1809.

AMBROSE

v.

mitted he could not support; but he insisted that there was no due averment of the presenting the bill for payment, and that this objection, which was not one of the causes assigned, went HOPWOOD. to the substance of the case; for consistently with this averment, the bill might be presented to Messrs. Freeman at the Royal Exchange, or at some other place, where the Defendant did not undertake that they should pay it by the tenor of the acceptance it was to be presented at a particular place only. Onslow Serjt., contrà.

The Court held the objection fatal (a), but permitted the Plaintiff to amend on payment of costs.

(a) But see Huffam v. Ellis, Cor. Dom. Proc. in Error, Easter

term 1811, post. vol. 3. where the contrary was decided.

June 14.

The Court

will not com

pel security for

costs on the

Plaintiff is a

bankrupt; or

in Newgate. *[ 62 ]

VAUGHAN

ANONYMOUS.

AUGHAN Serjt. moved that the Plaintiffs might give security for the costs in this action. One of them was ground that the a bankrupt, the other was a prisoner in Newgate; *and the affidavit on which he moved, stated the deponent's belief that neither of them was possessed of any property: and the case of Webb v. Ward, 7 T. R. 296. was cited, in which, being an action brought by an uncertificated bankrupt, the Court compelled his assignees to give security for the costs. In the present case, if any thing should be recovered by the Plaintiff, it would equally as in that case become the property of the assignees. The Plaintiffs themselves also sued as the assignees of a bankrupt.

The Court held, that unless some express authority could be found to warrant such an interposition, they could not grant the rule. The presumption of the law was in favour of the innocence of the man in prison, and the Defendant might sue him for the costs. The accident of a person's being in prison did not take away his right to sue, were it for ten thousand pounds.

Rule refused.

1809.

THE

PHILP V. DONATI.

the

June 17.

Before an ac tion can be

brought on the building act, to portion of the

recover a pro

expences of

party wall, the scribed by the

accounts pre

41st section

must be deli

vered, whether

cupied by the

owner or by a tenant. And a

formal demand

of the money 21 days before action brought.

must be made

*[ 63 ]|

HE Plaintiff declared in assumpsit, for part of the expence of building a certain party wall before then built at the Plaintiff's expence, according to the directions of the stat. 14 Geo. 3. c. 78., between a messuage of the Plaintiff, and an adjoining messuage, and which wall had before then building a been made use of by the Defendant, who before, and at the time of building and finishing the same, was the owner of, and the person entitled to, the improved rent of such adjoining messuage; and also for a certain part of certain other ex- the house be ocpences which were necessary for the pulling down of a certain old party wall between the said several buildings, before that time * pulled down at the expence of the Plaintiff agreeably to the directions of the same act. The Defendant pleaded the general issue. The question in the cause depended upon 41st, and two or three preceding sections of the act. The 41st section enacts that the person at whose expence any party wall shall be built, agreeably to the directions of that act, shall be reimbursed by the owner or owners, who shall be entitled to the improved rent of the adjoining building, and who shall at any time make use of such party wall, a part of the expence of building the same, in the proportion therein mentioned, (which varies in respect of the class of buildings to which the house benefited belongs,) to be paid in respect of every such party wall as should be built against or adjoining to any other house, so soon as such party wall should be completely built and finished; and that the owner or occupier of such adjoining house or building should, together with such proportional part of the expence of building such party wall, also pay a like proportional part of all other expences which should be necessary to the pulling down the old party wall; and the whole of all the reasonable expences of shoring up such adjoining house, and of removing any goods, furniture, or other things. And it is thereby directed that the expence of building any such party wall shall be estimated at 77. 15s. per rod for the new brickwork, deducting thereout after the rate of 28s. per rod for the materials, if any, of so much of the old wall as did VOL. II. E belong

1809.

PHILP

[64]

belong to such adjoining building; and that within ten days after such party wall shall be built, or so soon after as conveniently might be, such first builder or builders shall leave at DONATI. such adjoining house a true account in writing of the number of rods in such party wall, for which the owner or owners of such adjoining house shall be liable to pay, and of the deduction which such owner or owners shall be entitled to make thereout on account of such materials, and also on account of such other expences as aforesaid; whereupon it shall be lawful for the tenant or occupier of such adjoining building to pay such proportional part as aforesaid, to such first builder for the same, and also for shoring and supporting such adjoining building, and for all such other expences as are thereinbefore directed to be paid by the owner or owners of such adjoining building, and to deduct the same out of the rent which shall become due from him to such owner or owners under whom he holds the same, until he shall be reimbursed. And in case the same be not paid within 21 days next after demand thereof, then the same shall and may be recovered, with full costs, of and from such owner or owners by action of debt, or on the case. Upon the trial of this cause at the Westminster sittings after last Easter term, before Mansfield C. J., it appeared that the Plaintiff had taken down an old party wall, which stood between his own house and the contiguous house of the Defendant, which was in her own occupation, and had built a new party wall in the room of it, at the expence of 3001.; forming part of an entire new house, which the Plaintiff had erected there for himself; and no account of the expence of the party wall was delivered to the Defendant until after the whole house was completed. But the Plaintiff proved, that about two months after the party wall was finished, an account was delivered at the Defendant's house, and that the Plaintiff's attorney had several times attended the Defendant with the bills of the expences, and had gone over and examined the several items with her. It was objected, on behalf of the Defendant, that the Plaintiff had failed to prove four essential things. 1. That he had paid the money for the work which had been done. 2. That he had delivered at the adjoining house, within ten days after the wall was built, a true account in writing of the number of rods in the party wall; or, 3. of the deduction which the owner was entitled to make, in respect of the materials of the old party wall. 4. That no demand

