1798. SANGSTER V. injured by fire. A verdict was taken for the Defendant in order to afcertain the fum due, fubject to the opinion of the Court. Adair Serjt. having on a former day obtained a rule nifi for BIRKHEAD, fetting afide that verdict and entering one for the Plaintiff, Shepherd Serjt. now fhewed caufe. The firft question is, whether the Defendant can be confidered as the owner of the improved rent within the 14 Geo. 3. c. 78. S. 41. (a)? the fecond, whether under the terms of the leafe the Plaintiff was not bound to repair the wall at his own expence, or whether he is relieved from the performance of his covenant by 14 Geo. 3. c. 78.? Firft, the object of the act was to throw the burden on thofe perfons who derive a benefit from the improved rent; fuch as the leffee of a ground rent on a building leafe: it was never intended to apply to perfons who having taken a lease at a rackrent, afterwards underlet at a rent fomewhat higher. The Defendant is not the owner of the improved rent, but of an increased rent only. It feems to have been the opinion of Lord Kenyon and Buller J. in Southall v. Leadbetter, 3 T. R. 458., that perfons who take leafes at a fmall rent, and afterwards improve them fo as to create a new eftate, fhould be liable. But a perfon who takes a house in the city of London at a rack-rent, and afterwards underlets to one who wants to come into his bufinefs, and therefore gives a better rent for the house, is not the owner of the improved rent within the meaning of the act; if he were, there might be fix different owners of the improved rent of the fame houfe. In Peck v. Wood, 5 T. R. 130. the diftinction taken, was between the improved rent and the ground rent. Secondly, fuppofing the Defendant to be the owner of the improved rent within 14 Geo. 3. c. 78. ftill the Plaintiff is bound by his covenant to repair, and is not exempted from the performance of those covenants by the act. [The Court said they could not meddle with that question, as the Legislature certainly never meant to incumber itself with the covenants which parties might make with each other.] (b) Adair contrà was stopped by, () By 14 Geo. 3. c. 78. S. 41. It is enacted, that the perfon at whofe expence any party-wall shall be built, agreeably to the directions of that act,shall be reimbursed by the owner or owners who fhall be entitled to the improved rent of the adjoining building in the proportion therein mentioned. That the first builder fhall leave at the adjoining building an account of the fum to be paid by such owner; whereupon it fhall be lawful for the tenant or occupier of fuch adjoining building to pay fuch proportionable part of the expence to the firft builder, and to deduct the fame out of the rent which shall become due from him to fuch owner or owners under whom he holds, until he be reimbursed the same. (6) Vid. tam. Barrelt v. Duke of Bedford, 8 T. R. 60. EYRE EYRE Ch. J. I dare fay that the leading object of the Legiflature was to make the owner of the improved rent liable, as opposed to the ground landlord. But though that may have been the leading object, yet the expreffions of the act being fuch as they are, we muft deal with them as well as we can, and find an owner of the improved rent in all cafes, though there should be no ground rent referved. Here the original landlord made a lease for twenty-one years to a perfon who again underlet the premifes. Who then is the perfon to be confidered as the owner of the improved rent, but the man who on all the fubfifting leafes has the beft rent? But, whether he be the perfon or not, I have much doubt, as the queftion now ftands, if the Defendant can avail himfelf of the objection which he has taken. I think that it was intended by the Legiflature that the tenant should pay a moiety of the expence to the perfon 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 fuch other perfons as he may think liable. That appears to me the beft conftruction for putting the bufinefs in a practicable fhape. I fhould incline to that opinion, even if it were made out that the covenant on the part of the tenant to repair, included this cafe: for though the conduct of the tenant might be a breach of covenant, it would be fitter that the damages should be settled in an action of covenant, than to break in on the rules established by the ftatute. It is eafy to fee, that this is an ill-penned law, and its meaning is left uncertain; but in the prefent cafe I do not know how to determine, who is the owner of the improved rent, if it be not the perfon who takes the beft rent. Pofiibly it may be faid that Woodward and the Defendant fhould pay in certain proportions; let them however fettle that in fuch actions as they may think fit to bring. I know no way of executing this law, if we enter into all the derivative claims of different landlords (a). If the tenant pays the money, let him reimburse himself, and leave the other parties to difpute among themselves. BULLER J. I agree in opinion with my Lord, and think his · conftruction of the act clear and intelligible. There are three parties in this bufinefs, the man who built the wall, the tenant, and the tenant's immediate landlord. The owner of the adjoining house purfued the directions of 14 Geo. 3. c. 78. which gave him a right to call on the Plaintiff for a moiety of the expence; that being fettled, how does the cafe ftand between the tenant and VOL. I. (a) Beardmore v. Fox, 8 T. R. 214, X his 1798. SANGSTER V. CIRKHEAD. 1798. SANG FIR ย. his landlord? I agree that we must confider whether the landlord be the owner of an improved rent: but in this cafe he has an improved rent, fince he receives more than the perfon of whom BIRKHEAD he took the premifes. And if the landlord has the improved rent he certainly is liable, though there be only one year of the term to come. As to the queftion, whether the expence can be apportioned, that does not arife here; but if any thing could be found to warrant an opinion thrown out by Lord Mansfield in Stone v. Greenwell (a), that the parties might be liable to a rateable proportion in fome cafes, it would tend much to the advancement of juftice. The building a party-wall is certainly a great improvement to the premises, and every person interested in the fee and receiving a benefit from it ought to contribute. June 20th. 7 EuA, 565. 13 Eaft 100. 2 Bof. Puil. 4472 S. P. 2 Taun 43. 7 Vex. Jun. 345. Vide 9 Vez. Jun. 249. 