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his notice will not protect him, every thing that is brought to
sponsibility of carriers, and the 3. Although there is nothing manner of declaring in actions unreasonable in a carrier re. brought against them, Clarke quiring a greater sum when F. Gray, 6 East 564. Clayhe carries goods of a greater ton v. Hunt, 3 Campb. 27. value, he is not permitted, by Cobden v. Bolton, 2 Camph. law, to charge what he pleases. 108. Buttler v. Heane, % A carrier is liable to carry Campb. 415.
been delivered to the defendant, or left at his house. improved in
STEWART V. SMITH.
come to an moiety of the expense of erecting a party agreement to wall between the plaintiff's house and a house oc- the formalities cupied by the defendant. Upon the evidence, it of the Building appeared that the old party wall being out of repair, occupier of it became necessary to rebuild it ; that the plain- owner of the
improved rent tiff applied to the defendant, who enquired what of which is the expense would be; and, upon being told his rebuilding of proportion, said, “ Very well, I shall expect to pay oparty wall, what is right and fair.” About six weeks after the sumes the re. wall was rebuilt, the plaintiff called on defendant by a promise, for 101. in part payment ; the defendant said it was there is a sufit? not convenient for him to pay. It appeared that ation to sup. the defendant paid rent to two persons, (viz.) 321. port an action to one, and 181. to another : the wall was rebuilt mise, resulting in September 1815. Since the action was brought, pation of the the defendant has offered his lease for sale for 3001. mises; and this It was admitted that no notice of accounts, as di- is evidence to rected by the act, (14 Geo. III. c. 78. § 41.) had Jury that he is
from his occu
a case where
Vaughan, serjeant, for the defendant, made dence of his two points :-). The Alst section of the Build- having subse
quently offered ing Act throws the burthen of rebuilding and his lease to sale repairing party walls upon the owners of the money in gross. improved rent.
no evidence that defendant was such owner. The fact of his having offered his lease for sale long after the
wall was rebuilt, did not prove his original liability. Had he even sold his lease for a premium, it would not make him liable as owner of an improved rent; for it is in evidence that he pays rent to two distinct persons, one or other of which rents, in the absence of evidence, may be presumed to be an improved rent.—2. His promise
pay must be construed with reference to his legal liability. If the obligation to repair be in another person, such promise, not being in writing, was void by the statute of frauds. But the effect of the words is not a general promise ; nor does it dispense with the provisions of the Building Act. “ I shall pay what is right and fair.” This is no dispensation of the means prescribed by the statute for ascertaining what is “right and fair.”
Gibbs, C. J.—The act requires certain forms which must be complied with against an adverse occupier. But neither the Act of Parliament, nor the forms, are very clear and precise. I agree that the owner of the improved rent is alone liable. But there are two questions in this case :- 1. Have not the parties come to an understanding to dispense with the formalities of the Building Act ; which they may do? 2. Has not the defendant made himself liable by his promise ? He desired to know what the expense would be, and agreed to pay his moiety.
his moiety. He assumes the responsibility upon himself; and, as occupier, there is sufficient consideration for him to make such agreement; supposing him not to be the owner of the improved rent, though there is a strong presumption that he is such owner. The construction of the
evidence will be for the Jury ; but I think the plain-
Best serjeant, and Onslow, for the plaintiff.
Vaughan, serjeant, and Ross, for the defend
In the next term, a motion intention, by delivering a copy was made for a new trial, but of such notice, &c. In this the Court unanimously concur.
notice he is to name his surred in opinion with the L. C.J. veyors; the time of attendance; It is to be lamented that the and to require the other owner 14th Geo. III. c. 78., an act to appoint two other surveyors of parliament, of the last im. to meet them, at the appointed portance in cities and towns, time and place, to certify the should in some of its provisions state of the party wall, &c. be so difficult of application; The act then makes provisions and, in all, so hard to be un in case of the default of one derstood. Cases are constantly party, by directing the attendoccurring upon the construc ing surveyors to certify the tion of the clauses, particu. state of the premises to the larly at Nisi Prius. The result justices at the quarter sessions, of what has hitherto been de- &c.; the certificate to be filed; termined seems to be this. an appeal to be permitted with The act provides, that every.
in a reasonable time, &c.; if owner of a house who shalli no appeal, or if the certificate think it necessary to pull down be confirmed on appeal, the and rebuild any party wall, party who has followed the in case the owner of the ad provisions in the act, may pult joining house will not agree down, rebuild, &c. The 41st touching the same, shall give section then directs how the three months' notice in writing expenses of the party rebuildto the owner if known, or, ing are to be reimbursed by otherwise, to the occapier of the owner of the adjoining such adjoining house, of his house ; to what amount, and
in what proportions, vide sec for twenty-one years, at a:
peppercorn rent for the first
more v. Fox, 8 T. R. 214.
P. 303. Nor would the ope.
entered into between such