ment and been ascertained and paid by the owner upon whom the Reimbursepayment thereof shall have first fallen, then as to any Contribution building or tenement held under any lease, or agree- Clauses. ment for a lease, or other agreement for the occupation thereof, made before the coming into operation of this act, it shall be lawful for such owner, and he is hereby entitled to recover the same from the persons now bound or 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; but if any dispute or difference arise as to the persons so bound or liable, then every such dispute or difference shall be referred to the official referees; and that thereupon such official referees shall ascertain and determine the persons bound or liable to pay such costs and expenses, and also in what proportions such costs and expenses are to be paid by the parties liable to pay the same, and their decision shall be final; and that as to any building or tenement held under any lease or agreement for a lease, or other agreement for the occupation thereof, made after the coming into operation of this act, except a lease renewable for ever, on a fixed fine, or other customary payment, all such costs and expenses shall be charged upon the lessor granting such lease or making such agreement, and not upon any lessee or sub-lessee holding under such lease or agreement; subject, nevertheless, to any express covenant or agreement made between any such lessor and lessee in that behalf; and in case of such excepted lease, such costs and expenses shall be charged upon the lessee instead of the lessor, subject as aforesaid, to any express covenant or agreement in that behalf, between any such lessee and his sub-lessee, holding under such lessee upon other than a H Reimburse- fixed fine or customary payment as aforesaid; and that in default of such costs and expenses being duly paid, it shall be lawful for the party to whom the same shall be payable, and he is hereby entitled to receive from the occupier thereof the rents and profits of such building or tenement; and for that purpose to give notice to such occupier to pay over to him such rents and profits; and that thereupon, if such occupier fail to pay such rent and profits accordingly, then it shall be lawful for the person to whom such costs and expenses shall be payable to recover the same, by the summary proceeding hereby provided, in such proportions and at such times as shall be appointed by the award of the said official referees in that behalf; and that after such notice shall be given, and before such costs and expenses shall be paid, it shall not be lawful for any person otherwise entitled to receive such rents and profits and he is hereby disabled to bring any action and from taking any proceeding at law or in equity to recover such rents and profits; provided always, that if on the hearing of the application for the warrant to levy such costs and expenses by distress, according to the provision of this act in that behalf, the occupier, not being an owner, show that he is not bound to pay in respect of such building or tenement any rent or profit, or that the amount of the rent or profit payable by him is not sufficient, then it shall not be lawful to issue such warrant, if there be no rent due or accruing; or, if there be rent due or accruing, then to the extent only of the amount of such rent; and that if such costs and expenses, or any part thereof, remain unpaid, and if the same, or any future occupier, be or become liable to pay rent in respect of such building or tenement, then from time to time, until the same be paid, it shall be lawful to levy the same by distress, according to the provisions of this act in that behalf, upon the same Reimburseor any such future occupier (q). The intentions of this section are well developed, but there is one difficulty which may, perhaps, receive an easy solution, but which is, nevertheless, deserving of a slight notice. The clause before us, (section 49), speaks of the owner, upon whom the payment shall have first fallen. The 47th section directs that an account in writing shall be delivered to the "adjoining owner.” This is a general provision. The 20th section says that the "adjoining owner” shall be the owner of the adjoining premises. The interpretation clause (r) defines "owner" to be the party in possession of the rents, or the occupier. Now, the owner mentioned in section 49 as the owner upon whom the payment shall have first fallen, and the adjoining owner of the 47th section must be deemed occupiers upon many occasions, and must not be held always to be strictly owners, for if otherwise, there will be a variance between this clause and those clauses which charge the person in possession as the debtor in the first instance. The last section upon this part of our subject is that which relates to proportionate contributions. By section 50 (s), "with regard to such costs and expenses of works executed under this act, so far as relates to contribution thereto by persons bound or liable to make contribution, it is enacted, that for the purpose of enabling the party upon whom the payment of such costs and expenses shall fall, either in the first instance or subsequently, to obtain contribution from other persons, being owners according to the meaning of this act, in like degree, it shall be (q) See the section, post, Append. ment and Contribution Clauses. Reimburse- lawful for every such first mentioned person, whether he be freeholder, copyholder, leaseholder, mortgagee in possession, and whatever may be his interest or the nature and extent of such his interest, and whether he hold in his own right, or in right of others, and whatever may be the kinds and degrees of their respective interests, and he is hereby entitled, to a contribution from every other person having as owner an interest in the premises of whatever kind or degree; which contribution is to be computed, according to the amount of his interest, in proportion to that of other persons interested, so far as such persons may be known, or can be reached by process of any Court of law or equity: and that it shall be lawful for any party so interested, and he is hereby entitled to require the official referees to settle and determine the same by their award, and their decision shall be final; and that if the person upon whom the payment of such costs and expenses shall have fallen, have paid, in respect of the interest of another or others, either unknown, or who could not be reached by process of any Court of law or equity, more than his own just proportion, then, on the production of such award, duly made, signed, and sealed, it shall be lawful for such person to have and exercise against other parties against whom such award shall be made, and he is hereby entitled to the like remedies, to compel payment of money, as are hereby given for compelling the first payment of such costs and charges of such expenses." It was at one time intended that the tenant for years should be liable to this contribution, but the terms of the act preclude the possibility of charging the occupier, except in the first instance, unless he be liable to repair under an existing lease, or enter into a special contract to do this particular kind of repair or work. Clauses. A tenant at rack rent was not liable to contribution Reimbursement and under the old law (t). Neither was a tenant liable who Contribution had much improved his premises, and thus became possessed of a beneficial interest (u). It certainly may be a question whether a beneficial occupier may not be chargeable under the respective expressions "owners according to the meaning of this act," and "whatever may be the kinds and degrees of their respective interests” (x). If the party occupying has a beneficial interest, and thus is not a tenant from year to year, nor at will, nor at rack rent, he may, perhaps, be called an owner having an interest in the premises, and the interpretation clause, which allows of an occupier being occasionally called an owner, will then be satisfied. There is not any pretence for saying that an executor or administrator is not liable. Under the old statute, an administrator who appeared to have no assets beyond the improved rent was held liable, and there is not any expression to exempt such a person in the present statute (y). In this case assumpsit had been brought, and after non-assumpsit pleaded, it was further alleged in answer, that before the pulling down of the party wall there had been a judgment recovered against the defendant as administrator of one Newberry, which judgment was still unsatisfied. Replication that the defendant could have paid the expenses of repairing the wall. General demurrer and joinder. The Court held that the portion of rent applicable to the repairs of the wall (t) 3 T. R. 458, Southall v. Leadbetter. Id. 461, Stone v. Greenwell. 8 T. R. 214, Beardmore v. Fox. (u) See the above cases, and 2 B. & Ald. 467, Lambe v. He mans. (x) Section 50, of this act. (y) 1 Chit. Rep. 132, Wilcox v. Newman. 3 Adol. & El. 142, Thacker v. Wilson; S. C., 4 Nev. & M. 659; S. C., 1 Har. & Wol. 131. |