FRANKLIN INSTITUTE LIBRARY PHILADELPHIA Class Access\on.^.S/.\5..2- Given h'y Q..£r.e..e.. 2£2.a.£Z ?LaiM£{ Eelatnifl to COMPRISING THE METROPOLITAN BUILDINGS ACT: FIXTURES ; INSURANCE AGAINST FIRE; / ACTIONS ON BUILDERS’ BILLS; DILAPIDATIONS; AND fflopious CSlossai'u of ^tcjnt'tal ®crms PECULIAR TO RUILDING. ILLUSTRATED WITH NUMEROUS ENGRAVINGS. BV THOMAS CHAMBERS, OF THE MIDDLE TEMPLE, BARRISTER- AT-LAW ; AND GEORGE TATTERSALL, SURVEYOR. LONDON : LUMLEY, 56, CHANCERY LANE. MDCCCXLV. LONDON ; VyiLUAM STEVENS, PRINTER, BELL TARO, TEMPLE BAR. PREFACE. The subject matter of this work having occupied more space than was originally contemplated, it has been found necessary to make some slight deviation from the original plan. It is now submitted to the public, in the hope that it may be found of service, as a correct and concise manual of the Laws relating to Buildings. Its effect is directly practical, and the selection and arrangement of the materials have been go- verned accordingly ; everything not of immediate utility having been rigidly excluded, with a view to bring prominently forward the most intelligible and popular explanation of the law ; avoiding, as far as practicable, all expressions which are technical, or abstruse, and therefore difficult of comprehen- sion to the unprofessional reader. a 2 GENERAL ANALYSIS OF CONTENTS. TABLE OF CASES. PAGE List of Cases cited under the Metropolitan Buildings Act ....... xix Fixtures xix Dilapidations ..... xxii Insurance. ...... xxv Actions on Builders’ Bills. . . xxvii THE METROPOLITAN BUILDINGS ACT. Chapter I. — Abstract of the Act ..... v Chapter II. — The statute at large, with notes and cases . 1 Chapter III. — Schedule A. — Acts and parts of acts repealed by the act . . .104 ,, B. — List of buildings exemptedfrom the general operation of the act ..... 105 „ C. — Rulesfordeterminingtheclasses and rates of building . 107 ,, D. — Rules relating to the construc- tion of walls . . .121 ,, E. — Rules relating to projections . 131 ,, F. — Rules relating to the construc- tion of chimneys . .133 ,, G. — Rules relating to the construc- tion of roofs . . . 137 , , H . — Rules relating to the construc- tion of drains and cesspools 138 I. — Rules relating to streets and alleys . . . 139 VI ANALYSIS OF CONTENTS. PAGE ChapterIII. — S chedule K. — Rules relating to dwelling- houses .... 140 “ L. — List of fees payable to district surveyors . . .142 “ M. — Forms of notices required by the act . . . . 144 “ N. — Analysis of the rules of prac- tice — legal and architectural — laid down by the act . 155 PART I. NEW BUILDINGS. — ALTERATIONS, OR ADDITIONS. Chapter I. — Erections of new buildings, and execution of alterations in, or additions to existing buildings, sub- ject to the control of this act, and to the supervision of the district surveyor 157 Chapter II. — As to the same proceedings where the build- ings are also subject to the special supervision of the official referees . . . . . . .157 Chapter III. — As to the same proceedings where the buildings, being included in Schedule (B.), are placed under the special supervision of the official referees alone . . . . . . . . .158 PART II. PARTY-WALLS. PARTY-FENCE-WALLS, AND PARTY-ARCHES IN INTERMIXED PROPERTY. Chapter I. — Erection of original division walls, party- walls, party-arches, or party-fence-walls on the line of boundary (or junction) of vacant ground . . 158 Chapter II. — Rebuilding of ruinous, insufficient, or de- fective party-walls . . . . . . .159 Chapter III. — Rebuilding of party-walls for buildings of a higher class or rate thau those adjoining . .160 Chapter IV. — Raising of party-walls . . . .161 Chapter V. — Repairing, rebuilding, or raising of party- fence-walls 161 Chapter VI. — Palling down rooms in existing buildings on intermixed property ; and erection of party-walls on the line of junction 161 THE METROPOLITAN BUILDINGS ACT. Vll PAGE Chapter VII. — Pulling down of existing timber partitions, and substitution of party- walls . . . . .161 Chapter VIII. — Excavation by a building-owner against an existing party or external wall, for the purposes of a lower story, or of a deeper foundation . . .162 Chapter IX. — As to openings in party or external walls, abutting on, or overlooking the ground or buildings of an adjoining owner . . . . . . .162 PART III. RUINOUS OR DANGEROUS BUILDINGS. Chapter I. — Ruinous buildings ..... 163 Chapter II. — Ruinous chimneys ..... 163 %* For removal of noxious or dangerous trades, see Part IV. Chaps. VIII., IX., & XI. PART IV. LEGAL SERVICES AND REMEDIES. Chapter I. — Service of notices . . . . .164 Chapter II. — Entry on premises for the purpose of in- spection . . . . . . . . .165 Chapter III. — Entry on premises for the purpose of build- ing party-walls, &c., or for executing any works under the provisions of this act . . . . . .165 Chapter IV. — Summons for building contrary to the act, or for refusal to amend on notice .... 166 Chapter V. — Recovery of expenses and costs in certain cases . . . . . . . . .166 Chapter VI. — Recovery of costs by occupiers and part- owners . . . . . . . . .167 Chapter VII. — Indictment of dwellings unfit for habitation 167 Chapter VIII. Dangerous trades . . 