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ment from the acts of a party.1

Express agreements to contribute to the cost of erection are, of course, binding upon the parties to such agreements," but the

such use. Abrahams v. Krantler, 24 Mo. 68; s. c., 66 Am. Dec. 698; Bisquay v. Jennelot, 10 Ala. 245; s. C., 44 Am. Dec. 483.

1. Where one party erected a house with the wall party upon the land of the adjoining owner who had reason to know that the wall was being erected and that the party building it expected contribution toward its cost when used by the other party. Held, that the jury might properly imply an agreement to contribute from the failure of the owner of the vacant lot to disclaim any liability. Day v. Caton, 119 Mass. 513. See also Huck v. Flentye, 80 Ill. 258.

Statutes. In these States where there are statutes providing that one who builds may erect his wall one-half upon the adjoining lot, no express agreement to contribute is necessary. See Lugenbuhler v. Gilliam, 3 Clark (Ia.) 391; Bertram v. Curtis, 31 Iowa 46; Pew v. Buchanan (Iowa) 34 N. W. Rep. 453; Thonison v. Curtis, 28 Iowa 229; Davis v. Grailhe, 14 La. Ann. 338; Costa v. Whitehead, 20 La. Ann. 341; Auch v. Labouisse, 20 La. Ann. 553; Marion v. Johnson, 23 La. Ann. 597; Irwin v. Peterson, 25 La. Ann. 300; Damaker v. Riley, 14 Pa. St. 435; Roberts v. Bye, 30 Pa. St. 375; s. c., 72 Am. Dec. 710; Beaver v. Nutter, 10 Pa. St. 345; Heimbach's Appeal (Pa.) 7 Atl. Rep. 737.

One who takes with Actual Notice of Agreement.-Where owners of adjoining premises made an agreement under seal for themselves, but not acknowledged and recorded, whereby one was to build a party wall, and the other, when he should use it in the construction of his building, was to pay half the cost of such wall, the effect of such agreement was to create cross-easements as to each owner, and a purchaser of the estate with notice, would take it burdened with the liability to pay one-half the cost of the wall whenever he should avail himself of its benefits.

One purchasing under a quit-claim deed, would not, without actual notice, be bound by such agreement. Sharp v. Cheatham, 88 Mo. 498; Keating v. Korfhage, 88 Mo. 524; Wickersham v. Orr, 9 Iowa 253.

Basis on which Contribution is to be Made. The party seeking contribution for use of a party wall can recover onehalf of the original cost of building only, not one-half of the present value. Florence v. Maillot, 22 La. Ann. 114; Auch v. Labonisse, 20 La. Ann. 553

Additions Made Use of by Adjoining Owner.-Where one owner of a party wall had made additions thereto by underpinning and adding to height and subsequently these additions were made use of by the adjoining owner. Held, that the adjoining owner was under a duty to contribute one-half of the value of the additions used at the time they were used. Sanders v. Martin, 2 Lea (Tenn.) 213; s. c., 31 Am. Rep. 598.

Where defendant was sued for onehalf the value of a wall which he had made use of as a party wall. Held, that he had no interest to question plaintiff's title further than to ascertain whether the claim could safely be paid to him. Irwin v. Peterson, 25 La. Ann. 300.

2. Ringe v. Baker, 57 N. Y. 209; s. c., 15 Am. Rep. 475; Musson's Appeal, 70 Pa. St. 26; Ensign v. Sharp, 72 Ga. 707; McCourt v. McCabe, 46 Wis. 596.

Where a Party Sells before Fulfilling Contract to Contribute.-A party contracted with an adjoining owner to pay for one-half of as much of a party-wall as he should use when he built upon his lot. Before building, however, he sold his lot to a third person thus putting it out of his power to fulfill his contract. Held, that he was liable in damages to the first party for not building and paying for a part of the wall within a reasonable time. Rawson v. Bell, 46 Ga. 19.

