Reimburse ment and Contribution Clauses. to the contribution, the referees may make an award, and the word "award" applies. The same remark will affect other clauses of the act where there has been an award, or a certificate or other proceeding, or where a sum of money become due under any provision. Having thus given the clauses which shew that reimbursement is necessary, and that, upon the production of an account, a summary proceeding may be had recourse to, we come to the remedies which the law has reserved for those who are, in the first instance, liable, but who, nevertheless, are not ultimately debtors to the building, but may call upon others to contribute a share towards the expense. First, then, with reference to an indemnity in favour of the occupier, the act directs that, With regard to works executed under it, so far as relates to the reimbursement to the occupier of any costs by him paid in respect thereof, unless there be some express agreement to the contrary between the parties, it shall be lawful for such occupier and he is hereby entitled to deduct from the rents due or becoming due from him to his lessor or landlord, the amount of any such costs, charges, and expenses payable by his lessor or landlord, and the costs, charges, and expenses of any distress and sale made on him through the default of his lessor or landlord; and, that the receipt for such payment shall be a sufficient discharge to any occupier for so much money as he shall have so paid, or which shall have been so levied on his goods and chattels in pursuance of this act, and shall be allowed by such lessor or landlord in part or full payment (as the case may be) of the rent due to him by such occupier (g). (g) Section 48, post, Append. ment and This clause would seem to invite landlords to intro- Reimburseduce covenants into their leases for their tenants to pay Contribution all expenses attending the execution of the Building Act. Clauses. For we shall find that, with reference to leases in existence when the act commences, the persons "now liable by law, or by any existing contract, to maintain and repair such buildings in respect of which such costs and expenses shall have been incurred," must submit to this obligation. And, next, we shall see, that with regard to leases made after the operation of the act, except a lease renewable for ever on a fixed fine or other customary payment, the costs and charges are to lie upon the lessor, although the occupier will be liable in the first instance, such occupier having a remedy, "unless there be some express agreement to the contrary," against his landlord for the full amount of costs and charges. But this principle of a contract between landlord and tenant is not a new arrangement with respect to party walls. The maxim, "modus et conventio vinciunt legem," applies in this case, and although it is observable that the new statute requires, an express agreement to the contrary, it is possible that the case we are about to cite will be found under the term "nett" to contain such an agreement. The plaintiff covenanted that he would allow a reasonable share and proportion towards the repair of party walls belonging to the demised premises, and it was likewise mentioned in the lease that the landlord was to have £60 in net money, without any deduction, defalcation, or allowance whatever. The plaintiff underlet the property in portions, and it was contended that he was liable, but the Court reverted to the covenant, holding it to be absolute, and so the postea went to the defendant the land Reimburse- lord (h). Lord Kenyon, however, intimated that the plaintiff's case might have been very different had he not covenanted so expressly to pay in net money (i). Now it is observable, that the present statute imposes the contribution "according to the covenants of the several leases or agreements," between the parties. It is, therefore, clear that the referees will hereafter make a point of looking into the leases for the purpose of ascertaining whether any liability exists, or where it attaches. The Courts would not probably esteem this party wall payment to be a tax now more than formerly (k), but upon an action brought by the builder of the party wall against another, the covenants and agreements of the respective leases will doubtless have been previously examined by the referees. The act presents the alternative. Should the parties have agreed together, upon default, an action will lie upon the express agreement without further dispute or discussion. Should they not agree, the covenant of the leases will be submitted to the referees, whose decision is to be final, so that the Courts will seem to be relieved entirely from the consideration of these contracts. Again, if the tenant, independently of legal compulsion, should take upon himself the burthen of repairs which belong to his landlord and others, he will not be in a condition to claim indemnity at the hands of the referees, nor to proceed before the justices, nor to retain the amount of rent as a compensation. The following cases will still, then, be of value. The plaintiff declared against his landlord in an assumpsit for money paid, laid (h) 8 T. R. 602, Barrett v. The Duke of Bedford. (i) Id. 605. (k) 3 T. R. 361; 8 T. R. 605. Contribution out, and expended for the use of the defendant. The Reimbursedefendant pleaded the general issue, and paid 76%. 2s. ment and into Court. A verdict was found for the plaintiff for Clauses. 194/. 14s. 2d. beyond the money paid into Court subject to a case. It appeared that the plaintiff's party wall stood in need of repair, and that, after the usual notices, the wall was condemned by the surveyors as ruinous. The owner of the adjoining house then rebuilt the party wall, and brought in a bill to plaintiff of 727. 12s. 5d., which was reduced to 70%. 9s. 6d., and together with 5l. 12s. 6d., the surveyor's charge, amounted together to 761. 2s., the sum paid into Court. The sum was paid by the plaintiff to the adjoining owner, and the defendant had notice of the payment. But in the course of the work it became necessary to shore up the house of the plaintiff, and to build up some of the wainscots and partitions there. Instead of leaving this to be done by the builder of the party wall, the plaintiff employed workmen of his own, and paid them the sum of 1947. 14s. 2d. for the extra work, and this latter amount his landlord refused to recognise, upon which the action was brought. And Lord Ellenborough, who had tried the cause, delivered the judgment of the Court in favour of the defendant. It was certainly competent and proper for the builder of the party wall to shore up the adjoining dwelling, and then to demand reimbursement from his neighbour, but here the plaintiff had thought fit to interpose and do the work himself. He ought to have left the builder to have done this, and having paid the demand, to have deducted the amount from his landlord's rent. Not having complied with the provisions of the statute; he could have no remedy, and accordingly the postea was delivered to the defendant (1). So where the plaintiff, (1) 10 East, 227, Robinson v. Lewis. Reimburse- an assignee, thought fit to give a notice (m) in his landlord's name to the adjoining owner that the party wall was out of repair, upon which the two parties rebuilt at their joint expense, and the plaintiff's moiety came to 4241., Abbott, C. J., directed a nonsuit in an action of assumpsit brought against the landlord, for the plaintiff had failed to obey the provisions of the statute (n). And this is very different from the case of damage done by the owner of the adjoining house, and an action brought, not against the landlord, but against such owner. Thus, where the defendant pulled down a party wall, and damaged the decorations of the house adjoining, upon 'his rebuilding, without replacing the decorations, it was considered by Wightman, J., that the tenant of the house injured might bring an action for this damage. And Mr. Justice Wightman distinguished the case from Robinson v. Lewis, because there the tenant sought to charge his landlord, whereas here he received damage in consequence of the act of a third party. The plaintiff, however, had moved for a writ of mandamus for the purpose of reinstating his dwelling, and the Court would not grant the remedy, but left the plaintiff to his action (o). We come (m) Under 14 Geo. 3, c. 78, s. 38. Dowl. N. S. 116, Reg. v. Ponsford. (p) See the section, post, Append. |