in the deed of 1852, except that there was a map indorsed on the deed of 1835, to which reference was made at the conclusion of the parcels in these words: "which said premises are particularly delineated by the map at the back of this sett," while on the deed of 1852 there was no map, and by consequence no words of reference. The parcels granted were in each of the deeds described as "bounded on the north and west by the estate of Bosleake, the property of E. W. W. Pendarves, Esq., and the estate of Treskillard, the property of Lord Granville, on the south, by a straight line of about 355 fathoms from John Vincent's house at the south-west extremity of the sett to a boundstone at the north-west extremity of the South Wheal Basset sett, and from thence eastward by the north side of the road leading to Carnkie to a boundstone fixed at the corner of the North Wheal Basset sett, and from thence due north about 170 fathoms to a boundstone fixed at the south-east corner of Bosleake estate."

As to the position of the boundstones, there was very little dispute; but John Vincent's house had a depth of about thirty feet, and the question was, whether the damage should be assessed on the footing that the true southern boundary of the plaintiff's mine was a line drawn from the north-east corner of John Vincent's house, or a line drawn from the south-west corner of the house. In the latter case the amount paid into court would not be sufficient by many thousands of pounds. The question to be tried was, therefore, whether the triangle of land bounded by the house as its base and by the straight lines drawn from its north-east and south-west corners respectively to the boundstones, was or was not parcel of the grant made by the deed of 1835. If it was passed by that deed, it could not have been the subject of the grant made to the defendants in 1843, and the plaintiff would be entitled to it under his deed of 1852. If it was not passed by the deed of 1835, then the defendants were entitled to it under their deed of 1843. The map on which the determination of this question depended was drawn to a very small scale, John Vincent's house being represented by a very minute oblong rectangular spot, but it appeared with

sufficient distinctness from the map on the lease, that the line to the boundstone was drawn from the north-east corner of the spot. But on the map, on the counterpart, it was drawn to the middle or a little below.

Parol evidence shewed that the house was misplaced some 150 yards too far westward, and some fifteen yards too far to the south, and the plaintiff claimed that the map should be corrected by placing the house in its proper position, leaving the line as nearly as possible as it was delineated on the map, thus making it run from the south angle of the house. And the defendants claimed that the house should be placed in its proper position and the line shifted northwards with it, thus preserving the north angle of the house as the starting-point. Parol evidence also shewed that there was to the north and to the east sides of the house a lean-to, and that if these additions were included in the house the whole would be represented by two parallelograms, and not by one oblong rectangle. The whole question was left to the jury, and it was agreed that in either case the damages should be assessed by arbitration. A great deal of other extrinsic evidence was laid before the jury, and they found by their verdict that the southern boundary of the plaintiff's mine should be a line drawn from the south-east corner of John Vincent's house to a boundstone at the north-west extremity of the South Wheal Basset sett. But leave was reserved to the defendants to move to enter a verdict the other way, or to reduce the damages on the footing of the other line of boundary, if the Court should be of opinion that the evidence did not warrant such a finding.

In pursuance of this leave reserved, a rule to enter the verdict for the defendants, or to set aside the verdict as against the weight of evidence, was granted in November, 1858; but it stood over for argument until the decision of the Court of Exchequer Chamber should be given in a case of Reynolds v. Buckley.

This case of Reynolds v. Buckley related to precisely the same premises and raised the same question, but was between different parties, that is to say, between grantees interested in the Wheal Haste sett, under the deed of 1835, as plaintiffs, and former grantees of the South Frances

mine as defendants. In that case some evidence which was produced before the jury at the trial of the subsequent case of Lyle v. Richards was not produced; but the whole case was left to the jury, as in Lyle v. Richards.

The jury found that the boundary should run from the south corner of the house. This verdict had been disputed, on the ground that it was a question of construction for the Judge, and not one for the jury; and that, on the true construction of the deed, the line should run from the north corner. But the Court of Queen's Bench confirmed the verdict; Erle, J., in July, 1858, delivered the judgment of the Court, that as extrinsic evidence had raised an ambiguity in the application of a written document to land, it was properly left as a question of evidence for the jury as to the intention of the parties in respect of parcel or no parcel, and that it was not a question of construction for the Judge.

This judgment was, on appeal, confirmed by the Court of Exchequer Chamber, but solely on the ground that the Court had come to the same conclusion as the jury; and Williams, J., in delivering the judgment of the Court (February, 1861), observed that it was not necessary to decide whether the construction of the lease in question was properly a question for the Court or a question for the jury; but his Lordship referred to the case of Lord Waterpark v. Fennell (1).