13 Vez. Jun. 30. A fale of lands, though by auc tion, is within the If the abandon HEATH J. I think the conftruction which has been put upon this ftatute is the true and neceffary conftruction. The Legiflature feems to think that there must be an owner of an improved rent in refpect of every houfe; and we need not look further than the landlord immediately above the tenant who pays. ROOKE J. I do not know how any other conftruction can be put upon this act, than that which has been fuggefted. The words of the ftatute are, that "it fhall be lawful for the tenant "or occupier of fuch adjoining building or ground to pay one moiety, &c.;" this Plaintiff was the tenant, it was therefore lawful for him to pay, and he was to reimburse himself by deducting the rent due from him to his landlord, if that landlord was the owner of the improved rent; but not if he was only the owner of the ground rent. TH Rule abfolute, (a) Mich. T. 24 Geo. 3. B. R. referred to 3 T.R. 461. WALKER V. CONSTABLE. HIS was an action on the cafe. The firft count in the declaration stated that the Plaintiff had contracted with the Defendtatute of frauds. ant for the purchase of an eftate, had paid a depofit of 860l., and had incurred a confiderable expence in examining the title; that in confideration of the premises, and that the Plaintiff and Defendant had agreed that the faid contract should be at an end, and ment of a con tract be made the ground of an action, it is not competent to the Plaintiff to fhew that a contract has exifted and been abandoned, without proving the fpecific contract. The net fum only, without intereft, can be recovered in an action for money had and received. the 1798. WALKER the faid intended purchase be abandoned, and that the Plaintiff would receive back his aforefaid purchase money, the Defendant undertook to pay intereft on the depoiit money from the time of its being advanced to the time of its being repaid, and alfo the CONSTABLE. cofts and expences of examining the title. There was alfo a count for money had and received. Plea; general iffue. At the trial of this cafe before Eyre Ch.J., at the Guildhall fittings after Eafter term, the Plaintiff not having produced a written contract in fupport of his declaration was nonfuited, on the ground of its being a contract for the fale of lands within the ftatute of frauds. (a) Adair Serjt. on a former day obtained a rule to fhew caufe why the nonfuit fhould not be fet afide, and a verdict be entered for the Plaintiff, contending, firft, that fales by auctions were not within the ftatute [But the Court faid that the cafes (b) on that fubject only applied to fales of chattels]; fecondly, that it was competent to the Plaintiff to prove that a contract had exifted and been abandoned, without producing the fpecific contract in evidence. The Court, however, were of opinion that the contract itself must be fhewn, before it could be proved to have been abandoned: but granted a rule to fhew caufe on the fuggeftion of BULLER J., that the Plaintiff might perhaps be entitled to recover intereft under the count for money had and received. Adair having again mentioned the cafe this day, The Court were of opinion, on the authority of Mofes v. Macferlan, 2 Burr. 1005. that in an action for money had and received the Plaintiff could recover nothing but the net fum received without intereft. Per Curiam, (a) 29 Car. 2. c. 3. f. 4. Rule discharged. Johnfon, coram Eyre Ch. J. Efp. Caf. (b) Vid. Simon v. Metivier or Motivos, N. P. 101, 651. 1 Bl. 599. 3 Burr. 1921. and Stansfield v. STEEL V. RORKE Adminiftratrix, &c. 16 Vez. Jun. 425. judgment against ASSUMPSIT for goods fold and delivered to the Defendant's An outstanding inteftate. Plea: Judgments and bonds outstanding. Repli- a tator or incation: That the judgments were not at the time of fuing out the teftate, not docketted according to the directions of 4 & 5 W. & M... 20. cannot be pleaded by an executor or adminiftrator te an action on fimple contract. X 2 writ 1798. STEEL V. RORKE. 66 writ docketted and entered according to the provifions of 4 & 5 W. & M. c. 20. Rejoinder: "Protefting that the faid replication, and the matters therein contained, are not sufficient in "law for the Plaintiff to have or maintain his action thereof "against the Defendant, nevertheless that the Defendant before "and at the time fhe fo pleaded her said plea as aforesaid, had "notice of the records of the faid feveral judgments fo obtained "as aforefaid, and each and every of them in the said replica"tion mentioned, being in the faid court of our faid Lord the "King, before the King himself, in manner and form as fhe the "Defendant hath above in thofe refpects in pleading alleged, "and which ftill remain, and each and every of them remains "in the faid court of our faid Lord the King, before the King "himfelf, at Westminster aforefaid, in their and each of their full "force and effect, not reverfed, annulled, fet afide, or in any "wife paid off or fatisfied." To this there was a general demurrer and joinder therein. Heywood Serjt.in fupport of the demurrer. The cafe of Hickey v. Hayter, adminiftratrix, 6 T. R. 384. which puts judgments not docketted on a footing with fimple contract debts, is decifive in favour of the Plaintiff. The only argument which can be advanced in fupport of this rejoinder is, that the object of the ftatute was to infure notice to executors and adminiftrators of judgments in force against them; if therefore that notice be obtained by any other means it will be fufficient. The words of the ftatute however are pofitive "that no judgment not dock"etted and entered fhall have any preference against heirs, ex"ecutors, and adminiftrators, in the adminiftration of their an"ceftors', teftators', or inteftates' effects." The plea ftates that the Defendant is bound to pay debts which he is not bound to pay; for there is no lien on the effects created by the judgments; the executor, therefore, cannot take advantage of them as if there had been. Befides, the docketting is not required for the fake of executors and adminiftrators only, but of all perfons, fuch as the creditors or residuary legatee who may be interested in knowing what judgments there may be outstanding against the estate. Shepherd Serjt. contrà. Before the ftatute, executors and adminiftrators were bound to retain affets in their hands for the payment of all outstanding judgments, though they had received no notice of any being figned; for it was their duty to fearch for them. The only object of the ftatute, as appears by the pre amble, |