Parol Contracts.-An action may be maintained on an oral agreement between adjoining owners, that one shall erect a party wall and the other pay half the expense, if the wall is built before any revocation. But if the one agreeing to build receives from the other a notice of sale of his lot before commencing to build, this is a revocation of the license, and the action will not lie. Rice v. Roberts, 24 Wis. 461.

A parol contract to contribute toward the expense of erecting a party wall is binding on the parties to the

authorities conflict on the point as to whether an agreement to contribute made under seal is a covenant running with the land or a mere personal contract.1

The expense of making repairs, however, must be borne by both parties, provided such repairs are not in the nature of altera

contract only. Joy v. Boston Penny Savings Bank, 115 Mass. 60; Jenkins v. Spooner, 5 Cush. (Mass.) 419; s. c., 52 Am. Dec. 739.

1. Covenant Running with the Land. -GRAY J., says: "The defendant having made use of the wall so built, cannot deny the plaintiff's right therein, and is bound to compensate her for such use, either according to the covenant in the deed from his grantors to the plaintiff, or according to the value of the wall. Richardson v. Toby, 121 Mass. 457. See also Savage v. Mason, 3 Cush. (Mass.) 500; Weld v. Nichols, 17 Pick. (Mass.) 538; Bronson v. Coffin, 108 Mass. 175; Maine v. Cumston, 98 Mass. 317; Rothe v. Ullman, 104 Ill. (Dis. in 115 Ill. 119); Platt v. Eggleston, 20 Ohio St. 414; Thomson v. Curtis, 28 Iowa 229; Brown v. Pentz, 1 Abb. (N. Y.) App. Dec. 227 (Dis. in Scott v. McMillan, 76 N. Y. 141).

Party Wall Agreement Mentioned in Deed. Where the deed of a party mentioned a party-wall agreement with adjoining owner. Held, that the grantee in the deed became liable to contribute under the covenant in the same manner as one assuming a mortgage, that the covenant became united with and formed part of the consideration for which the land was parted with. Stewart v. Aldrich, 15 N. Y. Sup. Ct. 241; Christie v. Mitchinson, 36 L. T., 621.

Agreement that Whole Wall Shall Remain Property of Builder Until Contribution by the Other Party.-Cases, therefore, where parties are, by the deed under which they take title, given one-half of a wall as a party-wall when or upon condition of making payment, and cases in which the owner of one lot has licensed the owner of the adjoining lot to build a wall for himself, resting one-half of it on each lot, and reserving the privilege of thereafter purchasing one-half the wall as a partywall, are not analogous. In all such cases the title to the whole wall may be regarded as appurtenant to the lot of the builder, and so passing, by every conveyance of it, until a severance of the half by the payment of the pur

chase money. The sale of the half of the wall does not occur, nor the title to it pass, in those cases, until the payment is made; and so necessarily it is, constructively, a sale by the assignee of so much of the wall. His right to the purchase money is not because he is the assignee of a covenant running with the land, but because he is the vendor of so much of the wall. Gibson v. Holden, 115 Ill. 199. See also Tomblin v. Fish, 18 Ill. App. 439; Standish v. Lawrence, 111 Mass. III.

Covenant a Personal Contract Only.— Cole v. Hughes, 54 N. Y. 444, s. c., 13 Am. Rep. 611; Hart v. Lyon, 90 N. Y. 663; Scott v. McMillan, 76 N. Y. 141; Gibson v. Holden, 115 Ill. 199, s. c., 56 Am. Rep. 146, affg. s. c., 16 Íll. App. 411; Behrens v. Hixie, 26 Ill. App. 417; Eckleman v. Miller, 57 Ind. 88; Bloch v. Isham, 28 Ind. 37; s. c., 92 Am. Dec. 287; Kells v. Helm, 56 Miss. 700.

