Common Pleas. JONES v. H. T. 1865. occupancy with those which were named. There is no small conflict of authority in the olden cases on the subject :-Hill v. Grange (a); Higham v. Baker (b); Loftes v. Palmer (c); Doe v. Webster (d); Boocher v. Samford (e); Yates v. Clincard (f); Smithson v. Cage (g); 1 Saund., p. 400 a, n. 2; Buck v. Nurton (h); Ongley v. Chambers (i). WHELAN. Upon these authorities I should be of opinion that, if the premises of this lease contained the word " appurtenances," or any equivalent term, the finding of the jury on the second question would entitle the defendant to retain his verdict. But I have already pointed out that no such term does occur in the premises. It does in the habendum; but we all know that a new subject cannot be brought in by the habendum, which may restrict and explain, but cannot enlarge the premises. Thus the whole of that class of authority on which I have been commenting, and which turned entirely on the force of these general terms, is excluded from application to the present case; and to sustain his verdict the defendant is driven to show that the locus in quo can be ranged under some one or other of the specific heads of description of which alone the enumeration of parcels in the premises in this lease is composed. The defendant's Counsel, being asked by the Court to point out which of the heads of description they relied on for that purpose, answered "the dwelling-house." They might I think, with at least equal propriety, have said "the mill." It is clear, having regard to the finding of the jury respecting the garden, that, unless the spot in question can be brought under either of those two denominations, the defendant has no case. Therefore the class of authority which applies here is not the one which I have been just considering, but the much less numerous one which has settled what it is which is capable of passing under the word "house" or "messuage" simpliciter. (a) 1 Plowd. 164. (c) Palmer's Rep. 375. (e) Cro. Eliz. 113. (b) Cro. Eliz. 15. (d) 12 Ad. & El. 442. (f) Ibid, 704. (g) Cro. Jac. 526. (h) 1 Bos. & Pul, 53, (i) 1 Bing. 483. Now, with respect to that, it has been settled, since the time of Lord Coke, and much earlier, that, under "messuage" or "house," will pass not only the buildings, but the curtilage and garden also; the latter, however (the garden), not until after some doubt. But, from those times to the present, so far as I am aware, no other subject whatever has ever as yet been held to be comprised under those terms; and certain it is that land will not pass under them, merely because of an occupancy with the house, however close and prolonged. Is this locus in quo then part of the curtilage, or of the garden? The garden is excluded by the finding of the jury. The curtilage is in my opinion much more clearly out of the question, because that means properly the court which the buildings surround, or which immediately adjoins them. But it may be said, though this is not part of either garden or curtilage, yet it may be something so identified with the house as to fall under the same principle which has brought in the garden and curtilage; and if that were so, I think it ought to abide the same rule. Then the question presents itself, what is that principle? In my opinion that principle is necessity. The curtilage and garden were held to be parcel of the house, because they were necessary to its enjoyment. Nothing short of that neither pleasure nor convenience-would do: Carden v. Tuck (a); Ferguson v. London, Brighton, and S. C. Railway Co. (b). Well then, that being the principle, the case is brought to this, can the Court now, on the facts found by the jury, predicate of this slip of ground that it was a thing of necessity to the enjoyment of the house or of the mill? Why, in the first place, no such thing is found by the jury, nor was any such question left to them, or asked to be left to them. Therefore, in any case, the verdict for the defendant cannot stand. Then arises the question, what course ought we now to take? If we saw the least reason to believe that the defendant's Counsel had made a slip in not calling on the Chief Justice to leave that question to the jury, or that there was evidence on which such a case could have been reasonably founded, we would merely set aside the verdict and direct a new trial. But we are clearly of (b) 33 Law Jour. 29. 64 L (a) Cro. Eliz. 89. H. T. 1865. JONES v. WHELAN. Common Pleas. JONES บ. WHELAN. H. T. 1865. opinion—at least, speaking for myself, I am clearly of opinion, that there was no colour for such a case; and that if such a direction had been asked for it would have been the duty of the Judge to have refused it, upon the ground that there was no evidence of it to go to the jury. I have already mentioned the uses to which alone it appeared in proof that the defendant used to put the place, though he went fully into his case in that respect; a depository for the refuse of his garden, or a place to turn calves now and then to graze. Well, these are matters of convenience, but they are plainly not of necessity. As a passage it led nowhere that the defendant had a right to go to. There was clearly, therefore, nothing to be tried which was not tried. The questions sent to the jury were the only questions which the evidence warranted, but the facts supplied by the answers to them fall short of what was necessary to sustain the defendant's case. The advantage of the course which was taken at the trial is, as I have already observed, that, instead of directing a new trial, we are enabled to see our way clearly on this motion, to bring the litigation to a close, by directing the verdict to be entered for the plaintiff, with nominal damages, pursuant to the leave reserved, which will accordingly be the rule of the Court. M. V. 1863. WILLIAM LUNHAM บ. GEORGE HENRY WAKEFIELD and JOSEPH GODSDEN NASH.