168 Chapter IX. Noxious, offensive, and un- healthy trades . . . . . . . .168 '^Chapter X. — Appeals ....... 168 Chapter XI. — Purchase of noxious or offensive trades . 169 Chapter XII. — Informalities in distress, and actions there- upon ......... 169 Chapter XIII. — Recovery of fees by district surveyors . 170 VllI analysis of contents. PAGE Chapter XIV. — Recovery of awards, and enforcement of their obligations . . . . . • .170 Chapter XV. — Prosecution for offences under this act ; limitation of penal actions ; and regulations of actions against persons acting under this act . . . .170 Chapter XVI. — Removal of orders, writs, actions, &c., by certiorari . . . . . . . .171 Chapter XVII.— Exemptions from stamp-duty . . 171 FIXTURES. Chapter I. — Fixtures in general — Their origin — AND DEFINITION OF THE TRUE MEANING OF THE TERM . . . . . . . . .177 Origin of Fixtures — Ancient rule of law — Early invasion of it — Its present unsettled state — Its dis- tinctions between different classes of persons — Effect of the ancient maxim — Origin of the exceptions — Ge- neral rule as to fixtures only applies where there is no special agreement — Other considerations which affect the right to remove fixtures — Definition of the word fixture as employed throughout the present treatise. Chapter II. — Of the right to remove Fixtures as MODIFIED BY THEIR NATURE AND PURPOSES . . 184 What constitutes a fixture — not merely resting upon the freehold, nor upon brickwork affixed to the soil, nor even such parts of a machine fixed to the free- hold as are but slightly attached, and may easily be separated without injury — Application of the details of the building trade to the definition of fixtures — First purpose of the screw — Adaptation of its use — Application of the distinction between nails and screws to the definition of fixtures — Constructive annexation — Heir-looms — Trade fixtures — Agricultural — Do- mestic — Mixed. Sect. I. — Trade Fixtures ...... 190 Poole’s case — Principle on which trade fixtures are removable — Machinery — Furnaces, vats, coppers, and utensils of trade — Shop and warehouse fittings, &c. — Buildings, &c. — Lime-kilns. Sect. II. — Agricultural Fixtures . . . . .194 Distinction between Agricultural and other tenants — Elwes V. Maw — Fitzherbert v. Shaw. FlXTUEtES. IX PAGE Sect. III. — Domestic Fixtures ..... 196 Principle on which these fixtures are removable — Fixtures for convenience held removable — Furnaces, and hangings — Tapestry, and iron chimney backs — Wainscot fixed with screws, marble chimney-pieces, stoves, grates, and cupboards — Pump. not removable — Pineries, conservatories, and green-houses — Ve- randahs — Ornamental fixtures — Cornices — Gilt, and other moulding — Picture-rods — Wainscot — Shrubs — Circumstances to be considered in determining the right of removal — When an article would be remova- ble — When otherwise. Sect. IV. — Fixtures put up for mixed purposes . . 202 Fixtures put up for trade combined with other ob- jects — Instances where held removable — Steam-en- gines — Cider-mills — Salt-pans — Fixtures put up by nursery-men and gardeners — Trees, &c., removable — Strawberry-beds — Green-houses — Conservatories, &c. — Such fixtures generally removable. Chapter III. — On the right to remove Fixtures, as MODIFIED BY THE LEGAL CHARACTER OR RELATIVE POSITION OF THE CLAIMANTS ..... 205 Distinctions made by the law, according to the legal character of claimants — Classes of claimants. Sect. I. — ..4^ between Heir and Executor . . . 205 Relative positions of heir and executor — The law favours the heir with regard to fixtures attached to his inheritance — Ancient rule of law as between heir and executor — Relaxation of the rule with respect to trade fixtures, as laid down by Lord Ellenborough — Lord Hardwicke’s opinion — Lord Mansfield’s opinion — Opinion of Lord C. B. Comyns — Ornamental fixtures — Hangings and looking-glasses — Pictures — Rule laid down by Blackstone. Sect. II. — As between the personal Representative of a Tenant -for -Life or in Tail, and the Remainder-man or Reversioner ........ 208 Relaxation of the rule of law in favour of the per- sonal representative — The general rule of practice being very similar to that in the last section, may, “ mutatis mutandis,*^ be safely adopted in this. Sect. III. — As between Landlord and Tenant . . 209 Relaxation of the rule of law as between landlord and tenant — All tenancies give an equal right of removal X analysis of contents. PAGE of fixtures — Cases in which disputes chiefly arise — All fixtures removable by other parties may be assumed to be removable by a tenant as against his landlord. Sect. IV. — As between Ecclesiastical Persons, and Corpo- rations sole, and their Successors . . • .211 General rule as to ecclesiastical persons, &c. — Hangings — Grates — Iron backs to chimneys — Orna- ments of a bishop’s chapel not removable. Chapter IV. — On the right to remove Fixtures, as AFFECTED BY PRIVATE STIPULATION, OR PARTICULAR CUSTOM 213 General rules of law controlled by particular agree- ment. Sect. I. — Effect of a Covenant to Repair . . .214 Covenant to repair — Trade fixtures — Domestic fix- . tures. Sect. II. — Effect of a new Agreement . . . .215 Sect. III. — Effect of a subsequent Demise . . .216 Sect. IV. — Effect of a particular Custom . . .217 Chapter V. — On the right to remove Fixtures as modified by a change in the legal character AND LIABILITIES OF THE OWNER .... 