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Colonial Cases

Gearing v. Emery, 1881

Gearing v. Emery

United States Consular Court, Chinkiang
Smithers, 6 September 1881
Source: North China Herald, 9 September 1881

Before E. J. Smithers, Consul and Acting Judge.
J. G. W. Gearing, on behalf of the firm of Gearing and Company, Agents, etc., Petitioner,
David Alfred Emery, Defendant.
  Application for an injunction.
  Hearing of the case as set for 6th September, 1881.
    E. Starkey, sworn and examined by defendant, testified as follows:- On or about the 5th of April, 1880, I sent the key of the godown or what I understood to be the key, to the defendant.  I don't remember if there was a lock on the gate belonging to the partition wall.  During the time I acted for Carnie and Company I do not know if they contemplated removing the wall, but consider they had a right to remove it.  The wall as it now appears upon the plan was not originally there at the time the plan was made, but was afterwards marked upon it.
  M. S. Jerdein, sworn, and examined by the petitioner, - as a former acting agent of the property in question, I consider that I would have been bound to remove the wall if my principals ordered me to do so.  At the time I was acting agent of the owners of the property there were two entrances to godown R.  I do not know if any of these entrances have been removed.  I do not consider that the godown would be unsafe if the wall were removed.
Judgment of the Court.
  The authority of this Court is invoked in this proceeding to restrain the defendant from interfering in the removal of a partition wall, located on Concession Lot No. 1 in Chinkiang, for which the petitioner, together with his firm, are the authorised agents of the owners.
  The petitioner sets forth in his petition, among other things, that his firm leased to the defendant a certain godown on the said Concession Lot, designated on the plan of the property as Godown K, the lease bearing date of 1st January, 1881.  That at the time of the execution of the said lease there happened to be a partition wall across the passage way leading to the said godown, but which said partition wall was in no way connected with the premises let to the defendant, and that the petitioner now desires to remove the said wall.  That the defendant is not justified in keeping the door of the said wall locked thereby preventing the petitioner from having free access to the passage way around the said godown.
  The defendant in his answer admits the allegations of the petition, as far as they relate to the partition wall not forming a part of the premises demised to him.  And as a part of his answer, he includes copies of certain letters received from the petitioner dated August 20th 1881, together with copies of his replies thereto.
  The question, as to whether by the terms of the lease under which this godown was hired anything more passed to the defendant than the simple building, is one in my judgment, of legal construction for which there are well defined rules governing Courts of both law and equity.  Whereas, for instance, words are used in any instrument, to which either a comprehensive or a restrictive meaning may be attached, the former will be accepted rather than the latter, unless it should clearly appear that the intention of the parties would thereby be defeated.  In the present contract, the word godown is employed as descriptive of the building which was the subject-matter of the lease.  Now it is clear to my mind, that this term was used in its comprehensive sense and carries with it the partition wall and the door attached to it, which it has been shown formed the only means of access to the building, and, therefore, is a necessary appurtenance to its use.  It is, moreover, in evidence, that the defendant was a tenant of this same property, under a former lease dating from the 5th of April, 1880.  Had the petitioner desired to remove the wall, it became clearly his duty to have inserted in the new lease of January 1st, 1881, a covenant to this effect.  The petition must be dismissed with costs.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School