* (Queen's Bench.) DEMURRER.-Summons and plaint:-That, at the time of the committing of the grievances hereinafter mentioned, the plaintiff was not indebted to the defendants in the sum of £220. 7s. Od., or in any sum amounting to or extending to the sum of £50, or in any sum whatsoever; yet the defendants, maliciously contriving and intending to injure the plaintiff, and to make him commit an act of bankruptcy, and to sue out thereon a commission of bankruptcy against him, and to have him thereupon adjudicated bankrupt, Dec. 7, 17. H. T. 1864. Jan. 12. The plaint alleged that the defendant W., having made demand of a certain sum of money on the plaintiff L., according to the form in the schedule to Irish Bankruptcy and Insolvency Act, falsely and ma without rea sonable or probable cause, had a summons issued or by reason of the fear of such proceedings to compel him to liciously, and submit to the unjust demand made on him for the sum of £220. 7s. Od., hereinafter mentioned, and falsely alleged to be due by the plaintiff to the defendants, falsely, maliciously, and without reasonable or probable cause, to wit, on the 8th day of October 1862, made or caused to be made an account in writing of the pretended particulars of a pretended demand of the defendants on the plaintiff out of the Bankrupt Court, for the pearance of L.; personal ap that the bankruptcy pro determined in favour of L.; and that L. for the sum of £220. 7s. Od., for goods falsely pretended to have ceedings were been sold and delivered by the defendants to the plaintiff, with a notice thereunder requiring immediate payment thereof, purporting had suffered much in his credit and re putation by having had to appear at the said Court. To this defendant demurred Held (dissentiente HAYES, J.), allowing the demurrer, that the plaint disclosed no cause of action. Held also, that the suing out a commission of bankruptcy is not analogous to the proceeding by trader debtor summons. Held (per HAYES, J.), that special damage was sufficiently averred. • Before O'BRIEN, HAYES, and FITZGERALD, JJ. M. V. 1863. to be in the form, or to the effect specified in the schedule (F) to a Queen's Bench certain Act of Parliament passed in the twenty-first year of the LUNHAM v. reign of her present Majesty, intituled "The Irish Bankrupt and WAKEFIELD. Insolvent Act, 1857;" and afterwards, on the 7th day of November 1862, falsely and maliciously, and without any reasonable or probable cause, caused the said particulars of demand and notice requiring payment to be served at the plaintiff's place of abode; and afterwards, falsely and maliciously, and without reasonable or probable cause, caused to be filed in the office of the Court of Bankruptcy and Insolvency in Ireland, an affidavit subscribed and sworn on behalf of the defendants by the said George Henry Wakefield, one of the defendants, and one Michael Collins, purporting to be in the form required by the said Act, in which affidavit the said George Henry Wakefield, on behalf of said defendants, and with the privity and assent of one Joseph Godsden Nash, amongst other things, falsely, maliciously, and without reasonable or probable cause, swore that the plaintiff was justly and truly indebted to the defendants in the sum of £220. 7s. Od., for goods sold and delivered; and thereupon the defendants falsely and maliciously, and without reasonable or probable cause, procured the Honorable Judge Lynch, being one of the Judges of the Bankruptcy and Insolvency Court, to issue a summons in pursuance of the said Act, whereby the plaintiff was required personally to be and appear before the Court of Bankruptcy and Insolvency at the said Court, Four-courts in the city of Dublin, on the 14th day of November 1862, at twelve o'clock, for the purpose of ascertaining in manner and form prescribed by the Irish Bankrupt and Insolvent Act, 1857, whether or not the plaintiff admitted the said demand of the defendants, who claimed of him the sum of £220. 7s. Od., for a debt, or any and what part thereof; or whether the plaintiff verily believed he had a good defence upon the merits to the said demand, or to any and what part thereof; and the defendants falsely, maliciously, and without any reasonable or probable cause, caused a copy of the said summons to be served on the plaintiff. And the plaintiff says that he attended in pursuance of the said summons at the said Court, before the Honorable Judge Lynch, one of the |