220 Sect. I. — In case of Distress ..... 220 Fixtures exempted from distress at common law — Constructive fixtures cannot be distrained — Tenant’s fixtures, if necessary to a house, &c., cannot be dis- trained — Machinery — The privilege of fixtures from distraint absolute. Sect. II. — In case of Execution . . . . .221 Fixtures not exempted from execution as from dis- tress — The tenant’s fixtures alone liable — Fixtures demised by lease not liable to execution — Fixtures set up by the owner of the freehold not liable, except such as would go to the executor and not to the heir — If a tenant on lease be entitled to the fixtures they are liable — Fixtures, if subject to powers under con- tract, not liable. Sect. III. — In case of Bankruptcy .... 223 Fixtures on the premises, but not belonging to the bankrupt, not liable — Where the tenant has pur- FIXTURES. XI PAGE chased the fixtures — Title of landlord or mortgagee preferable to that of assignee — Fixtures under an equitable mortgage do not pass to the assignee — Custom of country to be taken into consideration — Special covenant in a lease, reserves the fixtures in case of bankruptcy. Chapter VI. — Of the time at which Fixtures should BE REMOVED ' . . 228 Sect. I. — In the Case of Termors ^ or Tenancies of a definite Duration . . . . . . .228 Case of a termor generally — When the term expires by lapse of time — Where possession is relinquished — Where possession is retained — Penton v. Robart — Right to fixtures during continuance of possession sanctioned by custom — Case in support of this view — Whether legal presumption in favour of reversioner is capable of being rebutted. Sect. II. — In the case of Tenants whose Interests are of uncertain Duration . . . . . . .232 A reasonable time allowed for removal Sect. III. — In case of Forfeiture of Lease . . . 233 An incumbent resigning his living not entitled to any time beyond his term of possession. Chapter VII. — Transfer of Fixtures . . . 235 Sect. I. — Of the Transfer affixtures by Sale and Assign- ment ...... . . 235 Transfer of soil transfers buildings thereon. The same principle operates on fixtures — Effect of a new agreement, ^making no mention of fixtures — Con- veyance — Peculiar circumstances only can exclude fixtures from passing under general conveyance of the freehold — Demise, with clause for valuation — Assign- ment — Effect of the Statute of Frauds — Special agree- ment with an outgoing tenant — Agreements for sale of fixtures with land, should be in writing. Sect. II. — By Demise ....... 239 Special demise of fixtures — In default of special demise — Landlord cannot remove fixtures during the term. Sect. III. — By Mortgage 240 Identity of mortgage and conveyance — Ryall v. Rolle — fixed utensils pass to the mortgagee — Equita- ble mortgage of land, &c., includes the fixtures. XII ANALYSIS OF CONTENTS. PACK Sect. IV. — By Bequest. ...... 244 A party having no devisable interest in property, may yet devise his fixtures therein — Fixtures pass with devise of land — Fixtures pass also with devise of house as between heir and executor — A special enu- meration of fixtures in bequest excepts those not spe- cified — The word “furniture" in a devise does not include fixtures — Bequest of fixed furniture — Bequest of fixed furniture, carries furniture affixed in any man- ner — Under bequest of household furniture, fixtures in a leasehold will pass — Under devise of furniture and utensils, &c. of a mansion-house, farming utensils will not pass — Considerations in determining the in- tentions of testator. Chapter VIII. — Rateability of Fixtures. . . 248 Fixtures rateable, if affixed to rateable property — Moveable chattels not rateable — Things annexed to the soil are rateable in addition to the soil — Fixtures to be rateable must be permanently affixed — Fixtures annexed by a pauper tenant, not rateable — Rateable value increased by fixtures, will confer a right of voting. Chapter IX. — Valuation of Fixtures. . . . 251 Appraisement of fixtures must be stamped — Ex- emption — Appraisement signed by brokers is evidence I — Agreement for sale of fixtures must be stamped — Fixtures liable to auction duty — Valuation between landlord and tenant on commencement of the term — At expiration of the term — Valuation between out- going and incoming tenants-^ Lease silent as to fix- tures includes their use. Chapter X. — Dilapidation of fixtures. . . . 253 Chapter XI. — Remedies by action and otherwise in RESPECT of fixtures 254 Sect. I. — By Injunction. ...... 255 Injunction to restrain — To whom and against whom granted — Account — Injunctions in the case of ecclesi- astical persons — Variation in forms of Injunction. Sect. II. — By Action. 256 Remedies by action — Special declaration — Action on account stated — Wrongful severance — Action of trespass by landlord — Action of trespass by tenant — Lessor cannot sue in trespass or trover during term of lease. DILAPIDATIONS. Xlll PAGE Chapter XII. — Criminal proceedings in respect of Fixtures. 