between parties.

to be built.

Elevation

heirs, executors, and administrators, covenant, promise, and agree, with and to the said A. B., his executors, administrators, and assigns, that he, the said C. D., his executors or administrators, shall and will, at his and their own proper cost and Messunges charges, erect five messuages or dwelling-houses, in one continued line or row, upon a piece or parcel of ground of the said A. B.'s, situate, &c., according to the elevation delineated in the ground plot or and plan. plan thereof, drawn in the margin of these presents, and with such proportions of brick, and such scantlings of timber, heights, and numbers of stories, as hereafter is mentioned, (that is to say,) Height, &c., the cellars and all other stories of the said mesaccording to act of parlia- suages to be of such heights as is set forth for the second rate of buildings in the act of parliament passed in the fourteenth year of the reign of his Îate majesty George the Third;(s) the fore fronts

ment.

Fronts.

he is desirous of building a row of houses, and hath contracted with the said C. D. for building and completing the same in the manner, and upon the terms and conditions hereinafter mentioned. Now these presents witness that the said C. D. doth," &c.

(s) By the building act 14 Geo. III., c. 78, being an act for the further and better regulation of buildings and party walls, and for the more effectually preventing mischiefs by fire, within the cities of London and Westminster, and the liberties thereof, and other the parishes, precincts, and places, within the weekly bills of mortality. It is (by sec. 41) enacted, that persons at whose expense any party wall or party arch shall be built, shall be reimbursed by the owner entitled to the improved rent of the adjoining building or ground, who shall at any time make use of it, or part of the expense of building the same, in the proportion of the actual expense, where the class of buildings is the same, or of one moiety of the estimated expense, (according to the quantity of wall made use of,) where the class of the building last erected is inferior to the former. The rate of expense is to be estimated at £7 15s. per rod of new brick work. Ten days after a party wall is finished, an account is to be left with the owner of the adjoining building of what he is liable to pay; and if the plaintiff before action gives three months' notice, and recovers, he is to have double damages. The owner of the improved rent, not of the ground rent, is liable to pay the expense of a party wall.-Peck v. Wood, 5 T. R. 130. The lessor, at a rack rent, is liable, not the tenant, although he has improved the house demised.-Beardman v. Fox, 8 T. R. 214. The assignee of a lessee, at a fixed rent, is not liable, although he has improved the annual value.-Lamb v. Hemans, 2 B. & A. 467. But the lessee, at a rack rent, underletting at an advanced rent, is liable.-Langster v. Birkhead, 1 B. & P. 303. A tenant, who re-builds without lease, or an agreement for one, is not liable by using the party wall of the adjoining house, although he obtains a beneficial lease in consequence thereof.-Taylor v. Read, 6 Taunt. 249. A sub-tenant building a party wall on his part of the ground, and making use of the party wall, and the agreement containing no stipulation or provision in case should be done, the original lessee was not entitled to compensation, although the sub-tenant let at rent exceeding that of his building agreement, inasmuch as the lessee was the owner

and back fronts to be two bricks and a half thick Thickness of bricks. to the top of the cellar floor, the first and second stories to be two bricks in the thickness, the third story above ground to be one brick and a half in thickness, and the garrets one brick in thickness; the partition walls between house and house to be

