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proved rent, and not of the

payments, made, by virtue of ground rent, who is made

this act, out of his rent : but liable by this act. Peck v. questions may arise whether Wood, 5 T. Rep. 303. But his immediate landlord be the where the tenant covenanted

person liable; he may be lesto pay a reasonable share and

sor, without being owner of the proportion for repairing party improved rent. In Sangster walls, &c., and it became a v. Birkhead, supra, Eyre, necessary inference from the

C. J. looking to this point, covenants, that the landlord

says, “I think it was inteaded should receive a certain net by the legislature that the teyearly rent, clear of all de nant should pay a moiety of ductions, &c. during the lease, the expense to the person it was held, under the condi. building the wall, and reimtions of such contract, that burse himself by deducting the the tenant, and not the land. amount out of the rent of his Jord, should pay the expenses immediate landlord ; leaving of a party wall. But it was it to him to make his claim on upon this principle, as observed such other persons as he may by Kenyon, L. C. J., in the think liable.

This appears to case, that “ modus et conven me the best construction for tio vincunt legem.Barrett v. putting the business in a pracDuke of Bedford, 8T.R. 602. ticable shape. It is easy to But, though the operation of see that this is an ill penned the statute is not varied by a law, and its meaniug is left ungeneral covenant to repair on certain." the part of the tenant; and He is considered to have the the landlord, (or whoever be improved rent who receives the owner of the improved more than the person of whom rent,) is the party bound to he takes the premises : and, if contribute, he is, nevertheless, there be only one year of the liable only to reimburse his term to come, if it have been tenant money paid by him to originally demised on an imthe other owner, for such proved rent, the lessor of such works as are authorized to be term would be liable. It seems done by such owner, in respect strange, however, that the leof such adjoining house. Ro gislature should think that binson v.

Lewis, 10 East 227. there must be an improved rent The act of parliament gives in respect of every house. the tenant liberty to deduct 2. With respect to the other

1816.

STEWART

SMITH.

clauses of the act which bear which stands on the lands of on the present point, a few each, they are not, therefore, tewords will suffice. The three nants in common of the wall, months' notice, required by nor of the land on which it section 38, is only necessary stands, although the wall was where the person (who at the erected at the joint expense of time when it is required to the two proprietors. For, the build, &c. is liable to pay,) statute, though it gives each cannot agree with the owner party certain rights in a wall of the adjoining house. Peck built in this way, does not v. Wood, 5 T. R. 130. But make it a common property ; before an action can be brought it only confers on each a right to recover a proportion of the to use it for certain purposes. expenses of building a party Each party, for an injury done wall, the accounts prescribed to that part of the wall which by sect. 41, must be delivered, stands on his own land, must, whether the house be occupied of consequence, have the or

. by the owner or the tenant; dinary remedy : but the parties and a formal demand of the are severally owners of their money must be made twenty. respective lands, as before : one days before the action is each is entitled to an easement brought. Philp v. Donati, 2 on the wall in the land of the Taupt. 62.

other : but there is no transfer 3. With respect to the pro of property; and the property perty in party walls, with re of the wall ensues the property gard to which some questions of the land on which it stands. have arisen, the rule is this:--If See Matts v. Hawkins, 5 Taunt. two persons have a party wall, 20. and Moore v. Clarke, 5 one balf of the thickness of Taunt. 90.

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1816.

GURR v. RUTTON.

TRO
TROWEkrupy,

to have bad in

sideration for

ROVER, by the assignee of one Chapman, In an action a bankrupt, to recover the possession of nee of a bank

rupt, claiming certain property alleged to have belonged to Chap- property man, before his bankruptcy. The question turned rupt is alleged

whichthe bank. upon a reputed ownership : the defendant rented a

his possession, large farm in the island of Shepey, on which he order, and dis

position, as the depastured several thousand sheep; but, being reputed owner obliged to quit his farm, and remove his stock, he his bankhired of Chapman, who carried on the business of a

ruptcy, it is

competent for farmer and butcher, near Faversham, a tract of the defendant, land of 170 acres, in Ham marshes. The bank, a valid conrupt, at this time, was tenant to a person of the the property, name of Bloxland. The defendant agreed to give dence of a conChapman an advance on his original rent, and to tion, and to take all his crops and stock ; which he bought and resist the claim paid for at a valuation :

an agreement was tiff under the

statute 21 Jac. then made between them that Chapman should I. c. 19. 5. 11. continue on the farm, and act as the defend- upon those

grounds. ant's manager and bailiff ; that he should buy and sell stock for him, and superintend the farm as he had been heretofore accustomed. On 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

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 who supplied the farm, as the sole owner and proprietor of the stock, &c.

RUTTON.

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 consideratiun 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 claiin, 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.

1816.

The defendant afterwards had a verdict upon the merits.

GURR

V

Shepherd, S. G. and Bayly, for plaintiff.

RUTTON.

Lens and Vaughan, serjeants, and Holt, for defendant.

The following is the section seek relief by the said commisof the 21st Jac. I. c. 19. s. 11. sion, as fully as any other part on which the question turned : of the estate of the bankrupt."

66 And for that it often falls 21 Jac. I. c. 19. § 11. out that many persons, before The cases upon this section they become bankrupts, do are very numerous. Those that convey their goods to other men bear upon the present point upon good consideration, yet will be shortly referred to. still do keep the same, and are Where by contract bereputed the owners thereof, tween B. and the defendant, and dispose of the same as their B. agreed, on payment to him own: be it enacted, that if at of a sum certain, to convey to any time hereafter any person

the defendant a dwelling-house, or persons shall become bank.

and to deliver possession of all rupt, and, at such time as they the household furniture and shall so become bankrupt, shall, stock, and that after formal by the consent and permission possession delivered to the deof the true owner and proprie fendant, B. should be allowed tary, have in their possession, to remain in possession for three order, and disposition, any months without paying rent; goods or chattels, whereof they which agreement was notorious shall be the reputed owners, in the neighbourhood, and the and take upon them the sale, money was paid by the defendalteration, or disposition, as ant, and a formal delivery owners; that in every such made to him, and B. afterwards case the said commissioners, or left in possession according to the greater part of them, shall the agreement, who became have power to sell and dispose bankrupt whilst he so remained of the same to and for the be in possession, and before the nefit of the creditors which shall expiration of three months.-VOL. I.

Z

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