260 . Sect. I. — For stealing Fixtures. ..... 260 Stealing of fixtures, a felony — Removal of fixtures — Rule on this subject — Removal of fixtures in some cases, larceny Sect. II. — For breaking or destroying Fixtures. . . 261 Malicious damagingof fixtures, a felony — Transpor- tation or imprisonment — Parties damaging machines employed in manufacture, liable to transportation — Also damaging steam or other engines employed in mines. Sect. III. — Of Deodands 263 Schedule, No. I. — Fixtures not removable by the TENANT, ALTHOUGH ANNEXED TO THE FREEHOLD OR RENEWED BY HIM. ....... 265 Schedule, No. II. — Fixtures Removable by the Tenant if annexed by him. ....... 267 Schedule, No. III. — Fixtures Removable by the Tenant, if annexed by him; but usually scheduled in the Lease. . 271 Schedule, No. IV. — Doubtful Fixtures, of which the cha- racter must be determined by the particular circum- stances of the Tenure. ...... 273 DILAPIDATIONS. Chapter I. — Dilapidations of Church Property . 279 Sect. I. — As to who are liable for Repairs. . . . 279 Liability of incumbents — On grounds of general policy — On other grounds — Curates — Expenses of dilapidations may in some cases be deducted from the curate’s stipend — Rectors and vicars — Prebends. Sect. II. — Nature and Extent of this Liability. . . 282 Nature and extent of repairs to be done — Judgment of J. Bayley. — General result of cases on record — As to rebuilding — Enlarging and modernizing — 1 7 Geo. III. c. 53, raising money for repairs, &c. — Dilapida- tions in time of predecessor, &c. — Justification of the foregoing rules — Waste — Felling of timber for repairs — Management of glebe lands. XIV ANALYSIS OF CONTENTS. PAGE Sect. III. — Remedies for Dilapidations of Ecclesiastical Property. ........ 289 Visitation at intervals, to enquire into dilapidations — Ecclesiastical censure — Prohibition — Suit — Action on the case — Money recovered. Chapter II. — Dilapidations of other Property. Sect. I. — Liability to Repair by mere force of Law . 292 Ancient doctrine of waste — Liability of tenants, proportioned to nature of tenancy — Tenants at will — Tenants from year to year — Wear and tear — Avoidable accident — Inevitable accident — Lord Kenyon’s opi- nion — Opinion of C. J. Gibbs, and of Lord Tenterden — Liability of yearly tenants in general — Liability of tenants holding over after term expired — Where lease is void. Sect. II. Of the Liability to Repair under Covenant . 297 Division of subject — Who are bound — Assignees — Where assignee not liable — Executors and admi- nistrators — What covenants run with the land — When the liability commences — Tenant holding over — When not liable — To what buildings covenant extends — New buildings — Even though erected for trade or conve- nience — Equitable construction of covenant — Boun- dary walls — Extent of obligation ; inevitable accident — Case of fire — Landlord’s liability in case of fire — General liability under covenant — Extent of repairs under covenant — Does not include improvements — Exception — Nor rebuilding — Covenant construed with reference to age and condition of building — Party wall — Inside painting — Other covenants. Sect. III. — Oj Breaches of the Covenant to Repair. . 309 What is waste — Material alterations — Pulling down and rebuilding — Breaking door-way — Exception — Pulling down wall — Leaving new building out of repair — Covenant to keep in repair — To leave in repair — To maintain, sustain, and repair — Reasonable time to be allowed for repairs after accident — Agreement to repair. Sect. IV. — Of the Landlord's Remedies for Dilapida- tions. ......... 312 Division of subject — Injunction — Only granted where serious injury is threatened — Not for trivial mischief — Where tenant insists on disputed right — Who may petition for an injunction — Account — DILAPIDATIONS. XV PAGE When granted — Entry to view waste — Remedy by action — On the contract — For the tort — Ejectment for the forfeiture — No remedy against tenant at will for permissive waste — Tenant from year to year — A ction on express agreement — On implied contract — Tenant on sufferance — Assignee and personal representative — Action of covenant — Debt for penalty — Action on the case — When it lies — Permissive waste — At what time it may be brought — Effect of 3 & 4 W. IV. c. 42, s. 2 — Damages how to be estimated — Who may claim — Damages beyond costs of repairs — Action of eject- ment — When to be brought — As to waiver of forfeiture — Equitable relief. Sect. V. — Of the Tenant's Remedies for Dilapidations . 325 Tenant's right to leave — Lessee charging lessor with cost of repairs. Chapter III. — Assessment and valuation of dilapi- dations. ......... 327 Variety of practice in valuation — Necessity of some standard — Report of the committee of the R. J. B. A. on dilapidations — Its errors — Suggestion to avoid litigation, as to extent of dilapidations — Schedules of dilapidations must vary with each legal position — Difference of Dilapidation and Repair — Landlord’s and tenant's dilapidations — Influence of local custom on valuations of dilapidation. Part I. — Assessment and Valuation of Dilapidations OF Church Property. ...... 