity in this case being latent,

evidence was admissible to show how the mistake of the

[*492] testatrix arose, and to discover her intention.3

1 Thomas v. Thomas, 6 T. R. 676. See, also, Mosley v. Massey, 8 East, 149; per Parke, J., Doe d. Smith v. Galloway, 5 B. & Ald. 51; E. C. L. R. 7; per Littledale, J., Doe d. Ashforth v. Bower, 3 B. & Ad. 459; E. C. L. R. 23; Gynes v. Kemsley, 1 Freem. 293; Hobart, 32, 171; Green v. Armsteed, Id. 65; Vin. Abr., “Devise," (T. b.) pl. 4.

2 London Grand Junction Railway Company v. Freeman, 2 Scott, N. R. 705, 748. See Reg. v. Wilcock, 7 Q. S. 317; Ormerod v. Chadwick, 16 L. J., M. C. 143, 148; Jack v. M'Intyre, 12 Cl. & Fin. 151.

3 See Wigram, Ex. Ev., 3d ed. 142, 165; Mann v. Mann, 14 Johns. R. (U. S.) 1. 3 Ves. jun. 306. This case is designated as a very strong one in 8 Bing. 252; E. C. L. R. 21.

5 Lindgren v. Lindgren, 15 L. J., Chanc. 428; citing Selwood v. Mildmay, 3 Ves. 306; Miller v. Travers, 8 Bing. 244; E. C. L. R. 21; and Doe d. Hiscocks v. Hiscocks, 5 M. & W. 368.(*)

On the same principle, in the case of a lease of a portion of a park, described as being in the occupation of S., and lying within certain specified abuttals, with all houses, &c., belonging thereto, and "which are now in the occupation of S.," it was held, that a house, situated within the abuttals, but not in the occupation of S., would pass. So, where an estate is devised, called A., and described as in the occupation of B., and it is found that, though there is an estate called A., yet the whole is not in B.'s occupation; or, where an estate is devised to a person whose surname or Christian name is mistaken, or whose description is imperfect or inaccurate: in these cases parol evidence is admissible to show what estate was intended to pass, and who was the devisee intended to take, provided there is sufficient indication of intention appearing on the face of the will to justify the application of the evidence.3. Thus, a devise of all the testator's freehold houses in Aldersgate Street, where, in fact, he had no freehold, but had leasehold houses, was held to pass the latter, the word "freehold" being rejected; the rule being, that, where *any property described in a will is sufficiently ascertained by the description, it passes under the devise, although all [*493] the particulars stated in the will with reference to it may not be true. In other words, nil facit error nominis cum de corpore vel persona constat. "It is fit, and therefore required," observes Mr. Preston, "that things should be described by their proper names; but, though this be the general rule, it admits of many exceptions, for things may pass under any denomination by which they have been usually distinguished."

In a recent case,' where property was devised to the second son of Edward W., of L., this devise was held, upon the context of the

1 Doe d. Smith v. Galloway, 5 B. & Ad. 43; E. C. L. R. 27; Beaumont v. Field, 1 B. & Ald. 247; 3 Preston, Abstr. Tit. 206; Doe d. Roberts v. Parry, 13 M. & W. 356.(*)

2 Goodtitle v. Southern, 1 M. & S. 299; E. C. L. R. 28.

3 Judgment, Miller v. Travers, 8 Bing. 248; E. C. L. R. 21; Doe d. Hiscocks v. Hiscocks, 5 M. & W. 363; (*) Rishton v. Cobb, 5 My. & Cr. 145.

4 Day v. Trig, 1 P. Wms. 286; Doe d. Dunning v. Cranstoun, 7 M. & W. 1. (*) See Parker v. Marchant, Scott, N. R. 485. If upon the whole will it plainly appear that the testator meant to pass leasehold property under the description of real estate, the Court will give effect to his intention: Goodman v. Edwards, 2 My. & K. 759; Hobson v. Blackburn, 1 My. & K. 571.

5 Per Parke, B., Doe d. Dunning v. Cranstoun, 7 M. & W. 10; (*) Newton v. Lucas, 1 My. & Cr. 391.

63 Prest., Abst. Tit. 206; 6 Rep. 66.

7 Blundell v. Gladstone, 1 Phill. 279.