or as he may direct. . . . And it is hereby referred to the Taxing Master to tax the costs of the plaintiff and the defendant John Scott, as between solicitor and client, of this suit, and of and relating to such conveyance; and it is ordered that the plaintiff do pay and retain the amount of such costs, when so taxed, out of the said purchase money of 300l. when so received by her. Liberty to apply.' Note for reference-Morg. & Dav. Costs, 186. COURT OF QUEEN'S BENCH. HILARY TERM. 328) is in point. There a debtor, being unable to pay his creditors, they signed an agreement (assented to by the debtor, who was always willing to perform his part of the engagement) to accept, payment by his covenanting to pay a certain proportion of his income to a trustee, of their nomination, for their benefit; but the auditors never nominated a trustee, and the agreement was never acted upon; the Court nevertheless held the agreement a good defence to an action against the debtor by one of his creditors, as constituting a valid new contract between the parties. [Blackburn, J.-Your difficulty here is, that there is no release, and consequently the deed contains nothing binding upon the creditors.] In Whitmore v. Turquand (30 L. J., Ch., 354), Lord Campbell, C., says, " Although Before COCKBURN, C. J., CROMPTON, BLACKBURN, and this deed contains no release nor declaration that the MELLOR, JJ.] JONES v. MORRIS.-Jan. 17. Debtor and creditor-Trust deed-Release-Bankruptcy Act, 1861 (24 & 25 Vict. c. 134), sect. 192. To an action of debt, the defendant pleaded a deed under sect. 192 of the Bankruptcy Act, in the form given by Schedule (D.) The deed, to which the plaintiff was an assenting party, contained no release by the creditors: -Held, that it was not pleadable in bar to the action. Declaration on a bond for 10001., bearing date the 27th September, 1865. Plea, that after the accruing of the cause of action, and after the Bankruptcy Act, 1861, came into operaton, and before this suit, the defendant being indebted to divers persons, and unable to pay, he, and certain persons as trustees, entered into and executed a deed, in the form in Schedule (D.) of the act, made between the defendant of the one part, and the trustees of the other, on behalf of, and with the assent of, the plaintiff and other creditors; and which deed the plaintif undersigned as a creditor; by which deed the defendant conveyed all his estate and effects to the trustees absolutely, to be applied and administered for the benefit of the creditors of the defendant in like manner as if the defendant had been at the date of the deed adjudged a bankrupt. Allegation of the consent of the requisite majority of the creditors, the due registration of the deed, with certificate thereof, &c. And that immediately upon the execution of the ded by the defendant, possession of all the property comprised in it, of which the defendant could give or order possession, was given to the trustees; and that all things had happened and been done by the defendant, and the trustees, and the creditors, necessary to make the deed, and the same is, as valid and binding on all the defendant's creditors as if they were parties to, and had executed it. Demurrer, and joinder therein. H. James, in support of the demurrer.-Eyre and Others v. Archer (16 C. B., N. S., 638; S. C., 10 Jur., N. S., 802) is decisive of the question. There it was held, that a composition deed in the form given in Schedule (D.) of the Bankruptcy Act, 1861, is no bar to an action without the addition of a clause of release. [Crompton, J.-The Court of Exchequer have recently pronounced a similar decision in Clarke v. Williams and Others (34 L. J., Ex., 60).] Macnamara, in support of the plea.-A deed in conformity with Schedule (D.) of the Bankruptcy Act, 1861, is a substituted contract between the debtor and each of his creditors, and operates as an extinguishment of all existing debts. Moreover, the plaintiff is himself an assenting party to the deed, which contains a cessio bonorum, of which he is entitled to the benefit, and has waived his right of action. To hold otherwise would be to enable him to commit a fraud as against the other creditors. Good v. Cheeseman (2 B. & Ad. dividend is to be taken in full satisfaction of the debt, the arrangement is in the nature of a cessio bonorum under the Roman civil law; and I think that when a dividend has been received, satisfaction is to be inferred." Ar PER CURIAM.-We are of opinion that Eyre v. cher was rightly decided, and that case is decisive against the defendant. There will be judgment for the plaintiff.-Judgment for the plaintiff. [Before COCKBURN, C. J., BLACKBURN and MELLOR, JJ.] SUMNER and Others v. BROMILOW and Others.