330 Sect. I. — In case of an Archbishop, Bishop, Dean, Pre- bend, Rector, or Vicar. ...... 330 Liabilities of incumbents. Specification of Dilapidations to which an Incumbent, other than a Curate, is liable. . . . . .330 Bricklayer — Slater — Carpenter — J oiner — Plumber — Glazier — Mason — Pavior — Plasterer — Smith and Ironmonger — Paper-hanger — Painter — Generally. Sect. II. — In the Case of a Curate 333 Liabilities of a curate Part II. — Dilapidations of Lay Property . . 334 Sect. I. — In Case of a Tenant at Will. . . . 334 Sect. II. — In case of a Tenant from Year to Year . 334 XVI ANALYSIS OF CONTENTS. PAGE Specification of Dilapidations to which a Tenant from Year to Year is liable ...... 334 Bricklayer and Slater — Carpenter — Joiner — Plumber — Glazier — Mason — Pavior — Plasterer — Smith and Ironmonger — Painter and Paper-hanger — Generally. Sect. 111. — In Case of a Tenant for a Term of Years . 336 Extent of liability — Specification as in the case of tenant from year to year. ' Sect. IV . — In Case of a Tenant under Covenant to Re- pair .......... 337 Extent of liability — In case of fire — If premises should fall — Ruinous chimneys or walls. Specification of Dilapidations to which a Tenant under Covenant to Repair is liable *..... 338 Bricklayer — Slater — Carpenter — Joiner — Plumber — Glazier — jVIason — Pavior — Plasterer — Smith and Ironmonger — Paper-hanger — Painter — Generally. Sect. V . — In Case of a Tenant for Life . . .341 Tenure, of a tenant for life— His liabilities — Similar to those of an incumbent of church property — A simi- lar schedule may therefore be adopted — Dilapidations however must be substantial. Sect. VI . — Agricultural Dilapidations .... 341 Peculiarities of agricultural tenancy — Liabilities in other respects — Effect of local custom — Dilapida- tions of farming — Ornamental repairs — Preceding schedules may be adopted “ mutatis mutandis.” Sect. VII . — Dilapidations of Fixtures .... 342 Schedule of Fixtures, for Dilapidations of which a Tenant will be generally liable . . . . . .343 INSURANCE AGAINST FIRE. Chapter I. — Of the nature of the contract, and of THE parties to it 349 Nature of the contract — Insurance companies — Who may insure — Policy not assignable without con- sent — Stamp. Chapter II. — Of the property insured, and of its warranty and representation .... 352 What maybe insured — Warranty and representa- NSURAXCE AGAINST FIRE. XVll PAGE tion must be correct — Slight errors — Construction — Material facts — Rufe v. Turner — Friedlander v. Lon- don Insurance Company — Doe dem. Pitt v. Laming. Chapter III. — Of the risk insured .... 355 Conditions of policy to be observed; — Dobson v. Southby — Shaw v. Roberts — Whitehead v. Price — Mayall v. Mitford — To deprive insured of their remedy there must be fraud — Pim and Another v. Reid and others — To recover on policy there must be a loss by fire — Austin v. Drew — Exceptions and provisoes — Invasion, foreign enemy —Military or usurped power — Civil commotion. Chapter IV. — Of the premium ..... 360 Fifteen days allowed after premium due — But the as- sured are at their own risk till premium is paid — Notice by insurers that they will not renew the policy — Salvin and Ors. v. James and Ors. — Insurers not bound by their agent — Acey v. Fernie. Chapter V. — Of recovery under the policy . . 363 Production of policy — Secondaryevidence — Insurers may rebuild, or pay — Building Act 14 Geo. III. c. 78, Alchorne v. Saville — Case of alteration of the law re- lating to regulation of buildings — Effect of the recent building Act 7 & 8 Viet. c. 84 — Personal liability on policy — Andrews v. Ellison — Alchorne v. Saville — Notice of loss — Submission to arbitration — Remedy where loss is occasioned by riot. Chapter VI. — Of covenants to insure . . . 369 Usual covenant toinsure — What is a breach — Doed. Pitt II. Laming — Extent of Tenant’s liability — Excep- tion in leases of damage by fire — Whether covenant to insure runs with the land— On breach of covenant, lessor may enter — Equity will not relieve — Exception — In ejectment, proof of breach lies on plaintiff' — Landlord not compellable to rebuild in law or equity — nor restrained from suing for his rent. Chapter VII. — Arson 373 Arson an offence at common law, as well as by sta- tute — Buildings — Proof requisite to support Indict- ment — Malice — Stacks, crops, &c. — Penalty on negli- gent firing of property. Chapter VIII. — List of Fire-Insurance Companies IN England, Wales, Scotland and Ireland . . 377 XVlll ANALYSIS OF CONTENTS. ACTIONS ON BUILDERS’ BILLS . 