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evidence, it would suffice. If a man leased his farm of A., in WATERPARK the parish of B., and there was a covenant that fields Y. and Z. should be cultivated in a particular way, I think they might pass, though neither part of the farm nor in the parish of B. I think, therefore, the judgment was right, awarding a venire de novo. I need scarcely say, I offer no opinion as to the value of the evidence.

My Lords, the judgment which I am about to read is also that of my brother WATSON.

We think there is great difficulty in this case, and which is increased by the loss of the map, which is part of the bill of exceptions. In order to the parcel of land, viz., 1,700 acres of mountain, passing to the lessee under the lease of 1704, there must be words in the lease capable of comprehending and expressing it. This is a matter of absolute necessity, as well by the common law as by the Statute of Frauds.

The question put by your Lordships in substance is, whether there was evidence which ought to have been submitted to the jury, in order to the determination of the question, whether it was comprehended within the term "village of Scartnaglowrane." There was evidence that there is and has been, as long back as memory extends, a village of Scartnaglowrane properly so called; that the place where it was and is, and the district of mountain now in question, were formerly all one. We also think there was evidence from which a jury might infer that the lessee and his under-tenants were, from the time of the granting the lease in 1704, in the exclusive possession of this mountain under the lease, and occupied it in the only way in which probably it was capable of being occupied, by grazing cattle upon it; that there is also evidence that they exercised, as of right, the dominion of inclosing or reclaiming parts of it, and cutting turf and killing game; which latter, if lawfully done, must have been by virtue of the possession of the soil, for there is no pretence for supposing that the lessee had any incorporeal right or easement to authorise it. Assuming the jury to find these points in favour of the lessee, if it be legally possible to construe the word *" village" to comprehend the mountain, it ought to be so construed.

In Sheppard's Touchstone (1), the term "village or town" is said to be "of large extent, and by the grant of it a manor, land, meadow, and pasture, and divers such like things, may

(1) P. 92.

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WATERPARK pass." And we entertain no doubt that a waste, such as a village green, or a common, upon which the inhabitants of a village had common of pasture, might pass. The reference in the Touchstone is to Coke Littleton, page 5, and Plowden, page 168. In the reference in Coke Littleton, the word is "ville or town," which is a more comprehensive term than "village," and if "village" could be read as synonymous with "town," in the sense of townland, there could be no doubt as to the sufficiency of the word in Ireland to pass the mountain. The reference in Plowden seems rather to weaken the authority. The word there again is "town; and it is mentioned as a compound thing, which may have divers things appurtenant to it, or parcel of it; and it is said that it may contain land and pasture. But the reason given is, for that the houses may be decayed, and land and pasture be where houses formerly stood. If this be the true reason, and that nothing passed by the word "town" except where houses had been or are, it is difficult to see how the term "village can comprehend 1,700 acres of waste mountain where no house probably ever stood.

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July 12.

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After very great doubt and hesitation, we have arrived at the conclusion that there was evidence which ought to have been submitted to the jury in support of the affirmative of the issue. We are not insensible that it may appear to many, that to construe the term "village of Scartnaglowrane to comprehend 1,700 acres of mountain adjoining to it is an abuse of the English language. But we collect, from the judgment of Lord Chief Justice MONAGHAN, Mr. Baron PENNEFATHER, and other of the Irish Judges, that in Ireland waste and unprofitable lands, although not noticed in conveyances, have been deemed to pass. And considering that, in leases for lives, renewable for ever (a species of title which largely exists there), the twenty years' possession (which generally concludes such questions as the present, where the fee simple is conveyed) is practically of no avail, we think we ought to be very cautious in limiting the operation of long-continued possession in the construction of leases, lest by possibility we should affect titles which have hitherto always been and now are considered unquestionable.

[Mr. Justice CROMPTON, Mr. Justice WILLIAMS, and Mr. Justice WIGHTMAN were also of opinion that the question should be answered in the affirmative.]

LORD CHELMSFORD:

My Lords, this is a writ of error brought upon a judgment given by the Court of Exchequer Chamber in Ireland, in an

r.

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action of trespass for breaking and entering certain lands of WATERPARK the plaintiff called Scartnaglowrane, or Tincurry, in the Barony of Iffa, and Offa, in the county of Tipperary, with dogs and guns, hunting and searching for game. It is unnecessary to state the pleas of the defendant, because by the consent of parties an issue was directed to be tried, "whether under the lease of 9th January, 1704, and the several derivative and renewal leases under which the defendant's title is acquired, the defendant is, as against the plaintiff, entitled to the right of sporting over the lands in the plaint mentioned."

This issue was ordered according to the provisions of the 102nd section of the Common Law Procedure Amendment Act, Ireland, 1853. But as one of the learned Judges of the Court below (Baron GREENE) observed, "The issue raised a question wholly different from, and beside any which the pleadings suggested, and put the decision of that question upon the effect of a deed not previously mentioned at all." The consent of the parties, however, which is mentioned in the order, cures any objection which might otherwise have arisen; and it seems to have been agreed, that the right of sporting involved in the issue was one which did not arise out of a grant of it to be exercised over the land of another, but that it was connected with, and would therefore determine, the right to the soil itself. The real question, therefore, to be decided was, whether by the lease of 9th January, 1704, certain mountain land of about 1,700 acres in extent, and *generally known by the name of Scartnaglowrane, but also called Tincurry, over which the right of sporting was claimed, passed to the lessee.