L. the plaintiff, owned a lot in fee; C held a contract for the adjoining lot; L erected a building upon his lot, and, by agreement with C, placed half of the partition wall on C's lot; and when C built upon his lot, he, and those deriving title under him, were to pay L half the cost of the wall. C sold his interest to W, who obtained a deed from the owner of the fee. W then conveyed the lot to B, the defendant, allowing him a deduction of $100 from the purchase money, on account of the liability to L for half the wall. The deed to B contained this clause: "The above conveyance is executed subject to the wall now standing on the north line of said lot, the party of the second part assuming all the liability under or by reason of any contract now existing in respect to said wall. B erected a building on his lot, using the partition wall. Held, that this was not an agreement, in terms, to pay L, or to pay for the wall or any part of it, but was simply an undertaking to assume W's liability. The parties thereby intended only to limit W's covenant, and to save him harmless from all personal liability. Held, also, that the assignment from C of the contract for

tions made for the benefit of one party only.'1 V. REMEDIES.-See note 2.

a deed, under which W obtained his title, imposed no personal liability upon him. ib.

in

Held, also, that the deduction from the purchase money was not an admission of W's liability, but merely indicated that the parties were doubt, and that B took the risk, for that consideration. Lester v. Barron, 40 Barb. (N. Y.) 297.

1. List v. Hornbrook, 2 W. Va. 340; Campbell v. Mesier, 4 Johns. Ch. (N. Y.) 335; s. c., 8 Am. Dec. 570.

A was lessee for ninety-nine years of premises in the city of London, the whole of which were underlet by him for improved rents to persons who took each an interest in his portion of them greater than that of a tenant from year to year. Held, that A, was, nevertheless, liable, as an "adjoining owner," to contribute to the expense of repairing or rebuilding a party wall by his neighbor, under the metropolitan building act, 18 and 19 Vict., c. 122. Hunt v. Harris, 19 C. B. (N. S.) 13.

Where one of the proprietors of a dangerous party wall neglected to join in making repairs. Held, that he could not recover for any inconvenience occasioned by the other party making such repairs with due care and dispatch. Crawshaw v. Sumner, 56 Mo. 517; Partridge v. Gilbert, 15 N. Y. 601; s. c., 69 Am. Dec. 632.

Landlord and Tenant.-The tenant of a house covenanted in his lease to pay a reasonable share and proportion of supporting, repairing and amending all party-walls, and to pay all taxes, duties, assessments, and impositions, parliamentary and parochial, “it being the intention of the parties that the landlord should receive the clear yearly rent of £60 in net money, without any deduction whatever." During the lease the proprietor of the adjoining house built a party-wall between that house and the house demised under the statute. Held, that the tenant (not the landlord) was bound to pay the moiety of the expense of the party wall. Barrett v. Bedford (Duke), 8 T. R. 602.

A tenant under covenant to repair could not maintain an action under the statute, against his landlord, for a moiety of the expense of re-building a party-wall, which, being out of repair, the tenant pulled down and rebuilt at

the joint expense of himself and the occupier of the adjoining house, to whom he had given the notice required by the statute, in his landlord's name, but without his authority. Pizey v. Rogers, R. & M. 357.

2. Injunction.-An injunction will be granted to restrain the owner of onehalf of an ancient solid party-wall, long used for the support of buildings erected on each side of it, from cutting away a portion of its face, and erecting a new wall upon his own land at a distance of two inches from that portion of the ancient wall which is left standing, and connected with it by occasional projecting bricks and ties. Phillips v. Bordman, 4 Allen (Mass.) 147.

Remedy for Obstruction.-If one of two tenants in common of a party-wall excludes the other from the use of it by placing an obstruction on it, the only remedy of the excluded tenant is to remove the obstruction. Watson v. Gray, 14 Ch. D. 192; 49 L. J., ch. 243; 42 L. T. 294; 28 W. R. 438; 44 J. P. 537; Cubitt v. Porter, 2 M. & R. 267; 8 B. &. C. 257.

