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* 1816.

GOUGER

JOLLY.

his notice will not protect him, every thing that is brought to
Beck v. Evans, ante. A loss him, for a reasonable sum to
arising from the personal de be paid for the same carriage ;
fault of the carrier, is not and cannot extort what he
within the scope of such no pleases, per Lawrence, J. in
tice, which was meant to ex Harris v. Packwood, 3 Taunt.
empt the carrier from losses by 272.
accident or chance, &c. Lyon See likewise, as to the re-
Wells, 5 East 428.

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.

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1816.

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been delivered to the defendant, or left at his house. improved in

STEWART V. SMITH.
THIS action was brought to recover 281. the

Parties may

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.

There was

no evidence that defendant was such owner. The fact of his having offered his lease for sale long after the

1816.

STEWART

v. SMITH.

to

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

1816.

evidence will be for the Jury ; but I think the plain-
tiff entitled to recover.

STEWART

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Best serjeant, and Onslow, for the plaintiff.

Vaughan, serjeant, and Ross, for the defend

ant.

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

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1816.

STEWART

SMITH.

in what proportions, vide sec for twenty-one years, at a:
tion. It then directs, that,

peppercorn rent for the first
within ten days, &c, after such · half year, and a rack rent for
party wall shall be built, such the rest of the term, who, by
first builder shall leave at such agreement, was to put the pre-
adjoining house a true account mises in repair, and who cove-
in writing of so much thereof nanted to pay all taxes, &c. have
for which the owner of such ing assigned his term for a small
adjoining house shall be liable sum in gross, was held not to
to pay, and also an account be liable to pay the expenses
of other expenses and costs; of a party wall, either by the
“whereupon it shall be lawful provisions of the statute, or
for the tenant or occupier of by his covenant; but that the
such adjoining building to pay charge must, in such case, be
such proportional part, costs, borne by the original land.'
expenses, &c.; and to deduct lord. Southall v. Leadbetter,
the same out of his rent, &c.3 T. R. 458.' So, notwith-
If the expenses be not paid standing the lessee has in-
within twenty-one days after proved the house demised, the
demand, a remedy is given lessor of the premises, at rack-
against the owner, by action rent, (there being no other
of debt, or on the case. Now person entitled to any kind of
the result of the cases upon rent,) is liable to contribute,
the construction of the above and not the tenant. Beard-
clauses seems to be this.

more v. Fox, 8 T. R. 214.
1. That the manifest inten Secus, if such lessee, at rack
tion of the legislature was, to rent, uiderlet the house at an
throw this burden on the les. advanced rent. He is then
sees of building leases, by to be considered as the owner
whom the value of the estates of the improved rent, which,
is considerably improved, and in the terms of this act of par-
who afterwards make under liament, stands contradistin-
Jeases, reserving improved guished from some other rent.
rents. Nor does it make any Sangster v. Birkhead, 1 B, and
difference whether such per-

P. 303. Nor would the ope.
son continue lessee of the term, ration of the statute be varied
or sell his lease for a sum in by any covenants for repair
gross;
in which latter case,

entered into between such
he seems equally to be within landlord and his tenant. Ibid.
this act. But, where a lessee It is the owner of the im-

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