1816. GOUGER 2. JOLLY. his notice will not protect him, Beck v. Evans, ante. A loss arising from the personal default of the carrier, is not within the scope of such notice, which was meant to exempt the carrier from losses by accident or chance, &c. Lyon Y. Wells, 5 East 428. 3. Although there is nothing unreasonable in a carrier requiring a greater sum when he carries goods of a greater value, he is not permitted, by law, to charge what he pleases. A carrier is liable to carry every thing that is brought to him, for a reasonable sum to be paid for the same carriage; and cannot extort what he pleases, per Lawrence, J. in Harris v. Packwood, 3 Taunt. 272. See likewise, as to the responsibility of carriers, and the manuer of declaring in actions brought against them, Clarke v. Gray, 6 East 564. Clayton v. Hunt, 3 Campb. 27. Cobden v. Bolton, 2 Campb. 108. Buttler v. Heane, 2 Campb. 415. 1816. STEWART V. SMITH. Parties may come to an agreement to the formalities dispense with of the Building Act. If the occupier of premises, the HIS action was brought to recover 281. the moiety of the expense of erecting a party wall between the plaintiff's house and a house occupied by the defendant. Upon the evidence, it appeared that the old party wall being out of repair, it became necessary to rebuild it; that the plain- owner of the tiff applied to the defendant, who enquired what of which is the expense would be; and, upon being told his liable to the Very well, I shall expect to pay proportion, said, " what is right and fair." About six weeks after the wall was rebuilt, the plaintiff called on defendant improved rent rebuilding of a party wall, voluntarily assumes the responsibility, by a promise, (not in writing) port an action mise, resulting on such pro from his occu for 10. in part payment; the defendant said it was there is a suffnot convenient for him to pay. It appeared that ation to supthe defendant paid rent to two persons, (viz.) 321. to one, and 18. to another: the wall was rebuilt in September 1815. Since the action was brought, the defendant has offered his lease for sale for 300l. It was admitted that no notice of accounts, as directed by the act, (14 Geo. III. c. 78. § 41.) had been delivered to the defendant, or left at his house. pation of the mises; and this is evidence to adjoining pre be left to the Jury that he is owner of the improved rent. Especially in a case where there is evi made dence of his Build- having subsequently offered and his lease to sale the money in gross. for a sum of Vaughan, serjeant, for the defendant, two points-1. The 41st section of the ing Act throws the burthen of rebuilding repairing party walls upon the owners of 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. 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 to 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. 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 tiff entitled to recover. Verdict for the plaintiff. Best serjeant, and Onslow, for the plaintiff. Vaughan, serjeant, and Ross, for the defend ant. In the next term, a motion was made for a new trial, but the Court unanimously concur. red in opinion with the L. C. J. It is to be lamented that the 14th Geo. III. c. 78., an act of parliament, of the last importance in cities and towns, should in some of its provisions be so difficult of application; and, in all, so hard to be understood. Cases are constantly occurring upon the construction of the clauses, particularly at Nisi Prius. The result of what has hitherto been determined seems to be this. The act provides, that every owner of a house who shall think it necessary to pull down and rebuild any party wall, in case the owner of the adjoining house will not agree touching the same, shall give three months' notice in writing to the owner if known, or, otherwise, to the occupier of such adjoining house, of his intention, by delivering a copy of such notice, &c. In this notice he is to name his surveyors; the time of attendance; and to require the other owner to appoint two other surveyors to meet them, at the appointed time and place, to certify the state of the party wall, &c. The act then makes provisions in case of the default of one party, by directing the attending surveyors to certify the state of the premises to the justices at the quarter sessions, &c.; the certificate to be filed; an appeal to be permitted within a reasonable time, &c.; if no appeal, or if the certificate be confirmed on appeal, the party who has followed the provisions in the act, may puli down, rebuild, &c. The 41st section then directs how the expenses of the party rebuilding are to be reimbursed by the owner of the adjoining house; to what amount, and 1816. STEWART v. SMITH. in what proportions, vide section. It then directs, that, within ten days, &c. after such party wall shall be built, such first builder shall leave at such adjoining house a true account in writing of so much thereof for which the owner of such adjoining house shall be liable to pay, and also an account of other expenses and costs; 66 whereupon it shall be lawful for the tenant or occupier of such adjoining building to pay such proportional part, costs, expenses, &c.; and to deduct the same out of his rent, &c." If the expenses be not paid within twenty-one days after demand, a remedy is given against the owner, by action of debt, or on the case. Now the result of the cases upon the construction of the above clauses seems to be this. 1. That the manifest intention of the legislature was, to throw this burden on the lessees of building leases, by whom the value of the estates is considerably improved, and who afterwards make underleases, reserving improved rents. Nor does it make any difference whether such person continue lessee of the term, or sell his lease for a sum in in which latter case, gross; he seems equally to be within this act. But, where lesses for twenty-one years, a at peppercorn rent for the first+ half year, and a rack rent for the rest of the term, who, by agreement, was to put the premises in repair, and who covenanted to pay all taxes, &c. having assigned his term for a small sum in gross, was held not to be liable to pay the expenses of a party wall, either by the provisions of the statute, or by his covenant; but that the charge must, in such case, be borne by the original landlord. Southall v. Leadbetter, 3 T. R. 458. So, notwithstanding the lessee has improved the house demised, the lessor of the premises, at rackrent, (there being no other person entitled to any kind of rent,) is liable to contribute, and not the tenant. Beardmore v. Fox, 8 T. R. 214.› Secus, if such lessee, at rack rent, underlet the house at an advanced rent. He is then to be considered as the owner of the improved rent, which, in the terms of this act of par-> liament, stands contradistinguished from some other rent. Sangster v. Birkhead, 1 B, and P. 303. Nor would the operation of the statute be varied by any covenants for repair entered into between such landlord and his tenant. Ibid. It is the owner of the im |