The rule granted in 1858 in Lyle v. Richards came on for argument, before the Court of Queen's Bench, in January, 1862, when the Lord Chief Justice delivered the judgment of the Court that it was a matter for the jury on the whole evidence; but having regard to the fact that in Reynolds v. Buckley there had been, with reference to the same boundary, a verdict of another jury to the contrary, which verdict the Court of Exchequer Chamber had approved, leave was given for a new trial on payment of costs.

This decision was reversed by the Court of Exchequer Chamber in June, 1864, when Erle, C.J. delivered the judgment of the Court, that it was for the Judge to construe the written instrument; that as there was

(1) 7 H.L. Cas. 650.

nothing in the delineation by the map that was repugnant to the description in words, there was no room for evidence to shew what the meaning of the plan was; and as the plan shewed clearly that the boundary ran from the north-east corner, the Court ordered the verdict to be entered for the defendants, unless the arbitrator should award that the 5257. paid into court was not sufficient to cover the damages sustained on the footing that the line ran from the north-east corner. But the Lord Chief Baron, while agreeing with the judgment of the Court, declared that his impression was, that a map ought to be considered as a species of respectable hearsay evidence, or (if admitted by both sides) as a kind of statement made by the parties themselves, in either case for the jury, and not for the Court to look at, and to say what it really is. The present appeal was from this judg

ment.

The Solicitor General (Sir R. P. Collier) and Rolt (Buller with them), for the appellants. This was properly a question to be decided by extrinsic evidence; for if the description of the parcels in the deed was not sufficient to determine the boundary, then the case of Lord Waterpark v. Fennell (1) applies, viz., where parcels are described by words of a general nature or of a doubtful import, evidence, such as evidence of usage, is proper to be received to shew what the words comprehend. If, on the other hand, there is in the deed an adequate description, then the subsequent error in the map will not vitiate the description; for if the prior description of parcels sufficiently conveys, a further description, as of a wrong quantity, will be rejected as falsa demonstratio-Llewellyn v. the Earl of Jersey (2), Morrell v. Fisher (3). The ambiguity only appears when you come to compare the external thing with the thing described. This is a latent ambiguity, and raises the question of fact, whether parcel or no parcel; and this may be explained by evidence-7th Proposition of Wigram's Law of Extrinsic Evidence; Goodtitle v. Southern (4). Though parol evidence may not be

(2) 11 Mee. & W. 183; s. c. 12 Law J. Rep. (N.S.) Exch. 243. 19 Law J. Rep.

(3) 4 Exch. Rep. 591; s. c. (N.S.) C.P. 273.

(4) 1 M. & S. 299.

admissible to shew what was the intention of the parties, it must be employed to shew what was the external thing referred to; and if there are two things answering the same description, you may take parol evidence to shew which of the two was intended. Here John Vincent's house might have been a point, a stone; only when you get to the house you find that it has parts and magnitude; then the terms of the deed are found to be ambiguous, for the line might run from the north or from the south, or from the middle of the house. Such an ambiguity may be explained by evidencePaddock v. Radley (5) and Freeland v. Burt (6). It is for the jury to look at the extrinsic evidence thus admitted. The construction of written documents is for the Judge; but when it is shewn by extrinsic evidence that the terms used are ambiguous, evidence is admissible to explain the ambiguity, and then it is for the jury to say in what sense the ambiguous expressions were used per Maule, J. in Smith v. Thompson (7). Where extrinsic evidence. creates an ambiguity, extrinsic evidence may be employed to remove it-Bacon's Maxims, Rule 23. It is admitted that all that was passed by the deed of 1835 was passed by that of 1852, and the words of the deed of 1835 would pass the whole that the appellants ask for, because deeds are to be read most strongly against the grantor; if this was passed by the deed of 1835 the landlord could not have passed it to the respondents by the deed of 1843. The deed of 1835 would have passed all but for the map; but the map is wrong, as can be shewn by evidence and reference to roads, hedges, &c. John Vincent's house is misplaced. This was falsa demonstratio. Reject the falsa demonstratio, the rest is correct. If the appellants had rested on the deed of 1852, they would have been entitled to the land. If the deed of 1835 is to be admitted, then other extrinsic evidence must also be admitted, and in that case the appellants are entitled to succeed under the verdict of the jury upon such evidence.

The Attorney General (Sir R. Palmer) and Karslake (Pinder with them), for the

(5) 1 Cr. & J. 90.