-Jan. 17 and 20. Landlord and tenant-Fixtures, right of tenant to remove. By indenture of lease, the lessors demised to the lessees certain land, on which the lessees covenanted to erect saltworks, and at the end of their term to leave at the disposal of the lessors all the fixed materials, of what nature or kind soever, that should be in or about the said works, or in anyways relating thereto," save and except all the saltpans and other movable articles made use of at all or any of the said works." Afterwards the defendants, the representatives of the original lessees, surrendered their term in the premises, and took a fresh lease thereof, thereby covenanting, as to the saltpans and other articles" made use of in the said works, that they should at the end of the term be at liberty to take and carry them away, making good such damages to the freehold as might be consequential upon their removal, but with an option to the lessors of purchasing the saltpans and movable articles. On the 13th December, 1861, they underlet the premises, in violation of the terms of the lease, whereupon, on the 23rd June, 1862, the plaintiff's demanded repossession, and on the 7th July, 1862, brought ejectment. Between the 18th January and the 17th March, 1863, on which latter day they confessed judgment, the defendants removed, and sold a quantity of the fixtures:-Held, that there was nothing in the covenant to restrain them from removing trade fixtures, and that they were entitled to a reasonable time for removing them, dating from the day on which the plaintiff's demanded repossession. The first count of the declaration contained three breaches of covenant in a lease from the plaintiffs to the defendants. The first was for not, during the term and before the determination thereof, repairing the wychhouses, panhouses, saltworks, storehouses, reservoirs, counting-house, cottages, and other buildings, which were at and after the making of the lease erected upon the demised premises; and a certain pit and shaft sunk by the defendants on the hereditaments and premises thereby demised; and for not, at the determination of the term, delivering up quiet and peaceable possession of all and singular the hereditaments and premises, with the erections, buildings, and improvements made thereon, together with the and would yield and deliver up the quiet and peacebrine cisterns and other things therein mentioned, able possession of all and singular the said hereditabeing other than the saltpans and other articles, de- ments and premises, with their appurtenances, unto tached chimney, panhouse, smithy, and carpenter's the lessors, their heirs and assigns, in such good reshop, which the defendants were entitled to remove. pair and condition as aforesaid; and also leave at the The second breach was for not making good the da- disposal of the said lessors, their heirs and assigns, mage caused by the removal of the saltpans and other all the fixed materials of what nature and kind soever articles which the defendants were entitled to remove. that should be used in or about the said intended Third breach, for underletting without the plaintiffs' wychhouses or saltworks, or any ways relating thereto, consent. The second count, after repeating all the save and except all the saltpans and other movable arallegations in the first count antecedent to the first ticles made use of at all or any of the said wychhouses breach of covenant therein mentioned, stated that and saltworks, which they, the said lessees, their exeafter the condition was broken as therein mentioned, cutors, administrators, and assigns were to take and and before the plaintiffs entered for such breach, the carry away for their own use and benefit, they, the defendants pulled down a part of the premises, and said lessees, their executors, administrators, and asdisannexed fixtures and effects belonging to the plain- signs, making good all such injury or damage as might tiffs, being other and different from the saltpans and be done to such intended wychhouses or saltworks by articles which the defendants were empowered to re- the removal of such pans. move, and other than the detached chimney, smithy, and carpenter's shop, mentioned in the said second count. Third count, for waste. Fourth count, for trespasses committed after the determination of the term. Fifth count, in trover. The defendants pleaded twenty-one pleas, the first being a plea of payment into court of 2001. to the first breach in the first count. The plaintiffs joined issue on all the defendants' pleas, and demurred to the sixth, seventh, fifteenth, and sixteenth pleas, and new assigned to the sixth, seventh, eleventh, twelfth, fifteenth, and sixteenth pleas. The defendants joined in demurrer, and pleaded not guilty to the new assignments. At the trial, which took place at the Liverpool Winter Assizes, 1863, a verdict was entered by consent for the plaintiffs, subject to a reference, with power to the arbitrator to state a special case, which was afterwards done substantially as follows: By indenture of lease, bearing date the 6th October, 1798, John Sumner and Philip Sumner devised to George Leigh, John Leigh, James Leigh, and Joseph Leigh, a piece of land in Wharton, called the "Up Loont," with liberty to the lessees to sink, search for, and get brine from, under, and out of the demised premises for the use of certain wychhouses or saltworks intended to be erected thereon by the lessees, and also to get rock salt to be refined or manufactured at the said wychhouses or saltworks, and, for the purpose aforesaid, to sink and make brine pits, reservoirs, and other conveniences upon the demised premises, and to dig for clay and sand, to make bricks, and build wychhouses or saltworks thereon, together with storehouses, pans, windmills, engines, and other erections and buildings for the purpose of