that an averment, which is altogether superfluous, may here be rejected as surplusage (s). Accordingly, where a criminal information was laid against a member of the legislative Assembly of New South Wales, for an assault on a member, committed within the precincts of the House, while the Assembly was sitting, which information averred that such assault was in contempt of the Assembly (that being in itself no offence), it was held that the information was good, as the alleged contempt could be treated as surplusage, and the information sustainable for an assault (t). If, however, 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 may, unless an amendment be permitted, be fatal (u). Meaning of rule. FALSA DEMONSTRATIO NON NOCET CUM DE CORPORE CONSTAT. 1 Exch. 356), is an instance of the tion. (s) Reg. v. Parker, L. R. 1 C. C. 225. (t) A.-G. of N. S. Wales v. Macpherson, L. R. 3 P. C. 268. (u) Dickins. Quart. Sess., 5th ed., Aldersgate Street, London," by Mr. Serjt. Talfourd, 175. (x) Per Lindley, M.R., Cowen v. Truefitt, [1899] 2 Ch. 309, 311: 68 L. J. Ch. 563, citing Jarman on Wills, 5th ed. 742. (y) Id.; and per Alderson, B., Morrell v. Fisher, 4 Exch. 591, 604. having in fact only leasehold houses there, it was held that the word "freehold" should rather be rejected than the will be wholly void, and that the leasehold houses should pass (2) ; and again, where a testator devised "his freehold farm situate at E. and now in the occupation of J. B.," it was held that the whole farm passed under the devise, although a part of it was copyhold (a). In the latter case weight was given to the fact that there was no residuary devise, for a will should be read, if possible, so as to lead to a testacy. not an intestacy (b); and the devise in question was construed according to the principle, that "if the words of description when examined do not fit with accuracy, and if there must be some modification of some part of them in order to place a sensible construction on the will, then the whole thing must be looked at fairly in order to see what are the leading words of description and what is the subordinate matter, and for this purpose evidence of extrinsic facts may be regarded " (c). The rule as to falsa demonstratio has sometimes been Erroneous stated to be that "if there be an adequate and sufficient addition. description, with convenient certainty of what was meant to pass, a subsequent erroneous addition will not vitiate it" (d): quicquid demonstratæ rei additur satis demonstratæ frustra est (e). But in applying the doctrine of falsa demonstratio it is not material in what part of the description the falsa demonstratio is found: to limit the doctrine to cases. in which the misdescription occurs at the end of the sentence would be to reduce a very useful rule, which is founded on good sense, to a mere technicality (f). Incivile est nisi tota sententia perspecta de aliquâ parte judicare (g). The rule, (z) Day v. Trig, 1 P. Wms. 286; cited [1899] 2 Ch. 312. (a) Re Bright-Smith, 31 Ch. D. 314: 55 L. J. Ch. 365. Re Harrison, 30 Ch. D. 390, 394: 55 L. J. Ch. 799. (c) Per Ld. Selborne, Hardwick v. Hardwick, L. R. 16 Eq. 168, 175. (e) D. 33, 4, 1, § 8. (f) See Cowen v. Truefitt, supra. Cum de corpore constat. however, is well illustrated by the case of a gift of an entire thing which is sufficiently described, followed by an insuffcient enumeration of the particulars of which that entirety consists for the latter may be treated as a falsa descriptio que non nocet, unless, indeed, the context and surrounding circumstances show that what happens to be a blundering enumeration of particulars was a designed limitation of the gift itself (h). "Where some subject-matter is devised as a whole under a denomination, which is applicable to the entire land, and then the words of description that include and denote the entire subject-matter are followed by words which are added on the principle of enumeration, but do not completely enumerate and exhaust all the particulars which are comprehended and included within the antecedent universal or generic denomination: then the ordinary principle and rule of law which is perfectly consistent with common sense and reason is this: that the entirety which has been expressly and definitely given, shall not be prejudiced by an imperfect and inaccurate enumeration of the particulars of the specific gift" (i). The maxim is often cited without the addition of the words, cum de corpore constat (k), but these words seem to be of some importance; for it has been