381 Chief causes of disputes between employers and contractors where there is no special contract — Action must be on the contract where there is one — Unless the works are completed — Contract need not be in writing — Production of agreement, duly stamped, necessaryon trial — though the work was not done under it — Who may sue — Common Courts, quantum meruit — Work, labour, materials — Right to recover — Work contracted for must be completed — Exception — Work destroyed before finished — Breach of the contract waived by defendant — Subsequent implied promise — Certificate of third party — Condition precedent to right tosue — Butobjectiou must be properly taken atthe trial — Extras — Value, where there is no specific contract — Where a price had been agreed on — Defence — General issue — Where contract has not been strictly complied with — Plaintiff to prove the value of his work when it is disputed — Notice to plaintiff, that the value of work is to be disputed ; when necessary — Insufficiency of work may be shown under the general issue — Or that the work was done under a contract, not fulfilled — or done improperly — Set-off — Penalty for delay — may be deducted from amount due on contract — Or from cost of extras — Exception — Action of tort against contractor ; — when it lies — Evidence — 6 & 7. Viet, cap 85 — Evidence in reply. GLOSSARY OF TECHNICALTERMS PECULIAR TO BUILDING . . ... . 407 INDEX. General Index to the Metropolitan Buildings Act . 447 Fixtures ..... 464 Dilapidations .... 471 Insurance 476 Actions on Builders’ Bills . 479 TABLE OF CASES. METROPOLITAN BUILDINGS ACT. Barrett v. Bedford (Duke) PAGE 38 Beardmore v. Fox 37 Collins V. Wilson 38, 53 Gutteridge v. Munyard 39 Lamb v. Hemans 38 Matts V. Hawkins 43 Meymot v. Southgate 19 Moore v. Clark 39 Murly V. Me. Dermott 43 Peck V. Wood 37 Philp V. Donati 54 Pi 2 ey V. Rogers 56 Pratt V. Hillman 96 Reading v. Barnard . 54 Rex V. Hungerford Mark. Comp. 26 Middlesex Justices 66 Robinson v. Lewis 32, 56 Sangster v. Birkhead 38 Southall V. Ledbetter 37 Stuart V. Smith . 37,39 Taylor v. Reed . 38 Thackar v. Wilson 38 Titterton v. Conyers . 23 Trotter v. Simpson 97 Wells V. Ody 96 Wilcox V. Newman 38 Williams v. Pocklington 38 FIXTURES. Allen V. Allen Atkinson and Another v. Fell and Another Avery v. Cheslyn 246 251 182, 187, l‘J9 I XX TABLE OF CASES. PACK Axminster Parish Case 263 Barnard v. Leigh 223 Bartlett’s Case 262 Beaty v. Gibbons 232 Beck V. Rebow . . . . 208 Birch V. Dawson 246 Bishop of Carlisle’s Case . 212 Winchester Knight 255 Boydell v. M'Michael 224 Buckland ©. Butterfield 182, 198, 229 Bulwer v. Bulwer 212, 233, 234 Cave V. Cave 208 Chubb’s Case 262 Clark V. Crownshaw 223 Colegrave v. Dios Santos 197, 208, 237, 244 Coorabes v. Beaumont 224 Cowen’s Case 212 Cox V. Godsalve 245 Culling V. TufFnall 182 Danby v. Harris 221 Davis V. Jones 182, 229, 232, 258 Day r. Bisbitch 221 Dean v. Allerley 196 Duck V. Braddyl 185,221,240 Elwes V. Maw 184, 187, 203, 206 Empson v. Soden 200 England v. Downs . 237 Evans ». Roberts. 238 Exparte Belcher 225 Bentley 243 Lloyd 225 Price 244 Quincey 241, 258 Scarth 225, 226 Wilson 225 Fairburn v. Eastwood 216 Farrant v. Thompson 222, 241, 258 Fidler’s Case 262 Fitzgerald v. Field 247 Fitzherbert v. Shaw 196,215,236 Gordon v. Harper 222, 259 Gorton v. Falkner 221 Grymes v. Boweren . 193, 198 Hallen v. Runder 184, 238, 256 Hare v. Horton 236, 245 Harrison v. Parker 256 Harvey v. Harvey 197 Henlakenden’s Case 244 FIXTUllES. XXI PAGE Hitchmaa v. Walton . . 241, 258 Horn V. Baker . 184, 223, 240, 256 Hubbard v. Bagshaw 225, 226 Jackson v. Pesked . 257 Kimpton v. Eve . 255 LangstafF v. Meagoe . 241, 259 Lawton Lawton . 182,191, 197, 200, 202, 206 Salmon . 182, 184, 193, 202, 207 Leach v. Thomas 198 Lee V. Risdon 197, 229, 256 Lifford’s Case 188, 244 Lord Dudley v. Lord Ward *190, 191, 202, 206 Lyde v. Russell 229 Mackarel’s Case 263 Mackintosh v. Trotter 180, 258 Marston v. Roe 232 Marter v. Bradley , 214, 218 Mayfield v. Wadsley 238 Minshall v. Lloyd 227 Naylor v. Collinge 214 Neale v. Viney 257 Niblet V. Smith 221 Nutt ^7. Butler . 256 Palan v. Shepherd . . 246 Parker v, Staniland . 238 Penry v. Brown 199, 214 Penton v. Robart . 185, 191 , 193 ,203 , 229, 231 Pitt V. Shew 220, 256 Place V. Fagg 222, 243 Poole’s Case 190 , 222, 228 Rex V. Bilston . 249 Brighton Gas Company 249 Chelsea Water-Works Company 249 Hedges 185 Hogg . . . 248 Inhabitants of St. Dunstan’s 187, 197 Inhabitants of Londonthorpe 185, 197 Inhabitants of Ottley . 250 Munday . 261 Rochdale Water- Works Company 249 St. Nicholas, Gloucester 248 Ruffard v. Bishop . 226 Ryall V. Rolle 222, 241 Sainsbury v. Matthews , 238 Salmon v. Watson 251, 257 Sheen v. Rickie 188 Simpson v. Hartopp , 220, 221 Slaming v. Style 246 XXll TABLE OF CASES. PACK Smith V. Surman 238 Squier v. Mayer 197, 207 Steward v. Lombe 236 Storer v. Hunter 227, 240, 283 Stuart V. Earl of Bute 190 Sunderland v. Newton 191 Thresher v. East London Water Works Comp. 217, 23G, 252 Trappes r. Harter . . 182, 222, 226, 242 Twigg r. Potts . 259 Udal V. Udal / 259 Vaisey v. Reynolds 245 Wansborough v. Maton 233 Ward V. Macauley 259 Weeton v. Woodcock 231, 2.33 West and Another v. Moore 245 West V. Blakeway 215 West’s Case 263 Wetherell v. Howells 200 Wick V. Hodgson 251 Wigglesworth v. Dallison 218 Windham v. Way 200, 203 Winn V. Ingleby 197, 208, 222 Wood V. Gayuon 247 DILAPIDATIONS Ackland v. Atwell 290 Amworth v. Johnson 295 Bacheloure v. Gage . 