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SANGSTER

1798. injured by fire. A verdict was taken for the Defendant in order

to ascertain the sum due, subject to the opinion of the Court.

Adair Serjt. having on a former day obtained a rule nifi for Birkheadsetting aside that verdiet and entering one for the Plaintiff,

Shepherd Serjt. now shewed cause. The first question is, whether the Defendant can be considered as the owner of the improved rent within the 14 Geo. 3. C. 78. 8:41. (a)? the second, whether under the terms of the lease 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.? First, the object of the act was to throw the burden on those persons who derive a benefit from the improved rent; such as the lefsee of a ground rent on a building lease: it was never intended to apply to persons who having taken a leafe 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 seems to have been the opinion of Lord Kenyon and Buller J. in Southall v. Leadbetter, 3 T. R. 458., that persons who take leases at a small rent, and afterwards improve them so as to create a new estate, should be liable. But a person who takes a house in the city of London at a rack-rent, and afterwards underlets to one who wants to come into his business, 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 house. 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. still 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 Legillature certainly never meant to incumber itself with the covenants which parties might make with each other.] (6)

Adair contrà was stopped by,

() By 14 Geo. 3. 6.78.8.41. It is it shall be lawful for the tenant or occupier enacted, that the person at whose expence of such adjoining building to pay such proany party-wall fall be built, agreeably to portionable part of the expence to the first the directions of that act,fhall be reimbursed builder, and to deduct the iame out of the by the owner or owners who Thall be enti. rent which shall become due from him to tled to the improved rent of the adjoining such owner or owners under whom he holds, building in the proportion therein men- until he be reimbursed the same. tioned. That the first builder shall leave (6) Vid. tam. Barrett v, Duke of Bedat the adjoining building an account of the ford, 8 T.R. 60. fum to be paid by such owner ; whereupon

EYRE

1798.

SANGSTER

CIRKHEA).

Eyre Ch. J. I dare say that the leading object of the Legislature 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 expressions of the act being fuch as they are, we must 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 reserved. Here the original landlord made a leafe for twenty-one years to a person who again underlet the premises. Who then is the person to be considered as the owner of the improved rent, but the man who on all the fubfisting leafes has the best rent? But, whether he be the person or not, I have much doubt, as the question now stands, if the Defendant can avail himfelf of the objection which he has taken. I think that it was intended by the Legislature that the tenant Thould pay a moiety of the expence 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. That appears to me the þeft construction for putting the business in a practicable shape. I should incline to that opinion, even if it were made out that the covenant on the part of the tenant to repair, included this case: 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 etablished by the statute. It is easy to fee, that this is an ill-penned law, and its meaning is left uncertain; but in the present case I do not know how to determine, who is the owner of the improved rent, if it be not the person who takes the best rent. Posibly it may be said that Woodward and the Defendant should pay in certain proportions ; let them however settle that in such 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 dispute among themselves.

BULLER J. I agree in opinion with my Lord, and think his construction of the act clear and intelligible. There are three parties in this business, the man who built the wall, the tenant, and the tenant's immediate landlord. The owner of the adjoining house pursued 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 settled, how does the case stand between the tenant and

(a) Beardmore v. Fox, 8 T.R. 214.

VOL. I.

his

1798.

SANG ILR

BirkuEAD.

his landlord? I agree that we must consider 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 person of whom he took the premises. 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 question, whether the expence can be apportioned, that does not arise 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 cases, it would tend much to the advancement of justice. The building a party-wall is certainly & great improvement to the premises, and every person interefted in the fee and receiving a benefit from it ought to contribute.

HEATH J. I think the construction which has been put upon this ftatute is the true and necessary construction. The Legiflature seems to think that there muft be an owner of an improved rent in respect of every house; and we need not look further than the landlord immediately above the tenant who pays.

ROOKE J. I do not know how any other construction can be put upon this act, than that which has been suggested. The words of the statute are, that "it shall 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 de ducting 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.

Rule absolute.

June 20th.

7 EZA, 565. 13

3 E 1co. 2 Bufs Pull.

(a) alicb. T. 24 Geo. 3. B. R. referred to 3 T.R. 461.

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% Taun 43.
7 Vez. Jun. 345.
Vide 9 Ve%.
Fun. 249.