(His Lordship here stated the demise, the substance of the evidence, and the exceptions: see ante, p. 318, &c.)

In considering the exceptions, it may be as well to dismiss. at once the second, third, and fourth, which it appears to me. the defendant could not have maintained, and to confine myself to the first and fifth, which will be found to be virtually the same. The exception in both is to the Judge's direction to the jury to find a verdict for the plaintiff. If it had been upon the first, to the Judge's refusing to tell the jury to find a verdict for the defendant, and upon the fifth, to his refusal to tell the jury that the right of sporting was granted by the lease of 9th January, 1704, and to find a verdict for the defendant accordingly, neither of them would have been. good; but upon each of them it will be seen that although the defendant submitted that the Judge should have directed the jurors in a particular manner, yet the exceptions are pointed, not to his refusal to direct them as the defendant insisted he

[ *677 ]

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WATERPARK ought to do, but to his direction itself, which upon the first exception was "to find for the plaintiff," and upon the fifth, that "there was no question for them upon the issues, and that they were bound to find a verdict for the plaintiff." These exceptions seem to me to raise sufficiently the real question, which is, whether there was evidence which ought to be submitted to the jury, to show that the mountain of Scartnaglowrane was parcel of the premises comprised in the lease of 9th January, 1704, or whether the language of the lease was so clear that it required and admitted of no explanation, and was the subject merely of judicial construction.

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In support of the opinion of the learned Judges who *thought that parol evidence was inadmissible to explain the lease, it must be contended that the words used could not by possibility apply to and include the mountain land. Parol evidence is generally admissible to apply the words used in a deed, and to identify the property comprised within it. You cannot, indeed, show that the words were intended to include a particular piece of land, but you may prove facts from which you may collect the meaning of the words used, so as to include or exclude a portion of land, where the words are capable of either construction. The Judges, therefore, who decided that there was no question of fact to be left to the jury, must have been of opinion that the language of the lease was not capable of receiving a construction which would embrace the 1,700 acres of mountain land. They must have considered that the mountain land could not pass by the words "village of Scartnaglowrane," whatever evidence of enjoyment of it by the lessee might have been produced. Now, it appears to me, that it was sufficient for the defendant, in order to enable his case to reach the jury, to show that the word village" was not a word of such limited and confined meaning as to be incapable of comprehending a large tract of country; but the learned Judge could not have withdrawn the question from them and taken it upon himself to decide, without being of opinion that the word "village village" was of such precise and definite application, as to exclude ex vi termini any such large extent of land as the mountain land in question. But I think your Lordships will be of opinion that, so far from the word "village" being a word which any one can precisely define so as to be able at once to know what is and what is not comprehended within it, it is difficult, if not impossible, to find what was its exact meaning and extent at the time when the lease of 1704 was made. That its modern *popular meaning is different from its ancient signification is sufficiently apparent from the various

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authorities which were referred to in the course of the argument WATERPARK from Fortescue, from Coke, from Sheppard, and from other authors. None of the passages referred to from these writers assists in fixing any certain meaning to the term, but they all tend to establish what is sufficient for the present purpose, that it is a word which was formerly at least of extensive signification, and which might have comprehended within it a district as large as the mountain of Scartnaglowrane. It is quite unnecessary to go farther, because if the word "village" was capable of this enlarged meaning, then the defendant's case ought to have been submitted to the jurors, not for the purpose of their deciding in the terms of the question of fact, upon which their opinion was taken by the learned Judge, 'whether under the terms of the lease of 9th January, 1704, the 1,700 statute acres of wild mountain land passed under the words 'the village of Scartnaglowrane,'" which in that form was a question for him and not for them, but whether the defendant's evidence did not show an enjoyment of the mountain land as lessee under the lease of 1704, and as parcel of that lease.

It is unnecessary to consider the nature and effect of the defendant's evidence; and perhaps it would not be right to do so, as it must be submitted to another jury. I think the learned Judge ought not to have decided the case himself upon his construction of the lease, but ought to have left the evidence to the jury; therefore, that the first and fifth exceptions are sustained, and that the judgment of the Court of Exchequer Chamber ought to be affirmed, and a venire de novo awarded.

LORD CRANWORTH:

My Lords, concurring, as I do, entirely in the view which has been taken of this case by my noble and learned friend who has just sat down, I might perhaps have satisfied myself by merely giving a silent acquiescence; but I think that would be hardly respectful to the learned Judges in Ireland, who appear to have been nearly equally divided upon the point now awaiting our decision. I shall, however, make but very few observations.

The only point for our decision is, whether the learned Judge at the trial was right in treating the question as one entirely of law, and not at all of fact; in other words, whether he was right in treating the description of the parcels as insufficient in point of law to include the mountain. It is certain that where parcels are described in old documents by words of a general nature, or of doubtful import, we may, indeed we must, recur

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