297 Barker v. Barker 315 Barry v. Barry 314 Bayne v. Walker 304 Beal V. Sanders 296 Belcher v. Me. Intosh 305 Belfour (Admor.) v. Weston 304 Bennet v. Bonnaker 288 Betham v. Gregg 288 Bird V. Relph 288 Bishop of London v. Webb 288 Bishop of Winchester v. Knight 315 Wolgar 290 Boscawen v. Bliss 324 Bracebridge v. Buckley 325 Bromfield v. Williamson 318 Brown v. Blunden 301,. 302 DILAPIDATIONS. XXIll PAGE Brown v. Crump . 318 Buckley v. Pirk 299 Burchell v. Hornsby • 321 Burdett v. Withers 307, 323 Bullock V, Dommitt 303 Bulwer v. Bulwer 288 City of London v. Grseme 309 Nash , ' . 308 Clayton v. Kynaston 320 Coffin V. Coffin , 315 Cole V. Forth 309 Cole V. Green 309 Collins V. Barrow 326 Congham v. King 297, 319 Conolly V. Baxter . 311 Colley V. Streeton 315,322 Corporation of London v. Venables 310 Countess of Shrewsbury’s Case 293 Cowper V. Varney Jonedem 305 Curate of Orpington’s Case 280 Curtis V. Shirley 319 Dalton V. Jones (Doe d) 310 Derisley and Anor v. Custance 319 Digby V. Atkinson 300, 303 Doe d. Goatly o. Paine 324 Hemmiiigs v. Durnford 324 -■ — Knight V. Rowe 325 Morecroft v. Meux 324 Nash V. Birch 324 Sheppard v. Allen 325 Sore V. Akers 324 Douse V. Earle . 301 Drury v. Molins 314 Easterly v. Sampson 299 Eaton V. Lyon 325 Edwards v. Hetherington 326 Evelyn v. Raddish 302 Farrant v. Lovel 314 Ferguson v. Hornsby 294 Frankly v. Tuton 308 Fryett d. Harris v. Jeffereys 324 Gibson v. Smith 314 Glascot V. Green 298 Goatly V. Paine (Doe d.) . 300 Governors of Harrow v. Alderton 320 Graham v. Tate 326 Grave’s Case 309 Green v. Eales . • 303 XXIV TABLE OF CASES. Gutteridge v. Munyard PAGE 306 Halton V. Cove . 288 Hannam v. S. L. W. W. Company 325 Hare v. Groves . 304 Harris v. Jones 306 Hill V. Barclay 325 Holford V. Hatch 319 Holtzappfel v. Baker 304 Horsefall v. Mather . 295 Testar 299 Hunt 0 . Dowraan / 315 Jackson v. Cator 313 Jesus (Col.) V. Bloom 315 Johnson v. St. Peter's Hereford 298, 300, 318 Jones V. Hill 291 Knight V. Moseley . 288 Knowle v. Harvey 287 Lant V. Norris 297, 299, 302 Laythorp v. Marsh 315 Leach v. Thomas 295 Leeds v. Chatham 304 Line v. Harris 288 Loader v. Kemp 304 Lougher v. Williams 299 London (Mayor) v. Hedger 314 Lord Grey de Wilton v. Saxon 314 Lowther v. Stamper . 315 Luxmore v. Robson 300, 310 Main’s Case (Sir Anthony) 311 Mantz V. Goring 308, 323 Marke v. Noyes 308 Marter v. Bradley 301 Martin v. Gillham 296 Molineux v. Powell 314 Moore v. Clark 308, 326 Morecraft v. Meux (Doe d.) . 300 Mosely v. Virgin 325 Nash V. Birch (Doe d.) 308 Naylor v. Collinge 301 Neale v. Wyllie 323 North V. Barker 289 Okes V, Ange 291 Penry v. Brown 301, 309 Percival v. Cooke 284 Phillipson v. Leigh 303 Pindar v. Ainsley 304 Pistor V. Cator . 312 Prov. of Q. C. Oxford v. Hallett 320 INSURANCE AGAINST FIRE. XXV RadcIifFe v. D’Oyly PAGK 291 Rankin v. Bradley (Doe d.) 299 Rex V. Zakar 287 Richardson v. Gifford 311, 320 Robinson v. Lewis 326 Litton . 315 Rolfe V. Harris . 325 Sale V. Kitchingham 299 Sampson v. Easterly 299 Sand’s (Dr.) Case . 281 Sellers V. Lawrence . . 286, 289 Southall V. Leadbetter 308 Soward v. Leggatt . 305 Spencer’s Case 298 Stanley v. Twogood . . 307,310 Stone V. Greenwell 398 Strachy v. Francis . 288 Sunderland v. Newton 314 Taylor v. Beal . 326 Tempany v. Burnand ' 318 Torriano v. Young 296 Vickery v. Jackson (Doe d.) 309 Vivian v. Campion 304, 322 Wadham v. Calcraft .325 Walgrave v. Somerset 318 Walton Waterhouse . 321 Walwyn v. Awbery 290 Weigall V. Waters 304 West V. Blakeway 328 Trende 318 Wetherell v. Bird (Doe d.) 310, 315 Whelpdale’s Case 321 Wilson V. Bragg 314 Winn V. White 311 Wise V. Metcalfe 282, 341 Withers v. Dean and Chapter of Winchester 287, 290 Wood V. Avery 311 Woods V. Pope . . 323 Young V. Mantz 308 Young V. Munby 291 Young V. Spencer • 319 INSURANCE AGAINST FIRE. Acey V. Fernie . Alchorne v. Saville . 6 362 364, 365, 366 XXVI TABLE OE CASES. PAGE Andrews v. Ellison . 365, 366 Austin V. Drew 359, 363 Digby V. Atkinson 370 Dobson V. Southby . 353, 354, 355 Doe d. Bridger v. Whitehead 371 Flower v. Peck 371 Knight V. Rowe 371 Pitt V. Laming / 354, 370 Pitt V. Shewin 369 Pittman v. Sutton 371 Smith V. Shewin 362 Doran’s Case 375 Drinkwater v. London Assurance Company 359 Farrington’s Case 375 Friedlander v. London Assurance Company 354 Gieson's Case 375 Goldstone v. Osborne 367 Green v. Bridges 371 Halford v. Keymer 350 Hare v. Groves 370 In re Sun Fire-office 349, 352 Wright and Pole . • . 349, 352 Langdale v. Mason 359 Leeds v. Cheethara 371 Mason v. Sainsbury 363 Mayall v. Mitford 357 Monk V. Cooper 370 Newcastle F. T. Company v. Me Morran . 352, 353 Oldman v. Bewicke 349, 367 Philp’s Case 375 Prinner and another v. Reid and others 357 Reynolds v. Pitt 372 Routledge v. Burrell 367 Rufe V. Turner 354 Sadlers’ Company v. Badcock 350 Salvin and others v. James and others 361, 362 Severn v. Olive 366 Shaw V. Roberts 356, 357 Tarleton v. Staniforth 360 Thompson v. Guyon 371 Vernon v. Smith 371 W’atchorn v. Langford 353 Whitehead v. Price 356 Worsley v. Wood 349, 367 ACTIONS ON RL’ILDERS’ BILLS. xxvii ACTIONS ON BUILDERS’ BILLS. PAGE Adlard v. Booth . 389 Allinson v. Davies . 399 Atkinson v. Bell 397 Basten v. Butler , 287 Bradley v. Milnes 392 Burn V. Miller . 384 Chapel V. Hickes . 399 Cooke V. Munstone . 386 Cottrell V. Apsey 387 Cousins V. Paddon 398, 399 Cutler V. Close 396 Powell 383 Dallman v. King . 