making and storing white salt and rock salt; to hold the same for sixty years from the 10th October, 1798; and the lessees thereby covenanted with the lessors, that they would erect all such wychhouses or saltworks as they should erect, and build in or upon the said demised premises, or any part thereof, as also all the storehouses, reservoirs, windmills, engines, and other buildings and erections whatsoever necessary and appurtenant thereto, in a good substantial workmanlike manner, with brick or stone, and should and would cover the same with slate or tiles, and should and would from time to time, and at all times during the said term, at his and their proper costs and charges, well and sufficiently repair, amend, maintain, and keep all and singular the said wychhouses or saltworks, together with the storehouses, reservoirs, windmills, engines, and other buildings, to be erected and built upon the said demised premises, in good substantial tenantable working order, repair, and condition; and at the end or other sooner determination of the said term, should During the term created by the lease of 1798, the lessees thereunder made, erected, and set up, in and upon the land thereby demised, wychhouses and saltworks, together with storehouses, reservoirs, engines, and other buildings, with fixed materials used in or about such wychhouses or saltworks, as well as saltpans and other movable articles made use of at the said wychhouses or saltworks; but no brine pits were at any time sunk or made under that lease. In the year 1849 negotiations took place between the defendants and the parties respectively entitled to the interests of the lessors and lessees in the lease of the 6th October, 1798, for a surrender of the said lease of 1798, and the granting to the defendants of a new lease, which, on the 2nd January, 1850, were carried out by the surrender and new lease hereinafter mentioned. By indenture of surrender, bearing date the 2nd January, 1850, between the Rev. John Leigh of the first part, and Sir Oswald Moseley of the second part (the said parties thereto of the first and second parts being the parties then entitled to the interests of the lessees in the said lease of 1798); other parties (also interested in the said lease) of the third, fourth, and fifth parts; the defendants of the sixth part; and the plaintiffs, and John Sumner (since deceased), Philip Sumner (since deceased), and John Jackson (since deceased), being the parties then entitled to the interest of the lessors in the said lease, of the seventh part; after reciting, amongst other things, the said lease of the 6th October, 1798, and that the parties thereto of the first and second parts had, with the consent of the parties thereto of the seventh part, lately agreed with the defendants to assign to them the saltworks and premises demised by the said recited indenture of lease for the unexpired residue of the said term therein granted, in consideration of the defendants taking upon themselves the fulfilment and performance of all and singular the covenants in the said lease, so far as the said covenants and agreements were capable of being performed and taking effect, which the defendants had agreed to do, and had since applied to the said parties thereto of the seventh part to accept and take surrender of the sail premises for the unexpired residue of the said term, and to grant to them a new lease of part of the said premises, together with other land specified in the plan at the back thereof, and coloured red, for the full term of thirty years, to be computed from the 2nd January, 1850; which the said parties thereto of the seventh part had agreed to do; the parties of the first and second parts, at the request of the defendants, and the said parties of the third, fourth, fifth, and sixth parts, did thereby assign and surrender unto the said parties of the seventh part, their heirs and assigns, all that field, close, or parcel of land, and 17 all and singular other the hereditaments and premises described and comprised in the said indenture of lease of the 6th October, 1798, together with all and singular the buildings, cisterns, reservoirs, canals, and improvements standing and made thereon, or in any part thereof, together also with all ways, paths, passages, and rights of passage, lights, liberties, easements, privileges, profits, commodities, advantages, and appurtenances whatsoever to the said hereditaments and premises belonging or in anywise appertaining; and all the estate, right, title, interest, trust, property, possession, term or terms of years, claim, and demand whatsoever, both at law and in equity, of them, the said John Leigh and Sir Oswald Moseley, parties of the first and second parts, and the said several other parties of the the third, fourth, and fifth parts respectively. The case then stated, that the plaintiffs, and J. Sumner, and Philip Sumner, and John Jackson, had demised to the defendants the "Up Loont," and the "Big Meadow," for thirty years, with liberty to sink pits for brine, and make pits, engines, &c. And the defendants thereby covenanted with the plaintiff, amongst other things, that the defendants would, during the said term, sink and form a brine pit and shaft, in the best and most approved manner, and with the best