being in the faid county of Somerfet, or elsewhere in the king"dom of Great Britain; to hold the fame unto the faid Elizabeth "Whalley, for and during the term of her natural life, to and "for her fole and separate ufe, with power for the faid Elizabeth "Whalley to cut and fell timber for the neceffary repairs of the "faid premises only: and from and immediately after her de"ceafe, I give and devife my faid capital manfion-house, manors, "meffuages, farms, lands, tenements, hereditaments, and pre"mifes, with the appurtenances, unto the faid John Nurton, his "heirs and affigns for ever: alfo I give, devife, and bequeath unto “the faid Elizabeth Whalley, all my leafehold meffuages or tene "ments, lands, and premifes, in the faid county of Somerset, or "elfewhere; to hold unto the faid Elizabeth Whalley for fo many "years of my term, eftate, and intereft therein as fhall run out "and expire in her lifetime, to and for her own fole and separate "ufe and benefit: and from and immediately after her decease, "I give, devife, and bequeath the fame leasehold meffuages, or "tenements, lands, and premifes unto the faid John Nurton, his "executors, adminiftrators, and affigns, for all the refidue of my "term, eftate, and intereft that shall be therein then to come and "unexpired. And it is my exprefs will and defire, and I do "hereby direct, that the faid John Nurton fhall hold and enjoy my faid capital manfion-house, with the appurtenances, for the "Space of one year next after my death. I give, devife, and be "queath unto the faid Thomas Sedgwick Whalley, in cafe he fhall "furvive his wife, the faid Elizabeth Whalley, the sum of one "thousand pounds, to be iffuing and payable out of the estates "hereinbefore devised to the faid Elizabeth Whalley for life, and "to be paid by the faid John Nurton at the end of twelve calendar "months next after her death. All the reft, refidue, and re"mainder of my perfonal eftate and effects whatsoever and where"foever, and of what nature or kind foever, after payment of all 66 66 my juft debts, funeral expences, and legacies hereby given, I "give, devife, and bequeath unto the faid John Nurton, his exe"cutors, adminiftrators, and affigns. And I do hereby make, "conflitute, and appoint him, the faid John Nurton, whole and "fole executor of this my will, hereby revoking all former wills "by me at any time heretofore made; and do make and declare "this to be and contain my laft will and teftament." The teftator died on the 28th of March 1796, having for many years previous to and at his death conftantly occupied all the premifes above mentioned, (which were enumerated in a schedule prefixed to the cafe,) with his faid capital manfion-house, and the gardens gardens and pleafure-grounds of Chipley; which include the parlour-garden, the herb-garden, the pond-garden, the old housegarden, the arbour-garden, the fhrubbery, the limetree-grove, and a court adjoining, and the public and private walks or roadways, one of the latter of which was through the park to Chipley Houfe, befides a back court, and other curtilages. The question for the opinion of the Court was, Whether the leffors of the Plaintiff, or any of them, were entitled to recover all or any, and what part of the above-named premises; and whether they, or any of them, paffed to John Nurton by the claufe which directs that he is to have the manfion-houfe, with the appurtenances, for a year after the teftator's death? Le Blanc Serjt. for the Plaintiff. The 1ft queftion is, What is the true fignification of the word "appurtenances?" the 2d, What is the intention of the teftator, as it appears on the face of the will? The ftrict technical fenfe of the word "appurtenances" is confined to buildings, curtilage, and garden belonging to the houfe. In old times indeed, there was a queftion as to the latter. A devife of a meffuage with the appurtenances, does not include lands ufually occupied with the houfe: only fuch as are immediately neceffary to the enjoyment of it. Bro. Abr. Feoffment of Lands, pl. 53. Bettifworth's cafe, 2 Co. 32. Hearne v. Allen, Cro. Car.57. Hutton, 85. S. C. This laft cafe was on a will, the two former were on deeds. But notwithstanding the general rule, if it appear to be the obvious intention of the teftator, that lands generally occupied with the houfe fhould pafs, the Court would conftrue the word "appurtenances" contrary to its strict technical fenfe, fo as to carry the lands to the Defendant. The teftator here was poffeffed of a manfion-house, together with parcels of land, amounting to about fixty-four acres and a half; there were gardens, fhrubberies, public walks and ways, which might well come under the word "appurtenances," and it is not contended by the leffors of the Plaintiff that they did not pafs: they were fufficient to fatisfy the word "appurtenances," without the additional lands. The teftator was well aware of the dif tinction between appurtenances to the manfion-houfe, and lands occupied with the manfion-houfe; for in every claufe, except the laft, (which is the one in queftion,) he describes the particular premifes which are intended to pafs, and afterwards adds the word "appurtenances." So in the devife to E. Whalley the words are," all that my capital manfion-houfe wherein I now “live, and the lands and grounds thereto belonging, and there"with held and enjoyed, with the appurtenances;" but in the laft or directory claufe, when he takes out of the devife to E. Whalley what was intended to be given to the Defendant for a year, he drops the words which defcribe the lands occupied, and fays only, "manfion-house, with the appurtenances." Befides, it is to be confidered that the Defendant had been fteward to the devifor, and was by will appointed his executor; it was neceffary, therefore, that he should have access to all the papers of the devifor, with as much facility as poffible: this could be beft afforded him by the devife of the manfion-house for a year, with what was neceflary to its actual enjoyment; but a beneficial intereft in the lands round it could not come within the fame view. Williams Serjt. for the Defendant. It is manifeft from the will, that every thing was meant to pafs. If that intent can be fhewn, it is admitted that the words are large enough. But fome cafes may be cited, to fhew that er vi termini more will pafs by the word "appurtenances" than has been stated on the other fide. In Higham v. Baker, Cro. Eliz. 16. Anderfon Ch. J. fays, "That land thall país as pertaining to a houfe which hath "been