proved rent, and not of the ground rent, who is made liable by this act. Peck v. Wood, 5 T. Rep. 303. But where the tenant covenanted to pay a reasonable share and proportion for repairing party walls, &c., and it became a necessary inference from the covenants, that the landlord should receive a certain net yearly rent, clear of all deductions, &c. during the lease, it was held, under the conditions of such contract, that the tenant, and not the landlord, should pay the expenses of a party wall. But it was upon this principle, as observed by Kenyon, L. C. J., in the case, that "modus et conventio vincunt legem." Barrett v. Duke of Bedford, 8 T. R. 602. But, though the operation of the statute is not varied by a general covenant to repair on the part of the tenant; and the landlord, (or whoever be the owner of the improved rent,) is the party bound to contribute, he is, nevertheless, liable only to reimburse his tenant money paid by him to the other owner, for such works as are authorized to be done by such owner, in respect of such adjoining house. Robinson v. Lewis, 10 East 227. The act of parliament gives the tenant liberty to deduct payments, made, by virtue of this act, out of his rent: but questions may arise whether his immediate landlord be the person liable; he may be lessor, without being owner of the improved rent. In Sangster v. Birkhead, supra, Eyre, C. J. looking to this point, says, "I think it was intended by the legislature that the tenant should pay a moiety of the expense to the person building the wall, and reimburse himself by deducting the amount out of the rent of his immediate landlord; leaving it to him to make his claim on such other persons as he may think liable. This appears to me the best construction for putting the business in a practicable shape. It is easy to see that this is an ill penned law, and its meaning is left uncertain." He is considered to have the improved rent who receives more than the person of whom he takes the premises and, if there be only one year of the term to come, if it have been originally demised on an improved rent, the lessor of such term would be liable. It seems strange, however, that the legislature should think that there must be an improved rent in respect of every house. 2. With respect to the other 1861. STEWART 2. SMITH. 1816. STEWART v. SMITH. clauses of the act which bear on the present point, a few words will suffice. The three months' notice, required by section 38, is only necessary where the person (who at the time when it is required to build, &c. is liable to pay,) cannot agree with the owner of the adjoining house. Peck v. Wood, 5 T. R. 130. But before an action can be brought to recover a proportion of the expenses of building a party wall, the accounts prescribed by sect. 41, must be delivered, whether the house be occupied by the owner or the tenant; and a formal demand of the money must be made twenty. one days before the action is brought. Philp v. Donati, 2 Taunt. 62. 3. With respect to the property in party walls, with regard to which some questions have arisen, the rule is this:-If two persons have a party wall, one half of the thickness of which stands on the lands of each, they are not, therefore, tenants in common of the wall, nor of the land on which it stands, although the wall was erected at the joint expense of the two proprietors. For, the statute, though it gives each party certain rights in a wall built in this way, does not make it a common property; it only confers on each a right to use it for certain purposes. Each party, for an injury done to that part of the wall which stands on his own land, must, of consequence, have the or. dinary remedy: but the parties are severally owners of their respective lands, as before: each is entitled to an easement on the wall in the land of the other but there is no transfer of property; and the property of the wall ensues the property of the land on which it stands. See Matts v. Hawkins, 5 Taunt. 20. and Moore v. Clarke, 5 Taunt. 90. 1816. TRO GURR v. RUTTON. he a In an action property whichthe bank. rupt is alleged to have had in position, as the at the time of competent for ruptcy, it is sideration for the property, to give evidence of a contrary reputa tion, and to resist the claim ROVER, by the assignee of one Chapman, by aci a bankrupt, to recover the possession of nee of a bankrupt, claiming certain property alleged to have belonged to Chapman, before his bankruptcy. The question turned upon a reputed ownership: the defendant rented a large farm in the island of Shepey, on which he depastured several thousand sheep; but, being obliged to quit his farm, and remove his stock, hired of Chapman, who carried on the business of farmer and butcher, near Faversham, a tract of land of 170 acres, in Ham marshes. The bankrupt, at this time, was tenant to a person of the name of Bloxland. The defendant agreed to give Chapman an advance on his original rent, and to take all his crops and stock; which he bought and paid for at a a valuation : an agreement was then made between them that Chapman should continue on the farm, and act as the defend- upon those ant's manager and bailiff; that he should buy and sell stock for him, and superintend the farm as he had been heretofore accustomed. the part of the plaintiff, evidence was given that the reputation amongst the servants and neighbours was, that Chapman was the owner; that no visible change had taken place in his circumstances; and that they continued to act towards him as formerly. On the part of the defendant, it was proposed to give a body of evidence contradicting this reputation; and to shew that Rutton paid the On of the plaintiff under the statute 21 Jac. I. c. 19. s. 11. grounds. 1816: GURR taxes of the farm; that his name had been substituted for Chapman's in the collector's books; and that he was considered by a number of tradesmen RUTTON. who supplied the farm, as the sole owner and proprietor of the stock, &c. V. Shepherd, S. G. objected to this evidence: the question was, had not the defendant left the bank-" rupt in possession of property which tended to delude the world, and to induce an opinion that he continued owner as before. The fact of his being in possession was proved; and a reputation, contrary to the fact, could not be admitted. GIBBS, C. J.-I think this is a case in which I am bound to receive the evidence offered. There is no question that a good consideration was paid by the defendant: but he is charged with having left the property in the possession, order, and disposition of Chapman, by means of which he gains the reputation of continuing the owner as he had heretofore been. Now what is reputation of ownership? It is made up of the opinions of a man's neighbours; it is a number of voices, as it were, concurring upon one or other of two facts. Are we to count the voices upon one side, and to pay no attention to the numbers on the other? If we admit reputation, that is to say, the opinion of a certain number of neighbours to impeach the defendant's claim, are we not to admit the opinions which favour it? The Jury must look to the facts upon which the opinions on both sides are formed; but I think the evidence admissible. The defendant afterwards had a verdict upon the merits. Shepherd, S. G. and Bayly, for plaintiff. Lens and Vaughan, serjeants, and Holt, for defendant. The following is the section of the 21st Jac. I. c. 19. s. 11. on which the question turned : "And for that it often falls out that many persons, before they become bankrupts, do convey their goods to other men upon good consideration, yet still do keep the same, and are reputed the owners thereof, and dispose of the same as their own: be it enacted, that if at any time hereafter any person or persons shall become bankrupt, and, at such time as they shall so become bankrupt, shall, by the consent and permission of the true owner and proprie tary, have in their possession, order, and disposition, any goods or chattels, whereof they shall be the reputed owners, and take upon them the sale, alteration, or disposition, as owners; that in every such case the said commissioners, or the greater part of them, shall have power to sell and dispose of the same to and for the benefit of the creditors which shall seek relief by the said commission, as fully as any other part of the estate of the bankrupt." 21 Jac. I. c. 19. § 11. The cases upon this section are very numerous. Those that bear upon the present point will be shortly referred to. Where by contract between B. and the defendant, B. agreed, on payment to him. of a sum certain, to convey to the defendant a dwelling-house, and to deliver possession of all the household furniture and stock, and that after formal possession delivered to the defendant, B. should be allowed to remain in possession for three months without paying rent; which agreement was notorious in the neighbourhood, and the money was paid by the defendant, and a formal delivery made to him, and B. afterwards left in possession according to the agreement, who became bankrupt whilst he so remained in possession, and before the expiration of three months. |