materials, to the satisfaction of the lessors or their surveyor; and further, that the defendants should and would, from time to time, and at all times during the said term, at their own proper costs and charges, in all things well and sufficiently repair, amend, maintain, and keep all and singular the wychhouses, panhouses, or saltworks, together with the storehouses, reservoirs, counting-house, cottages, and other buildings there erected and built, and thereafter to be erected and built, upon the said demised premises; and also the said pit and shaft, to be sunk, made, and found as aforesaid; and all and singular other the hereditaments and premises thereby demised, in good, substantial, and tenantable working order, repair, and condition; and at the end, or other sooner determinatson of the said term, should and would yield up the quiet and peaceable possession of all and singular the said hereditaments and premises, with all erections, buildings, and improvements made thereon, together also with the present brine cisterns, and all doors, shutters, hurdles, roofs, and roof supporters, coal deposits, salt stages, weighing machines, coal quays, and all flues in the refined salt stoves, and also all other fixtures and appurtenances, of what nature or kind soever, which should be used in or about the said counting-house, cottages, and other buildings, wychhouses, or salt works, or in anywise relating thereto, unto the said parties thereto of the first part, or their assigns, in thorough and good working order, repair, and condition in all respects; but as to the salt pans and other articles made use of at all or any of the said wychhouses, panhouses, or saltworks, and belonging to the defendants and their assigns, they should be at liberty to take and carry away from off the said premises, upon making good all such injury and damage as the said wychhouse or saltworks and premises might sustain in consequence of such removal; but nevertheless it was agreed and declared, that the lessors should, at the end of the said term, have the option of purchasing all or any part of the said saltpans, and other movable articles which should be used in or about the said salt works and premises, or any of them; and further, that they, the defendants, should at all times during the continuance of that demise, use their best endeavours to preserve and keep all and every the brine pit and pits, reservoir and reservoirs, which should be sunk, made, or be upon the said premises during that demise; also the brine to be found therein, or in, or upon, or under any part or parts of the said demised premises, from sustaining any injury or damage by fresh water, leakage, or otherwise however. And also that they, the defendants, should not, nor would, sublet, assign, or dispose of the said demised premises, or any part thereof, without the license and consent of the parties thereto of the first part. There was a clause of re-entry for a breach of this covenant. Under the agreement with Mr. Leigh's representatives, recited in the deed of surrender, dated the 2nd June, 1850, the defendants took possession of the saltpans and other property which had belonged to such representatives, and they had done considerable repairs to the premises. After the granting of the new lease of 1850, the defendants sunk a brine pit, and erected an apparatus for working the same. In the summer of 1861 the plaintiffs entered into a contract of sale with Messrs. Vardin, of all interest in the land, and on the 13th December, 1861, the defendants underlet the land to J. Foster, but afterwards renewed possession. The plaintiffs nevertheless wrote to the defendants on the 23rd June, 1862, a letter, demanding possession of the premises, in consequence of their right of re-entry upon the defendants underletting without consent; and an action of ejectment was commenced on the 7th July, 1862. On the 18th January, 1863, the defendants had a public auction of the saltpans, and other articles and things on the premises, and afterwards between that day and the 17th March, 1863, they were removed from the premises. On the 17th March the defendants confessed judgment in the action of ejectment, and judgment was signed on the 25th. The case then described at length the buildings, works, and fixtures which had been upon the premises. Saltpans, wychhouses, panhouses, &c. were erected during the continuance of each of the above-mentioned leases, and for the purposes of this case it was to be taken, that between the 18th January and the 17th March, 1863, the defendants removed the saltpans, hatchframes, bearers, loose firebars, irondoors, and steam panhouses, but none of the brickwork. The material questions for the opinion of the Court were first, were the defendants entitled to remove any, and which of the articles and things described? secondly, up to what time did the rights of the defendants to remove such of the said articles and things, if any, as they were entitled to remove, continue? Kemplay, for the plaintiffs.