Choice of Remedies.-A proceeding at law, which set out a contract and sought to enforce it, for the purpose of recovering one-half of the cost of building the party-wall, was practically as effectual as a bill for the specific execution of the contract. Under it the plaintiff obtained a judgment for money due to him, while the defendant is protected in his right to the conveyance of the land he purchased. Ensign v. Sharp, 72 Ga. 708. See also Rindge v. Baker, 57 N. Y. 209; s. c., 15 Am. Rep. 475.

Damages.-Loss of profits, consequent upon such a trespass (in this case want of due care during alteration) are properly allowed as an item of damages, provided they are such as might naturally be expected to follow from the wrongful act, and are certain, both in their nature and in respect to their cause.

Where a business has been partially interrupted, because of the trespass, it is competent to prove upon the question of damages the amount of business previously done, and how much less the business was during the months when the injury occurred than during the corresponding months of the pre

VI. PRACTICE AND PROCEDURE.-See note 1.

PASS.-(See TICKETS AND FARES.)-I. In speaking of conveyances or sales, that is said to pass which is transferred from one party to the other, by force of the instrument or contract. Thus the title is said to pass by delivery of the deed; appurtenances are said to pass by a conveyance of a lot and buildings; and, by another form of the expression, the deed, the delivery, etc., is said to pass the lands or the goods.2

vious year, and the profits upon the business; and where the evidence is sufficient to show that the falling off of business was in consequence of the wrongful acts of the defendant, the loss of profits thus established is a proper item of damages. Schile v. Brokhahns, 80 N. Y. 614.

1. Proper Parties.-An administrator may properly bring an action on a party-wall agreement. Peck, 2 Duer (N. Y.) 90.

Burlock v.

If a party-wall be used by devisees, an action for contribution must be brought against them and not against personal representatives. Keteltas v. Penfold, 4 E. D. Smith (N. Y.) 122. In an action by one joint owner of a party-wall to compel the removal of an addition made by his co-owner, the mortgagees of defendant's lot are properly allowed to become parties defendant, as they are interested in resisting plaintiff's claim. Everett v. Edwards (Mass.) 22 N. E. Rep. 52.

Where a contractor was to obtain one-half of his compensation for building a party-wall from the adjoining owner, the legal title to the wall being in the builder. Held, that the builder was a trustee of the contractor, and if the builder sold with notice to the purchaser of the agreement, the purchaser becomes substituted as trustee and the contractor must bring his action in the name of the substituted trustee, but if the builder sold without notice to the purchaser, then the contractor must sue the builder for money had and received. Roberts v. Bye, 30 Pa. St. 375; s. c., 72 Am. Dec. 710.

Form of Action.-On a count for money laid out and expended, the plaintiff cannot recover one-half the value of a party-wall used by the defendant, but only one-half the money actually expended. Peck v. Day, 1 Ñ. Y. Leg.

Obs. 312.

An action on the case is the proper remedy by one tenant in common of a party-wall against his co-ten⚫18 C. of L-2

ant, for an injury to the wall and the house of the plaintiff of which it forms a part, caused by the negligence and want of skill on the part of his co-tenant in making an excavation on his own land. Moody v. McClelland, 39 Ala. 45.

Trespass does not lie by one part owner or tenant in common against the other. Cubitt v. Porter, 2 M. & R. 267; 8 B. & C. 257; Wiltshire v. Sidford, 1 N. & R. 403.

Statute of Limitations.-The right to recover for a share of the money expended in building a party wall may be barred by the statute of limitations. List v. Hornbrook, 2 W. Va. 340.

Nature of Right to Contribution.-The right to recover under a covenant of contribution is a chose in action. McDonnell v. Culver, 8 Hun (N. Y.) 155.

The right to recover on a covenant of contribution is subject to attachment and execution. Davids v. Harris, 9 Pa. St. 501.