of the improved rent within the statute.-Williams v. Pokelington, 2 B. & A. 86. Semble, that the clause does not apply where the land adjacent to a party wall is under an agreement with the builder.—Id. The occupier of a house, adjoining one which has been pulled down and re-built by a building company, is not entitled to this remedy by the reason of the removal of a party wall, after a notice given under the building act, although the company may not have exactly complied with the provisions of the building act in respect of such party wall.- Rex v. Hungerford Market Company, 2 N. & M. 340. An executor or administrator is liable, although he has no other assets than the improved rent.-Thacker v. Wilson, 4 N. & M. 659. 3 Adol. & Ellis, 142. 1 Harg. and Woll. 131. The expenses of pulling down and re-building a party wall are a charge upon the land in the hands of the owner of the improved rent.-Id. The plea of an administrator, sued under this statute, that he had administered all the estate except a sum not sufficient to satisfy a judgment obtained against him, was held no answer to the action.-Id. The bona fide intention to pursue the directions of the act, although a trespass be committed not justifiable, will entitle the defendant to notice.-Wells v. Ody, 2 C. M. & R. 128. 7 C. & P. 22. 1 Gale, 137. And the action must be commenced within three months after the injury done, and after twenty-one days' notice given.Pratt r. Hillman, 6 D. & R. 360. 4 B. & C. 269. And on a plea of not guilty, he may object to the absence of such notice.-Id. It appears that notice to the district surveyor applies only to cases where a party intends to take down any building, which notice the surveyor may waive.Id. This act does not protect a party from liability for collateral damage, resulting from the building so erected, for the occupier of an adjoining house may maintain an action when his windows are darkened. -Id. By sec. 100 of this act, if the plaintiff be non-suited in the action, the defendant will have judgment for treble costs. Semble, that in such case it is not necessary for the defendant to enter a suggestion on the roll to entitle himself to treble costs.-Wells v. Ody, 2 C. M. & R. 184.

The accounts prescribed by the 41st sec. must be delivered, and a formal Accounts, demand made, whether the house be occupied by owner or tenant before notice, and action brought.-Philip v. Donati, 2 Taunt, 62. Although the statement demand. contains the prices received for the brick work, exceeding the prices fixed by the statute, yet if it contained the quantity of work done, and materials allowed for it, was held sufficient; and a demand for payment referring to such account, although greater than could be recovered, was a good demand.-Reading v. Barnard, M. & M. 71. An encroachment will not prevent the plaintiff from recovering, where the jury finds there was no intention of encroachment: an objection should be taken while the work is in progress.-Id. The three months' notice required applies only where the person liable to pay cannot agree with the owner of the adjoining house.-Peck v. Wood, 5 T. R. 130.

Party walls are not common property. If one party pulls down any ad- Right of prodition made by the other, he is liable to an action for so much as stood on perty in parthe part of the wall erected on plaintiff's land; the property of a wall, tition walls. although erected at a joint expense, follows the property of the land whereon it stands.-Matts v. Hawkins, 5 Taunt. 20." The penalty given by sec. 67 is recoverable against the master builder, and not against the proprietor of the premises.-Meynut v. Southgate, 3 Esp. 223. Under see. 100, limiting the action to three months, where nothing has been done by the party entitled to bring his action within that time, he must bring his ejectment.-Trotter . Simpson, 5 C. & P. 51.

K

two bricks in thickness at the least to the top of the cellar stories, and from thence to the garret floor to be one brick and a half in thickness at the least, and above the garret floor one brick in thickness; the brick work in the fore front to be wrought with stock bricks not rubbed, the straight arches in the front to be a brick and a half, and to rub the bricks round the jambs of the window in the brick work of the fore fronts, and to work a fasia at every story of Well-burnt each house in the front, with at the foot of it; brick to be that the said bricks shall be a good and sufficient well-burnt brick, and the mortar well wrought and tempered, and made of good lime and sand, or such other stuff as the said A. B. or his surveyor shall Balcony of appoint; that there shall be a balcony of wood or to the front iron to the front of every house, which shall not

used.

wood or iron

of every

house.

ney jambs.

timber to be

project more nor less than three feet and a half beyond the upright of the said houses, with cantiliver cornice all along the said front to M.-street, according to a model thereof, to be signed by the said A. B., or his surveyor; there shall also be, &c.; No timber to AND that no timber shall be laid within twelve inches be laid within twelve in- of the fire sides of the chimney jambs; and that all ches of chim- joists on the back of any chimney shall be with timber at six inches distance from the back; and that no summers or girders shall lie over the heads Ends of the of any doors or windows; and that all the ends of laid in loom. timber being in the wall shall be laid in loom; that all mantle trees shall be oak timber, and not less than seven and nine inches; that the tassels shall be of oak three inches thick, and to reach within four To make a inches of the back of the chimney, &c.; AND shall and will make a common sewer down and along the middle of the said street, of feet circumference, And drains. With good · -bricks; and also shall and will make drains from the said houses into the said sewers, and that no house of office shall have issue into the And to level same; and also shall level and pave the said street and pave. so far as to the middle of the same, and shall pave along the said ground four feet in depth from the upright of the said walls of the said building with

common sewer.

oaken posts.

plastering.