-First, the various fixtures and articles were not removable by the tenants under any circumstances. By the lease of 1798, the lessees covenanted to leave at the disposal of the lessors, all the fixed materials of what kind soever used in or relating to the intended wychhouses or saltworks, save and except all the saltpans and other movable articles used therein. Then follows the lease of 1850, which contains a similar reservation in favour of the tenant, but with the omission of the word "movable," and the effect is, that the tenant must be taken to have renounced his right of removal. (Dumergue v. Rumsey, 2 H. & C. 777; S. C., 10 Jur., N. S., 155). Moreover, the saltpans, although merely laid upon the ground, from their size can only be removed by taking down a portion of the building, and are, therefore, on this ground also irremovable, as appears from the notes to Elwes v. Maw (2 Smith's L. C. 163, 5th ed.), where it is said, "To whatever extent the right to remove trade fixtures may be carried, common sense and justice seem to require that it should be bounded by the rule laid down by Lord Hardwicke in Lawton v. Lawton (3 Atk. 13), viz. that the principal thing shall not be destroyed by the accessory." [He also cited Whitehead v. Bennett (27 L. J., Ch., 474).] [Blackburn, J., referred to Liford's case (11 Rep. 50), where it is said, "It was resolved in Wistow's case (Year Book, Hen. 8, 25 b), that if a man has a horse mill, and the miller takes the millstone out of the mill, to the intent to pick it to grind the better, although it is actually severed from the mill, yet it remains parcel of the mill, as if it had always been lying upon the other stone, and by consequence, by lease or conveyance of the mill, shall pass with it." Cockburn, C. J., referred to Rex v. Otley (1 B. & Ad. 161).] In Walmsley v. Milne (29 L. J., C. P., 97; S. C., 6 Jur., N. S., 125), the mortgagor in possession of premises subsequently to the mortgage erected certain trade fixtures, which were firmly affixed to the realty, but in such a manner as to be easily and without damage severed therefrom; and it was held, that the fixtures enured to the benefit of the mortgagee as against the assignees of the mortgagor, who had become bankrupt. Secondly, the defendants had no right to remove the fixtures after the issuing of the writ. The defendants, by the act of underletting, had put an end to their right and interest in the premises; and the law upon the subject is thus laid down in the notes to Elwes v. Mawe (2 Smith's L. C. 168)" It has already been observed, that in the very first case which established the tenant's right to remove fixtures under any circumstances, a limitation to the time during which that right extended was pointed out. The rule is, in the Year Book, 20 Hen. 7, laid down in the following words:-' During his term he may remove them, but if he suffer them to remain fixed after the term, they belong to the lessor.' In Wheaton v. Woodcock (7 M. & W. 14) it was also held, that the right of a tenant to remove tenant's fixtures continues only during his original term, and during such further period of possession by him, as he holds the premises under a right still to consider himself as tenant." To the same effect is Leader v. Homewood (5 C. B., N. S., 546), where, also, the Court considered it unnecessary to decide whether a tenant, holding over at sufferance, would be entitled to remove fixtures. At all events, the arbitrator must determine what in the present case is a reasonable time for their removal; the facts being, that the landlords elected to put an end to the tenancy in June, 1862, and the removal did not take place until March, 1863. [Cockburn, C. J., referred to Stansfeld v. The Mayor of Portsmouth (4 C. B., N. S., 120).] [He also referred to Co. Litt., sect. 68, where a distinction is taken between the case of tenant for years "which knoweth the end of his terme," and tenant at will, with respect to the right to emblements; and to sect. 69, where it is said, tenants at will shall, in case of eviction, have "free entrie, egresse, and regresse, by reasonable time to take away his goods and vtensils."] Thirdly, parol evidence of the meaning of the words "saltpans, or other articles used on the premises," was inadmissible. [Blackburn, J.-We do not as yet know what was the evidence actually tendered to the arbitrator. Cockburn, C. J.-It will be time to consider this question when it arises.] Mellish, Q. C. (Holland with him), for the defendants.—It is material, for the purposes of this case, to consider the first lease, in order to cast light upon the second, upon which the question arises. The first lease is not a demise of existing saltworks, but of land for a long term of years, upon which the lessees covenant to erect buildings, keep them in repair, and at the expiration of the term to deliver up the hereditaments, with the appurtenances, in good repair, and to leave the fixed materials, save and except all the saltpans and other movable articles," made use of at the said saltworks. Whatever under the first lease was to belong to the lessor, would under the second pass to the lessee as part of the thing demised; but fixtures which under the first lease the lessee would have been entitled to remove, if purchased at the end of the term by a new incoming lessee, would surely be remov able by him also. The object of the clause was to distinguish between movable and immovable fixtures. For instance, if the lessee bring upon the land ma terials which are so dealt with as to become part of the