(6) 1 Term Rep. 701.

(7) 8 Com. B. Rep. 45, and at p. 59. NEW SERIES, 35.-Q.B.

respondents. It is the duty of the Court to place questions of fact before the jury and direct them how to give their verdict according to their finding of the question. It is for the Court to construe written documents; the duties of the jury are confined to proof. In construing documents, it is the duty of the Judge to look to the deed, and not to take into consideration facts subsequent - Drake v. Drake (8). When the description in the deed comes to be applied to the external thing, two questions may arise, first, is there any ambiguity and, secondly, is there any fact to be found which would remove the ambiguity and determine the verdict? In this case the plaintiffs' evidence raised no ambiguity and solved none; the deed of 1835, put in by the plaintiff, shewed clearly that the line ran from the north-east corner of the house. This deed was put in by the plaintiff, and must be taken most strongly in the defendants' favour-Verba chartarum fortius accipiuntur contra proferentem. If the appellants are restricted to their deed of 1852, and no other evidence is admitted, then they must fail upon the language of the deed. If an error in a map or plan indorsed on a deed makes the matter a question for the jury, as the appellants contend, then any error, however trivial, in a map or plan would remove the struction of the instrument from the Judge, as a matter of law, to the jury as a matter of fact and evidence. If the appellants are confined to their deed of 1852 they cannot succeed, because the respondents had already obtained by their deed of 1843 the parcel of land in question; the landlord had no power to grant the same to another party in 1852. But suppose that they rely, as they have been allowed to do, on the deed of 1835, and to shew by evidence that the house was misplaced. Here there would be a description rendered inaccurate by the superfluous addition of the locality of the house, which superfluous addition is incorrect; but it is obvious that the whole of the class of cases in which an inaccurate description has been found sufficient merely by rejecting the superfluous words is one in which no ambiguity exists, and if there is no ambiguity, there can be (8) 8 H.L. Cas. 172; s. c. 29 Law J. Rep. (N.S.) Chane. 850.

2 F

con

no question for the jury. If in this case the superfluous addition is rejected, the description is correct. Suppose the grant referred to John Vincent's house, specifying the north-east corner as the starting-point, but going on to say that the house was built of so and so, or stood so and so, this addition being wrong; this erroneous addition would have been rejected. So, here, the position of the house is immaterial. The line is drawn on the map from the northeast corner, and whether or not the house is properly placed is immaterial.

The Solicitor General, in reply.-The other side admit that this was a proper case for parol evidence, but that upon such evidence it was a question of law for the Court to decide what was the effect of it. The Court of Exchequer Chamber treated the verdict of the jury as not to be considered, because it was come to after hearing parol evidence which ought not to have been given. The point is, whether or not this was a proper case for parol evidence. If it is a proper case, the Court of Exchequer Chamber were wrong in disregarding the verdict.

The LORD CHANCELLOR.-This was an appeal under the Common Law Procedure Act, 1854, upon a case stated by the parties according to the directions of that act. The question arises in this way: a gentleman of the name of Lyle, since dead, who is represented by his executors, was the lessee of a certain mine in Cornwall. I do not know if the word "lessee" is the proper word to use, but he had the right to work the mine. We will call him the lessee. It was called the West Basset Mine. The defendants were the occupiers of a mine immediately south of the West Basset Mine, called the South Wheal Frances Mine, and the complaint of the plaintiff was that the defendants, the occupiers of this South Wheal Frances Mine, had been guilty of a trespass in working beyond their northern boundary into the mine of the plaintiff. On the trial of the action, the jury found for the plaintiff, subject to leave being reserved to set aside the verdict, and to enter the verdict for the defendants, if the Court should be of opinion that the evidence did not warrant such a finding; and eventually the case came before the Exchequer Cham

ber, which held that upon the evidence it was not competent for the jury to find for the plaintiff, and that consequently the verdict ought to be entered for the defendants. The question is whether that decision was right.

