Robert Whitley of Handborough and his heirs for ever: and at the same court Robert Whitley did his fealty, and was admitted tenant. It appeared also that in the year 1773, it was not usual to state on the Court Rolls the considerations, whether valuable or otherwise, which were given for property surrendered; but they were mentioned in the copies of the court rolls delivered out. The copy was not produced in evidence in this case. Robert Whitley, the pauper's father, resided in the house more than forty days previous to such surrender, (and after his father's death (a),) and more than forty days after the surrender, and during this occupation the pauper was born. Talfourd in support of the order of sessions. The question is, whether the parish certificate has been discharged by the acquisition of an estate. It cannot be said that the pauper's father took any thing under the will, for no estate is given to him thereby. Then, has the pauper acquired an estate under the surrender which will destroy the effect of the certificate? It is established by Rex v. Great Driffield (b) that a certificate will not be discharged by the acquisition of an estate through the act of the party himself, as by purchase. But it is left undecided there what would be the effect of a voluntary grant by another. Here, too, it is unnecessary to decide that question, for supposing it to be a conveyance from one brother to another, without any consideration ap (a) The case was amended at the suggestion of the Court, during the argument, by the insertion of this fact, which was agreed to by the counsel on each side. (b) 8 B. & C. 684. VOL. II. 3 L pearing, 1831. The KING against The Inhabitants of CASSINGTON, 1831. The KING against The Inhabitants of CASSINGTON. pearing, still, as against the parish seeking to discharge itself from the certificate, it must be taken primâ facie to have been in the whole or in part for a pecuniary consideration. It lies upon that parish to prove it to be a voluntary grant, Rex v. Warblington (a). The sessions have not expressly found whether the consideration was voluntary or pecuniary; but as they have confirmed the order, they must be taken to have decided that it was not voluntary. Chilton contrà. Since the decision in Rex v. Great Driffield (b), it cannot be contended that a purchase will discharge the certificate; but the sessions did not intend to find that there was a purchase. At all events, the pauper's father took an estate under the will, and resided forty days after it came to him, which has discharged the certificate. Under the words of the will," and my desire is, that my son Robert shall live in that part of my house as he now doth, and at the same yearly rent which he now gives, as long as my son John shall enjoy or own the same," Robert took an estate for the life of John, defeasible by his ceasing to own and enjoy the property, and was therefore irremovable. Then, on the other point, the general doctrine is, that the certificate is not discharged by any act of the party himself: but voluntary conveyances fall under a different rule: thus in Rex v. Upton (b), in which there was a mixed consideration, partly money and partly love and affection, the certificate was holden to be discharged. The present point, therefore, is not decided by Rex v. Great Driffield. (a) 1 T. R. 241. (6) 8 B. & C. 684. (c) 5 T. R. 251. Lord Lord TENTERDEN C. J. It seems to me that, under the will, the pauper's father took an estate pur autre vie, that is, for John's life, defeasible on his ceasing to enjoy and own the estate. No one could say that John would so cease during the whole of his life; so long, therefore, as John lived, Robert might hold his estate. And it was conveyed to him by the will of his father, and not by his purchase, or any act of his own. PARKE J. Robert took an estate for life, determinable on certain events. It is immaterial whether the estate be equitable or legal, the certificate is equally discharged. The case of Rex v. Great Driffield (a) leaves all the cases untouched where the consideration is any other than pecuniary. TAUNTON J. and PATTESON J. concurred. The rule for quashing the order of sessions was (a) 8 B. & C. 684. 1831. The KING against The Inhabitants of CASSINGTON. 1831. Monday, A tenant of premises, hav wall thereon, them, upon a WILLIAMS against POCKLINGTON. ASSUMPSIT for a portion of the expense of a party ing built a party wall built by the plaintiff, pursuant to the act let a portion of 14 G. 3. c. 78., and cut into and used by the defendant, he then being the owner and occupier, and entitled to the improved rent, of the adjoining premises. Plea, non sub-tenant built assumpsit. At the trial before Lord Tenterden C. J., at the London sittings after Hilary term, 1831, it appeared so doing made that the plaintiff, being tenant, at a rent of 80l. a year, a house on his part of the ground, and in use of the party wall. The agreement contained no stipulation in case of this being done. The sub-tenant underlet the house, when finished, at a rent exceeding 502.: Held, that the original tenant was not entitled to com his lessee under of certain land, upon which he had built the party wall in question, demised several portions of it at rents amounting altogether to 140l. a year. One parcel of the land he let to the defendant for fifty-nine years, at a yearly rent of 50l., upon an agreement, by which the defendant undertook to erect a substantial brick dwellingthe premises within twelve months, and to all taxes, &c.; and the plaintiff, on his part, agreed, house upon pay so soon as the house should be completed, to grant the pensation from defendant a lease, subject to the usual covenants, at the rent, and for the term aforesaid. The defendant the building act 14 G. 3. c. 78. s. 41. for built his house, and in so doing, made use of the the use of the party wall, since he himself, and not his sub-tenant, was the owner of the improved rent, within that clause. Semble, that the clause does party wall; and a lease was afterwards granted him pursuant to the agreement. He then underlet the premises at an advanced rent. The plaintiff thereupon made the claim stated in the declaration and at the trial, this demand was grounded both on an express promise (after the use made of the wall), and upon the not apply where defendant's general liability under the building act, the land ad jacent to the d party wall is hel" under an agreement with the builder of it, 14 G. 3. For the defendant it was 1831. 66 owner entitled to the im .14 G. 3. c. 78. s. 41. (a). Gurney and Kelly now shewed cause. The defendant, though holding his premises by lease from the plaintiff, was in the same situation as a stranger with respect to the party wall. There was no covenant entitling him to the benefit of that wall; he might avail himself of it or not, as he thought proper; but if he did so, he was bound to bear a part of the expense. There is no case in which this question has arisen between landlord and tenant; but on principle, a tenant ought to be held liable as much as a stranger. Lambe v. Hemans (b) will be relied upon on the other side. There, a person holding a lease of premises at a fixed rent, had assigned them, for a sum of money, to the defendant, who had greatly increased their annual value; but it was held that he was not the owner of the improved rent within the statute. In that case, however, the defendant had not underlet; and there is a material difference between a person taking a house from the lessee, who himself holds at an improved rent, and merely increasing its value, and one who erects houses on ground demised to him on a building lease: the latter is the very description of (a) Which provides, "That the person or persons at whose expense any party wall or party arch shall be built agreeably to the directions of this act, shall be reimbursed by the owner or owners who shall be entitled to the improved rent of the adjoining building or ground, and who shall at any time make use of such party wall or party arch, a part of the expense of building the same, in the proportion after mentioned," &c. WILLIAMS against POCKLINGTON. (b) 2 B. & A. 467. 3 L 3 person |