freehold, the result is irremovability; otherwise, of saltpans and things which can be moved without injury to the freehold to which they are annexed, and which are to all intents and purposes tenant's or trade fixtures. Then as to the second lease, under which the tenant's rights are the same as under the first, it was decided in Lawton v. Salmon (reported in note to Fitzherbert v. Shaw, 1 H. Bl. 260), that saltpans go to the heir and not to the executor. In Foley v. Addenbrooke (13 M & W. 239), the defendant's right was established to remove whatever was in the nature of a machine, but not such things as were in the nature of a building of support of a building; and that in exercising his rights the tenant might, so far as it was necessary, distar the brickwork. But the case of Elliott v. Bishop (11 Exch. 113), is conclusive upon the question. There there was a covenant to deliver up the demised pre mises, together with all locks, &c., "and other fixtures and articles in the nature of fixtures which shall at any time during the said term be fixed or fastened to the said demised premises, or be thereto belonging," The tenant had erected certain fixtures necessary to his trade as a licensed victualler, and which came under the category of tenant's and trade fixtures; and the Court of Exchequer Chamber held that the tenant. notwithstanding the covenant, was entitled to remove them. [He also cited The Duke of Beaufort v. Bates (31 L. J., Ch., 481).] As to the second question, he cited Marshall v. Lloyd (2 M. & W. 97); Heap v. Barton (12 C. B., N. S., 274); and Penton v. Robart (2 East 88), where it was held that a tenant may remove trad fixtures so long as he remains in possession, althoug! his term have expired, and judgment has been signe in an action of ejectment. Kemplay, in reply. [THE COURT intimated that the time to be allowe to the tenant for the removal of the fixtures shoul be calculated from the time of the defendants receivin notice of the plaintiff's intention to re-enter, and th the arbitrator should take all the circumstances int consideration in determining what was a reasonab time.] COCKBURN, C. J.-I am of opinion that in dealin with the question which arises upon this lease-vi whether there is anything to restrain the defendan from removing trade fixtures, we ought to adopt th construction contended for by the defendants. the first lease they covenanted at a certain time to d liver up to the landlords peaceable possession of t hereditaments, with their appurtenances, and to leav at their disposal all the fixed materials, the salta and other movable materials excepted; and under second lease they were to be at liberty to remove th saltpans and other articles made use of in the saltwork Now, the case of Elliott v. Bishop expressly decid that by such a covenant a tenant is only bound leave upon the premises such fixtures as belong to th landlord; and the use of the word "movable articles which occur in the first lease, and as to which ther an express exception, confirms me in thinking that t is the proper construction. By the words "mova articles" I think must be intended articles which mig be removed by the tenant notwithstanding that the had been affixed to the buildings, because there woul have been no occasion to reserve a right to take awa mere chattels; and even without the authority ( June 17, 1863 , Elliott v. Bishop, which is directly in point, I should have been of this opinion. The arbitrator, then, must determine as to those of the articles removed which come under the denomination of trade fixtures, for such the defendants are at liberty to remove. As to the other point, we sufficiently intimated our opinion during the argument. BLACKBURN, J.-I am now satisfied that the effect of the covenant is to prevent the removal by the defendants as tenants, of such of the fixtures as come under the denomination of landlord's fixtures, leaving untouched the right to remove such fixtures as come under the denomination of tenant's fixtures, and which, under ordinary circumstances, they would be entitled to remove. I confess I was at first of the contrary opinion, but at that time I had not the case of Elliott v. Bishop before me. I now entertain no doubt but that the defendants are entitled to take away all such fixtures as the arbitrator shall determine to be properly trade fixtures. MELLOR, J., concurred.-Case to go back to the arbitrator, with an intimation of the opinion of the Court. COURT OF COMMON PLEAS. EASTER TERM. [Before ERLE, C. J., BYLES and SMITH, JJ.] HUNT and Another v. HARRIS.