Swindon stone, descending one inch at least from the wall; and set up oaken posts of seven inches square, To set up and three feet and a half above the ground, twelve feet each from the other, all along before the said ground in the street, at five feet distance from the upright of the said wall, and make kennels all along the said street, next the said post; and that all and Glazing and every of the said houses shall be well and properly glazed, slated, and plastered, and in all things completely finished as to brick, carpenter's, plasterer's, smith's, glazier's, plumber's, painter's, and other work whatever, and made fit for habitation, on or before the day, of, &c., next ensuing the date of these presents. (Add the usual clause of arbitration, and also the penal clause, if required.) (See agreement for building, pp. 97, 98.) In witness, &c.

(15.)

An Agreement for a Partition of leasehold
Premises.

ARTICLES of agreement made the, &c., BETWEEN Parties.
A. B., of, &c., of the one part, and C. D., of,
&c., of the other part (as follows).

being pos sessed.

WHEREAS the said A. B. and C. D. are possessed Recital of of, or entitled as joint tenants,(t) (or "tenants in common,") to certain leasehold messuages or tenements and premises, situated, &c., for the term of

ment for

years, commencing, &c., under and by virtue of, &c. (state the deed or will). AND whereas, the And agreesaid A. B. and C. D. have agreed to make such partition. partition of the said estate and premises as hereinafter is particularly expressed; NOW THESE PRE- Witness SENTS WITNESS, that in pursuance of the said

part.

(t) In equity, joint tenancies are discountenanced.-Hawes v. Hawes, The courts 3 Atk. 524. A lease by one of joint tenants will operate as a severance. discounte-Clerk v. Clerk, 2 Vern. 323. Also a mortgage.-York v. Stone, 1 Salk. nance joint 158. Or covenant to sell.-Brown v. Randle, 3 Ves. 257; and see Ireland tenancies. . Rittle, I Atk. 541. Whatley v. Dawson, 2 Sch. and Lef. And according to the cases of Fisher v. Wigg, 1 P. Wms. 21. Salk. 392. Partricke v. Powlet, 2 Atk. 55. Clinan v. Cooke, 1 Sch. and Lef. 35, courts at law are inclined to the same construction.

Division of the hereditaments.

Assign

ments to be

to each other

agreement, and for carrying the same into effect, they, the said A. B. and C. D., do, for themselves severally, and for their several and respective executors and administrators, covenant and agree, to and with each other, that each of them, the said A. B. and C. D., and their respective executors, administrators, or assigns, shall and will make, do, and execute, and join, and concur in doing and executing, all such acts, deeds, assignments, and assurances, as shall be requisite or proper, at their joint expense, according to the respective values of their estates and interests, for parting, severing, and dividing of the said messuages, lands, and hereditaments, (u) (so devised to them by the said will,) in manner following, that is to say,—

That the whole of the said messuage and hereditaments situate at, &c., shall belong to, and become the sole property of, the said A. B., and that the whole of the said hereditaments at, &c., shall belong to, and become the sole property of, the said C. D.

And it is hereby declared and agreed, by and executed by between the said parties to these presents, that all the parties such other assignments and assurances shall be made and executed by and between the said parties, and all other necessary parties, as by their respective council shall be advised, for effecting the said partition as soon as conveniently may be after the execution of these presents, and for vesting the said messuage or tenement and premises at, &c., in the said A. B., his executors, administrators, and assigns, for the remainder of the said term of, &c., which shall be then to come and unexpired, and for vesting the said messuage, &c., at, &c., in the said

Arbitration

as to an

(u) If an arbitrator is to be appointed to for settling the payment of an equivalent, the clause may be inserted here, thus: "And it is further equivalent. agreed, that it shall be referred to L. M., of, &c., for settling the equivalent which ought to be paid or made in money, or otherwise, by either of the said parties to the other of them, for making the said hereditaments at, &c., of equal value with the said hereditaments at, &c., aforesaid, to whose judgment and determination the said parties hereto shall and will stand and abide in all things."

(To prevent a court of equity interfering, the agreement for a partition must be fair and reasonable.)