said that the maxim applies only-as expressed by Lord Kenyon in Thomas v. Thomas (1)-to cases "in which the false demonstration is superadded to that which was sufficiently certain before" (m). (h) Travers v. Blundell, 6 Ch. D.436, 445. See Harrison v. Hyde, 4 H. & N. 805; Josh v. Josh, 5 C. B. N. S. 454; Com. Dig., "Fait" (E. 4); Cambridge v. Rous, 8 Ves. 12; 6 R. R. 199; Enohin v. Wylie, 10 H. L. Cas. 1. (i) Per Ld. Westbury, West v. Lawday, 11 H. L. Cas. 384. See also, per Lefroy, C.J., Roe v. Lidwell, 11 Ir. C. L. R. 326, cited arg. Skull v. Glenister, 16 C. B. N. S. 89. (k) Or "cum de persona constat;" see 6 T. R. 676. The maxim is cited in full in the judgment, 6 Ch. D. 444. (7) 6 T. R. 671, 676. See Mosley v. Massey, 8 East, 149; per Parke, J., Doe v. Galloway, 5 B. & Ad. 51; 39 R. R. 381; Dyne v. Nutley, 14 C. B. 122; per Littledale, J., Doc v. Bower, 3 B. & Ad. 549; 37 R. R. 466; Gynes v. Kemsley, 1 Free. 293; Hob. 32, 65, 171: Vin. Abr., "Devise" (T. b.), pl. 4. (m) Per Wightman, J., Doe v Hubbard, 15 Q. B. 240. The doctrine, falsa demonstratio non nocet, applies "only where the words of the devise, exclusive of the falsa demonstratio, are sufficient of themselves to describe the property intended to be devised, reference being had, if necessary, to the situation of the premises, to the names by which they have been known, or to other circumstances properly pointing to the meaning of the description" (n). The foregoing observations are, in the main, applicable not only to wills, but to other instruments (o); so that the characteristic of cases strictly within the above rule is this, that the description, so far as it is false, applies to no subject, and, so far as it is true, applies only to one subject; and the Court, in these cases, rejects no words save words shown to have no application to any subject (p›). The following case shows the anxiety of the Court to give effect to a testator's intention, where the subject-matter of the bequest is inaccurately described, but when explained by extrinsic evidence may be made sufficiently certain to enable the Court to act upon it. A testator by his will gave an annuity of £21 per annum, which "I purchased of" G. He had no annuity of that amount, but he had an annuity of £46 which he had purchased from G., and he had insured G.'s life for the amount of the purchase-money, at the yearly premium of £25, leaving £21 as his beneficial interest in the annuity. It was held that the entire annuity of £46 per annum passed by the bequest (q). Where accordingly a question involving the legal doctrine now before us arises upon a will, we must inquire whether there is a devise of a thing certain; if there be, the (n) Per Patteson, J., 15 Q. B. 241. (0) Lond. Gr. Junction R. Co. v. Freeman, 2 Scott, N. R. 705, 748. See Reg. v. Wilcock, 7 Q. B. 317; Jack v. M'Intyre, 12 Cl. & F. 151; Ormerod v. Chadwick, 16 M. & W. 367; followed by Wightman, J., Reg. v. Stretfield, 32 L. J. M. C. 236. (p) See Wigram, Ex. Ev., 4th ed., 145, 165; Judgm., Morrell v. Fisher, 4 Exch. 604; Mann v. Mann, 14 Johns. (U.S.), R. 1. (q) Purchase v. Shallis, 14 Jur. 403; cf. Re Rowe, [1898] 1 Ch. 153: 67 L. J. Ch. 87. Selwood v. Mildmay. addition of an untrue circumstance will not vitiate the devise (r). In Selwood v. Mildmay (s), 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 the proceeds of which he had invested in Long Annuities. It was held 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. Again, a testatrix, by her will, bequeathed several legacies 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 of 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 testatrix arose, and to discover her intention (t). But where a testatrix died possessed of property in Consols, Reduced Annuities, and Bank Stock, and by her will bequeathed "the whole of my fortune now standing in the Funds to E. S." it was held that the Bank Stock did not pass (u). On the same principle, in the case of a lease of part of a park, described as being in the occupation of S., and as [1896] 2 Ch. 364. (r) Plowd. 191; cited and adopted in Nightingall v. Smith, 1 Exch. 886; and, per Parke, B., Morrell v. Fisher, 4 Exch. 599. And, as illustrating the passage above cited, cf. Doe v. Hubbard, 15 Q. B. 227, with Doe v. Carpenter, 16 Id. 181. (s) 3 Ves. 306; cf. Re Weeding, (t) Lindgren v. Lindgren, 9 Beav. 358; citing Selwood v. Mildway, 3 Ves. 306; 4 R. R. 1; Miller v. Travers, 8 Bing. 244; 34 R. R. 703; and Doe v. Hiscocks, 5 M. & W. 363. (u) Slingsby v. Grainger, 7 H. L Cas. 273. |