-April 25. Metropolitan Building Act, 1855 (18 & 19 Vict. c. 122) -Owner-Lessee for years-Sub-lessee. The defendant was the lessee of a house for the term of ninety-nine years, and had demised some portions of the house to separate persons for terms varying from seven to twenty-one years:-Held, that the defendant was the owner of the house, within the meaning of the MetropoTitan Building Act, 18 & 19 Vict. c. 122. Declaration, for that whereas the plaintiff and the defendant were severally owners of a certain party wall and structure, within the meaning of the Metropolitan Building Act, 1855, and situate within the city of London, the said party wall or structure being a party wall, and situate on the west side of the premises of the defendant, being No. 37, Eastcheap, and on the east side of the premises of the plaintiff, being No. 38, Eastcheap, in the city of London; which said party wall or structure then was in a dangerous state, and defective and out of repair, and the commissioners of sewers of the city of London then caused a survey of the said party wall and structure to be made by a competent surveyor, who duly surveyed the same; and, upon the completion of his survey, certified to the said commissioners his opinion as to the state of such party wall and structure, to the effect that the same was in a dangerous state; and afterwards the said commissioners gave and served, and caused to be given and served, upon the plaintiffs and the defendant, then being such owners as aforesaid, a notice in writing in the words and figures following; that is to say-[Here followed the notice.] And the plaintiffs, after receiving such notice, and within a reasonable time in that behalf, and while the plaintiffs and the defendant continued such owners as aforesaid, did, and caused to be done, the works in the said notice specified, the same being necessary works to be done in respect of the then dangerous state of the said party wall and structure, and to the same being defective and out of repair; and whereas in the doing of the said works the plaintiffs were necessarily obliged to repair, restore, and make good the internal works and finishings of and upon No. 37 of Eastcheap aforesaid, then being such premises of the defendant as aforesaid, which said internal works and finishings were necessarily damaged and destroyed by the doing of the first-mentioned works; and whereas the plaintiffs and the defendant always made equal use of the said party wall and structure, and whereas the defendant alone made use of the said internal works and finishings; and whereas the plaintiffs were building owners and the defendant adjoining owner, within the meaning of the said act, the plaintiffs, as such building owners as aforesaid, within one month after the completion of the said works, delivered to the defendant, as such adjoining owner as aforesaid, an account in writing duly made out, of the expense of the said several works duly valued, and the defendant did not within one month after the delivery of such account, declare his dissatisfaction to the party delivering the same by notice in writing, given by the defendant or his agent, and specifying his objections thereto; and whereas all things have been done, and all times have elapsed, and all conditions have been fulfilled, necessary to entitle the plaintiffs to have and recover from the defendant, under the provisions of the said Metropolitan Building Act, 1855, one moiety of the expense of doing the first above-mentioned works, the said moiety being 521. 15s. 8d., and the whole of the expense of repairing, restoring, and making good the said internal works and finishings, the same being 33. 148. 1d., and to maintain this action for the recovery thereof; yet the defendant hath not paid either of the said sums, although duly demanded. There were also counts for money payable by the defendant to the plaintiffs for work done and materials provided by the plaintiffs for the defendant at his request, and for money paid by the plaintiff's for the defendant at his request, and for money found to be due from the defendant to the plaintiff's on accounts stated between them. The defendant pleaded several pleas traversing all the material facts alleged in the declaration. Issue was joined on all the pleas. At the trial, before Erle, C. J., it appeared that the plaintiffs Messrs. Hunt & Crombie were merchants, carrying on business at Nos. 38 and 39, Eastcheap, City; that the defendant was the lessee of No. 37, Eastcheap, for a term of ninety-nine years; that the defendant had sublet some portion of his house, No. 37, to a person of the name of Berridge, for a term of seven years, and had also granted a lease of another portion of the house to one Collins for a term of twenty-one years; and another portion to another person; the remaining portion being in the defendant's occupation. It was further proved, that the plaintiffs, finding their premises, Nos. 38 and 39, too small for their business, proceeded to enlarge their premises; and in doing so it was found that the party wall between the plaintiffs' and the defendant's houses was in a dangerous state; and the plaintiffs gave the proper and usual notices required by the Metrpolitan Building Act, and served the same on the defendant, specifying the nature of the work to be done. The defendant refused to comply with the notice, and the district surveyor then wrote to the defendant, calling his attention to the dangerous state of the wall, and the surveyor afterwards served both on the plaintiffs and on the defendant a notice, under sects. 69 and 81 of the 18 & 19 Vict. c. 122, requiring them to rebuild and repair the wall; and in compliance with this notice the plaintiffs proceeded to rebuild the wall, and in so doing incurred expense to the extent of 1851. 15s. 8d., to recover the half of which the action was brought. The jury, under the direction of the judge, found a verdict for the plaintiffs for the sum of 861. Leave was reserved to the defendant to move. |