[65]

demand had been made of the money due, nor had there consequently been any failure to pay within 21 days after demand, which was necessary to constitute the very foundation of the action. The jury found a verdict for the Plaintiff, for the proportion of the sums claimed, which would be due if the house benefited were of the same class with the Plaintiff's, with leave for the Plaintiff to move to reduce the damages, or to enter a nonsuit.

Accordingly Best Serjt., in the last term, obtained a rule misi; and on this day,

Shepherd Serjt., shewed cause. He contended that the regulations of this section requiring an account to be delivered are only directory, and apply only to the case where a tenant, and not the owner, occupies the house benefited by the party wall. These accounts are intended only as warrants to the occupier to authorize his payment of the money for his landlord, and to enable him upon the evidence of these vouchers to recoup himself out of his next rent; but they are not necessary where the house is not occupied by a tenant, who has accounts to pass with his landlord, but by the owner himself, who has no one to account to for his expenditure. The act indeed gives the builder an action against the owner, not requiring that he shall be also the occupier; but it gives the occupier an option to pay the money, and deduct it from the rent due to the landlord; for which there is this very good reason, that it may be very desirable for the occupier to have the party wall rebuilt, but the landlord may not be equally solicitous to incur the expence of it; and it is only for the sake of enabling the tenant to reimburse himself, that these requisites are to be complied with.

Best, contrà. In the first place, it is now clear on the evidence that the Defendant's house is of a smaller class than the Plaintiff's, and that she is therefore liable to pay only one fourth, instead of one half of the expence of the wall. (This was admitted on the part of the Plaintiff.) In the next place, no account of the materials of the old wall was delivered, nor was any account of the expences of the party-wall delivered within ten days or a convenient time. Nor was there any demand at all made of the money, unless the mere delivery of some accounts could be deemed to imply a demand. These requisites must be complied with in all cases before any action at all can be brought against the owner of the adjacent house. MANSFIELD

E 2

1809.

PHILP

V.

DONATI.

MANSFIELD C. J. The words of the act which give the action are, "And in case the same shall not be paid within 21 "days after demand thereof, then the same shall and may be "recovered, together with full costs of suit, of and from each 66 owner or owners." Is not the same still the price to be paid for building the wall, for shoring up the adjoining house, &c. and there is nothing else in the sentence to which the word same can refer. Is not that then the sum to be contained in that account? The act says nothing of the occupier having 21 days to pay it in; it states that 21 days after demand thereof an action may be brought against the owner. The account delivered in this case contained no hint of the value of the old The statute materials, nor was any formal demand made. requires a formal demand of the money before an action can be brought, as much as the common law requires a formal demand upon an entry for a forfeiture.

Rule absolute to enter a nonsuit.

[ 67 ]

June 19.

If a Plaintiff

sue out writs

into two coun

ties, and arrest

in both, who

gives bail in

BULLOCK V. MORRIS.

HE Plaintiff issued a capias into Somersetshire; but the defendant not being there found, he issued another orithe Defendant ginal capias into Middlesex, on which the Defendant was taken in that county, and gave bail. On the 31st of January the bail both, the De- bond was assigned to the Plaintiff, and on the 1st of February not thereby ob- the Defendant was arrested at Bath, on the capias first sued out, tain the right of and gave bail to the sheriff there. The defendant was almost imelecting in which county mediately apprised that this was a mistake, and that he need not put in hail to this writ, as no further proceedings would be had first given con- on it. Best Serjt. had obtained a rule nisi to set aside the

fendant does

the bail shall stand.

But the bail

tinue liable.

assignment of the bail-bond by the sheriff of Middlesex, for irregularity, on the ground that the party was arrested in Somerset, and had given bail there.

Shepherd Serjt. on this day contended, that upon the facts, there was no irregularity in the assignment of the first bailbond, although the Plaintiff might perhaps be liable to an action for false imprisonment in making the second arrest.

Best,