Sufficiency of Proof.-In order to recover a portion of the cost of a partywall, an agreement to contribute must be proved, and it is not sufficient to allege that the agreement is not in the plaintiff's possession and therefore he cannot state its terms. An agreement must be shown by some proper averment that it contains provisions giving title to relief. McCord v. Herrick, 18 Ill. App. 423.

2. Abb. Ľ. Dict. See generally SALES; ASSIGNMENT, vol. I, p 826; CONVEYANCES, vol. 4, 123.

Rev. Stats. of Mo., § 2199, provides if the testator shall "by will pass any real estate to his wife, such devise shall be in lieu of dower." Held, that the word "pass" in the statute means devise and nothing else. Young v. Boardman, 97 Mo. 181. See also Gant v. Henley, 64 Mo. 162.

The mere endorsement and delivery of a bill of lading by way of pledge for a loan, does not "pass the property in the goods," in the sense of a statute, 17

2. Likewise a bill or resolution pending before a deliberative or legislative body is said to pass, or to be passed, when all the requisites to effect assent have been finally and formally given. A bill has passed the House or the Senate when the majority of either has voted for it, and this has been duly attested by the presiding officer. It may be said to have passed when both houses have voted for it, though it has not received executive approval, if the connection shows this is excluded; but generally, "to pass," or "passed," applied to a law, includes approval of the Crown, President, or Governor.1

3. When the offenses of forgery or counterfeiting are under discussion, to pass is to circulate, put forth, or utter the counterfeit or forged coin or instrument.2

PASS BOOKS. (See ACCOUNT STATED, vol. I, p. 124.)—A book used by merchants with their customers, in which an entry of goods sold and delivered to a customer is made. It is kept by the buyer, and sent to the merchant whenever he wishes to purchase any article. It ought to be a counterpart of the merchant's books, as far as regards the customer's account.3

PASSENGERS. See CARRIERS OF PASSENGERS; SLEEPING CARS; TICKETS AND FARES.

PASSPORT. (See also SEA LETTER).-I. A paper containing a permission from the neutral state to the captain or master of a ship or vessel to proceed on the voyage proposed. It usually contains his name and residence; the name, property, description, tonnage, and destination of the ship; the nature and quantity of the cargo; the place from whence it comes, and its destination,

which provides that every endorsee of
a bill of lading, "to whom the property
in the goods therein mentioned shall
pass," shall have transferred to him all
the rights of suit, and be subject to the
same liabilities in respect of such goods,
as if the contract contained in the bill
of lading had been made with himself.
Sewell v. Burdock, 10 App. Cas. 74.
1. Abb. L. Dict.

An act of the legislature is passed, only when it has gone through all the forms made necessary by the constitution to give it force and validity, as a binding rule of conduct for the citizen. Whether it receives the signature of the governor, or remains in his hands unreturned for ten days, or being vetoed, is carried by two-thirds of both houses, its passage is dated from the time it ceased to be a mere proposition or bill, and passed into a law. Whart

man v. Philadelphia, 33 Pa. St. 208. See also Chumasero v. Potts, 2 Mont. 285.

2. Abb. L. Dict. See also COUNTERFEITING, vol. 4, P. 333.

"Now Passed."-An indictment al

leged that an offence was committed
on a certain day of September “now
passed," it was held, that the time was
not stated with sufficient certainty; as
this does not in terms or by reference
state any year.
Commonwealth v.
Flynn, 3 Cush. (Mass.) 525.
3. Bouvier's L. Dict. See generally
ACCOUNT AND ACCOUNT STATED,
vol. 1, p. 108, 110.

Among bankers, the term pass-book is given to a small book made up from time to time from the banker's ledger and forwarded to the customer; this is not considered as a statement of account between the parties; yet when the customer neglects for a long time to make any objection to the correctness of the entries he will be bound by them

Bouvier's L. Dict. See also AcCOUNT STATED, vol. 1, p. 117, n.; GIFTS, vol. 8, pp. 1345, 1349, n.

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