The question for the jury was, whether the locus in quo upon which the mine was worked by the defendants was parcel of the mine of which a sett was granted to the appellant in 1852. Parcel or no parcel is a question for the jury. It was properly left to them. But the Judge was bound to explain to them, for their guidance, what was the true construction of any documents necessary for the decision of the question "parcel or no parcel." In this case the dispute arose between the conterminous grantees. The plaintiff was grantee of a mine to the north, the defendants of a mine to the south. The defendants had worked to the north of their mine, and the question was, whether they had gone beyond the boundary line which divided their mine from that of the plaintiff. The boundary line of the plaintiff's mine, which separated it from the mine of the defendants to the south is described in the sett made to him in 1852. It was the duty of the Judge to decide what was the true meaning of the language there used for describing the boundary line. But, in order to adapt the description contained in a lease or other instrument of a boundary line (whether expressed by words or by a diagram), to the line in nature meant to be designated by the description, it is necessary to have recourse to parol evidence. The description in the deed cannot otherwise be identified with the thing intended to be described. In this case, therefore, the parol evidence was properly admitted for the purpose of shewing whether the place in which the trespass complained of was committed was or was not included in the sett granted to the plaintiff. We have no information as to what the direction was which the Judge gave to the jury; but the case was left to them on the terms that if they should find for the plaintiff, the verdict should be entered for him, and if according to the evidence they were bound to find for the defendants, then the verdict should be entered for them. The jury found for the plaintiff, but the Court of Exchequer

Chamber has decided that the jury, on the evidence before them, were bound to find for the defendants; and whether the Court was right in that decision is what we have to determine. The whole question turns on what is the true boundary line between the two mines. In the plaintiff's sett of 1852 his southern boundary is described as "a straight line of about 355 fathoms from John Vincent's house, at the south-western extremity of the sett, to a boundstone at the north-western extremity of South Basset sett." It was the duty of the Court to interpret these words for the guidance of the jury. But of their meaning, aided by proof of the facts that there is near the southwest extremity of the plaintiff's sett a house called John Vincent's house, and that there is at the north-western extremity of South Wheal Basset sett a boundstone, there can be no doubt. The boundary line which the jury were bound to take as that indicated in the plaintiff's sett was a line from John Vincent's house to the boundstone in question. This, however, does not make the exact line clear. The boundstone may for practical purposes be treated as a mere point, but this cannot be said of John Vincent's house, the depth of which from north to south is shewn by the evidence to be twenty or twenty-five feet. It is obvious, therefore, that the line, if drawn from the north-east corner of the house, will give the plaintiff a less quantity of mine than if drawn from the south-east. The question, therefore, whether the triangular space included between two lines drawn from the boundstone-one to the north-east, the other to the south-east corner of John Vincent's house-being the locus in quo, was or was not parcel of the mines included in the plaintiff's sett cannot be solved by a mere interpretation of the language of the sett of 1852, for that language is equally consistent with a line drawn from the north-east as with a line drawn from the south-east corner of the house. The jury, therefore, even supposing them to have received from the Judge a proper interpretation of the language of the sett of 1852, and to have acted upon it, were yet obliged, in deciding the question of parcel or no parcel, to have recourse to further evidence.

The evidence offered consisted, inter

alia, of a prior sett in the year 1835, of the same mine as that which was granted to the plaintiff in 1852; and, secondly, of two setts in 1843, of the mines now worked by the defendants, and which, as I have already stated, adjoin on the plaintiff's mine, the southern boundary of the latter constituting the northern boundary of the former. In the sett of 1835, the language used in designating the boundaries may be taken as being identical with that afterwards used in the sett of 1852, save only that on the back of the sett of 1835 there is a map descriptive of the premises included in it, and the description of the parcels is followed by the words, "which said premises are particularly delineated by the map on the back of this sett."

It was the duty of the Judge to explain to the jury the true meaning of this deed, just as it was of the deed of 1852, and, in construing this deed of 1835, the Judge, or, according to the liberty reserved at the trial, the Court was bound to look at the map as forming part of the deed. Now, on the map the boundary line is clearly drawn. from the north-east corner of John Vincent's house, and the Judge or the Court were bound to treat this as if in the description of the parcels the language had been, not a line drawn from John Vincent's house, but a line from the north-east corner of John Vincent's house. This shews that the locus in quo was not included in the sett of 1835. But if not included in the sett of 1835, it could not be included in that of 1852, for in the setts of 1843, under which the defendants derive title, their northern boundary is clearly made to be the same as the southern boundary of the plaintiff's sett established in 1835. The result is, that it is immaterial to consider what was the boundary line intended to be drawn in 1852, for even if it had been expressly designated as a line drawn from the south-east corner of the house, that would not have warranted a finding that the locus in quo was part of the plaintiff's sett. Lady Basset had already in 1843 granted to those under whom the defendants claim title a right to take all minerals south of the line adopted in 1835, i. e. south of a line from the north-east corner of John Vincent's house. Therefore, she had no power to grant to the plaintiff