occupied with it by the space of ten or twelve years; for "by that time it hath gained the name of parcel, or belonging, and fhall pafs with the house by that name in a will or leafes.” The fame doctrine is laid down in Loft v. Baker, 2 Rolle's Rep. 347. So by the cafe of Yates v. Clincard, Cro. Eliz. 704. it appears, that lands may pafs under the words," houfe, with "the appurtenances." In Boocker, v. Samford, Cro. Eliz. 113. a devife of a "tenement, with the appurtenances, in which H. B. "dwelleth in Ebley," was held to pafs lands out of Ebley, which had been ufed with the tenement by the space of fixty years, and had always paffed by one grant, and under one rent. And in the prefent cafe the lands in queftion had been for many years conftantly occupied with the houfe. The ftrongest cafe in favour of the Plaintiff is Smithfon v. Cage, Cro. Jac. 526.; but that was a cafe of furrender of copyhold, which is conftrued as ftrictly as a deed. But even there, the orchards were held to pafs. By Hill v. Graunge, Plowd. Com. 170. it appears that the terms "appertaining to the meffuage" may, even in a deed, fignify lands ufually occupied with the mefluage (a). As to the question of intent, it has been said, that if the teftator had (a) Land may be said to be appertaining to an houfe, as well in the King's cafe, as of a common perfon, where it hath been let and occupied together by a convenient time. Jennings v. Lake, Cre. Car. 168. Vide etiam Go. Entr. 384. Dyer. 362.. meant meant the lands to pafs, he would have described them: and the circumftance of the description being inferted in the former clause, and omitted in the latter, has been relied on. But the words, "houfe with the appurtenances," in the directory clause, refer to the former defcription, and thew that the Defendant should take in the fame manner as E. Whalley. The cafes of Doe v. Collins, 2 Term Rep. 498. and Blackborne v. Edgley, 1 P.IVms. 600. prove that very little is fufficient to pafs lands occupied with the house, where it appears to have been the intention that they should pass. Le Blanc in reply was ftopped by the Court. EYRE Ch. J. I have no doubt upon the cafe, unless it be with respect to the orchards. Lands will not pafs under the word " appurtenances" taken in its ftrict technical fenfe: they will pafs if it appears that a larger fenfe was intended to be given to it. If the Courts had always adhered to this line of conftruction, many reported cafes would not now difgrace the books. Every teftator ought to be fuppofed to take legal words in a legal fenfe, unless, according to the marginal note to the cafe in Hobart (a), there be demonftration plain of an intent to use them in a different fenfe. In the former part of the will there is a devife of a houfe with lands in terms exprefs, to which is added, "with the appurtenances," in order to comprize all which might not fall within the defcription. Then follows a declaration that the Defendant fhall have for one year fomething which was included in the above devife. The teftator must be fupposed to have understood what he was talking about. If he had intended to have given the whole, the words were before him, and he ought to have used them. Suppofe there had been nothing stated to let us into the intention of the teftator, but the mere devise to the Defendant, we must have examined what was occupied by the teftator; and if we had found a house situated in a park which had always been occupied with it, and was, as it were, an integral part of the thing, this might have proved the intention of the teftator to pass the whole together. There, if nothing to the contrary had appeared, we might have fuppofed the teftator to have ufed the word "appurtenances" in a fenfe different from its technical fenfe, But this is not that cafe. It is true that the premises were occupied for a confiderable time together with the houfe: but firft, the whole of the premises are not neceffarily connected; in the next place, there is here folid ground to argue, that the teftator (2) Heb. 33. The note is -No man fhall fhew me a cafe in law, where by purchase by devife to an heir, any may take that is 1797 BUCK บ. NURTON. understood the meaning of the words employed in the devife, having fometimes ufed the word "lands" as a part of the defcription, and fometimes dropt it. The Defendant being the teftator's executor, and having been his fteward, affords a fair ground of argument. The teftator gave him the exclufive enjoyment of the manfion-house, "with the appurtenances," for one year only, after having devised the manfion-house and lands alfo "with the ap"purtenances," to Mrs. E. Whalley for her life, with remainder to the Defendant. Now with what view was this done? Moft probably for the convenience of the Defendant in the execution of the duty impofed upon him. The general intent, therefore, as collected from the devife, and the relation in which the devifee ftood to the teftator, does not call upon us to go beyond the ftrict rule in conftruing the technical word "appurtenances." HEATH J. I am of the fame opinion. We ought to adhere to the ftrict technical fenfe of the word "appurtenances." For though the intention is not clearly expreffed, why the Defendant fhould have the manfion-house at all, yet it appears, that he was. executor and refiduary legatee; and as fuch was intitled to the ftock, the arrears of rent, the furniture, &c. A year's occupation therefore was given him, to settle his accounts, and collect what belonged to him. He ought to have the house, and what comes within the ftrict fenfe of the word "appurtenances." Befides, this may be diftinguished from the cafes cited, for it is a feparation of the premifes for a year only, whereas in fome of the other cafes it was for a great length of time, and in some perpetual, which might induce the Court to lean against it. ROOKE J. I am of the fame opinion. The poftea to be delivered to the Plaintiff for all the premifes except the orchards. June 27th. If declaration a bail conclude: MORGAN Affignee of the Sheriff v. SARGENT one of the Bail of OWEN. baddon THE declaration, after flating the writ, the arreft, the nonappearance, and the affignment of the bail-bond, proceeded thus: "By reafon of which faid premifes, and by force of the " ftatute, &c. an action hath accrued to the faid T. Morgan as Plaintiff to demand and have of the principal” (instead of the bail), and ftate non-payment by the principal; it is bad on a special demurrer. "Whereby an "action hath "accrued to the "affignee, |