WALKER V. CONSTABLE.
13 Vez. Jun. 30.
A file of lands,
though bu au:-

His was an action on the case. The first count in the declaraTH

tion stated that the Plaintiff had contracted with the Defendtion, is within the tatute of frauds. ant for the purchase of an estate, had paid a deposit of 860l., and If the abandonment of a con

had incurred a confiderable expence in examining the title; that tract be made the in consideration of the premises, and that the Plaintiff and Deground of an action, it is not fendant had agreed that the said contract should be at an end, and competent to the Plaintiff to thew that a contract has existed and kcen abandoned, without proving the specific contra&. The net fum only, withont interest, can be recovered in an action for money had and received.

the

WALKER

• the faid intended purchase be abandoned, and that the Plaintiff 1798.

would receive back his aforesaid purchase money, the Defendant undertook to pay interest on the depot money from the time of its being advanced to the time of its being repaid, and also the Constable. cofts and expences of examining the title. There was also a count for money had and received.

Plea; general issue.

At the trial of this case before Eyre Ch.J., at the Guildhall fittings after Easier 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 statute of frauds. (a)

Adair Serjt. on a former day obtained a rule to thew cause why the nonfuit fhould not be set aside, and a verdict be entered for the Plaintiff, contending, first, that fales by auctions were not within the statute [But the Court said that the cases (6) on that subject only applied to sales of chattels]; secondly, that it was competent to the Plaintiff to prove that a contract had existed and been abandoned, without producing the specific 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 thew cause on the suggestion of

BULLER J., that the Plaintiff might perhaps be entitled to recover interest under the count for money had and received.

Adair having again mentioned the case this day,

The Court were of opinion, on the authority of Mofis v. Macfer lan, 2 Burr. 1005. that in an action for money had and recei ved the Plaintiff could recover nothing but the net fum received without intereit. Per Curiam,

Rule discharged.

(a) 29 Car. 2. 6. 3. f. 4.

Folnion, coram Eyre Ch. J. Exp. Caf. (6) Vid. Simon v. Melivier or Motivos, N. P. 101, 651. I Bl. 599. 3 Burr. 1921. and Stansfield v.

June 21st.

425.

STEEL v. RORKE Administratrix, &c.

16 Vez. Jun. ASSUMPSIT for goods fold and delivered to the Defendant's An outstanding

inteftate. Plea : Judgments and bonds outstanding. Repli- jdement against cation : That the judgments were not at the time of suing out the testate, not dock

etted according to the directions of 4 & 5 W. & M. 6. 20. cannot be pleaded by an executor or administrator te an action on fimple contract.

writ

X 2

1798.

STEEL

RORKE.

writ docketted and entered according to the provisions of 4 & 5 W. & M. c. 20. Rejoinder: “ Protesting that the said repli“cation, 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 the so pleaded her faid plea as aforesaid, had " notice of the records of the said several judgments so obtained “ as aforcfaid, and each and every of them in the said replica“ tion mentioned, being in the said court of our faid Lord the

King, before the King himself, in manner and form as she the “ Defendant hath above in those respects in pleading alleged, “and which still remain, and each and every of them remains " in the faid court of our faid Lord the King, before the King “ himself, at Wejiminster aforesaid, in their and each of their full “ force and effect, not reversed, annulled, set aside, or in any. “ wife paid off or fatisfied.” To this there was a general demurrer and joinder therein.

Heywood Serjt. in support of the demurrer. The case of Hickey v. Hayter, administratrix, 6 T. R. 384. which puts judgments not docketted on a footing with simple contract debts, is decisive in favour of the Plaintiff. The only argument which can be advanced in support of this rejoinder is, that the object of the statute was to insure notice to executors and adminiftrators of judgments in force against them; if therefore that notice be obtained by any other means it will be sufficient. The words of the statute however are positive “ that no judgment not dock“ etted and entered shall have any preference against heirs, ex

ecutors, and administrators, in the administration of their an“ cestors', 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 i the executor, therefore, cannot take advantage of them as if there had been. Besides, the docketting is not required for the fake of executors and adminiftrators only, but of all persons, such as the creditors or residuary legatee who may be interested in knowing what judgments there may be outstanding against the estate.

Shepherd Serjt. contra, Before the ftatute, executors and administrators were bound to retain affets in their hands for the payment of all outstanding judgments, though they had received no notice of any being signed; for it was their duty to search for them. The only object of the statute, as appears by the pre

amble,

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