392 De Vile v. Arnold , 393 Duckworth v. Alison 401 Earnsworth v. Garrard 400 Ellis V. Hamlyn 386 Farnsworth v. Garrard 396, 389 Fielder v. Ray 385 Fricker v. French 401 Gillett V. Mawman 389 Goodman v. Lowe 402 Gordon v. Martin 384, 390 Grainger v. Raybould . 400 Heath v. Fareland 387 Holbard v. Stevens 385 Holme and another v. Guppy and another 401 Hughes V. Budd 385 Lenny 389 Jones V. Howell 385 Knaps V. Herskall 403 Laidler v. Burlinson 388 Lovecock v. King , 393 Lucas V. Godwin 390 Novosiliski 402 Martin v. Jackson 402 Merretone v. Othawse 389 Moggridge V. Jones • 400 Morgan v. Bieni . • 392 Oldfield V. Lowe 386 Parkes v. Great Western Railway Company • 391 Parmeter v. Burrell . 388 Parton v. Cole . 385 Pepper v. Borland . 384, 395 Rees V. Lines . 386, 389 XXVII! TABLE OF CASES. Reid V. Bates Rex V. Peto Roberts v. Havelock Robson V. Godfrey Sinclair v. Bowles Smith V. White Soulby V. Pickford Thornton v. Place Tye V. Gwynne Vickers v. Cocks Vincent v. Cole Wilmot V. Smith Woods V. Russell Worsley v. Wood PAGE .384 395 389 384, 395 . 388 401 387 396 400 402 334, 385 395 388 392 I ABSTRACT OF THE ACT. PREAMBLE. PAGE Aim, intention, and general objects of the Act » 1 SECTION . GENERAL PROVISIONS. 1. Operation of the Act, and repeal of several Statutes, as set forth in Schedule (A.) . . .3 2. Construction of the terms “street,” “alley,” “square,” “floor,” “story,” “external wall,” “party-wall,” “ already built,” “hereafter to be Wit,” “parish,” “owner,” “official referees,” “surveyor,” “the surveyor,” “ month,” “commissioners of works and buildings,” “justice of the peace,” and “local offi- cers.” The masculine gender declared to include the feminine, and the singular number the plural ; and words importing an individual, to be applicable to corporations, companies, and other aggregate bodies, or bodies corporate . . .3 3. Definition of the local extent and limits of the operation of the Act ..... 7 4. Empowers the sovereign in council to extend the opera- tion of the Act to any place within twelve miles of Charing Cross . . . . .7 GENERAL REGULATION OF BUILDINGS. 5. Buildings divided into rates and classes, as detailed in Schedule (C.), with the exception of those included in Schedule (B.) ; and all buildings rendered subject to the several regulations set forth in detail in Sche- dules (C.), (D.), (E.), (F.), (G.), (H.), (L), and (K.), as regards the erection, alteration, rebuilding, or execution of any works connected therewith . 8 6. Places certain buildings under the special supervision of the ofl&cial referees . . . .10 7. Places buildings hitherto exempted from the operation of the Building Act, and classed in Schedule (B.), under the special supervision of the official referees 10 A 3 VI Abstract of the Act, SECTION PAGE 8. The district surveyor to determine the class and rate of any building not included in either of the foregoing classifications . . . . .11 9. Provides for the modification of current building con- tracts, by a reference, in case of dispute, to the dis- trict surveyor, with an appeal to the official referees 11 10. Provides for the modification of building leases or agree- ments, by a reference to the official referees, subject to the approval of their award by the commissioners of w’orks and buildings . . . .12 11. Gives general power to the commissioners of w'orks and buildings, to modify the rules and regula;{ions of the Act in particular cases, where the official referees ’shall certify either that the Act cannot possibly be complied with, or that its operation presses with un- due severity . . . . .14 12. Gives the same power of modification, by the same means, in case of the rebuilding of existing build- ings . . . . . .14 DUTIES OF BUILDERS. 13. Builders to give two days' notice to the district sur- veyor of all works, under penalty of twenty pounds and treble fees in case of neglect ; also to give notice of recommencement of works after suspension of more than three months ; or in case of change of builder, under similar penalties. Buildings rendered liable to be pulled down as nuisances, in case of re- fusal to admit the district surveyor or official re- ferees to inspect the works . . .15 PROVISIONS RELATING TO BUILDINGS GENERALLY. 14. The district surveyor to give forty-eight hours' notice of any irregularities to the builder, who is forthwith to amend the same: proceedings in default thereof . 17 15. Builders to give seven days' notice to the official re- ferees, of all buildings subject to their special super- vision, with details of the proceedings by the official referees and the builder thereupon . . .18 16. Regulations relative to buildings classed in Schedule (B.) 20 1 7. Reserves power of entry to view, at all reasonable times, to the district surveyor and official referees, with pro- vision for forcible entry in case of refusal . . 22 18. Declares all buildings erected in contravention of the provisions of the Act, to be nuisances, and as such, liable to be indicted and abated accordingly . 22 19. Imposes a penalty of fifty shillings, or imprisonment, Abstract of the Act. Vll SECTION PAGE on workmen offending against the provisions of the . Act . . ... 24 PARTY WALLS, PARTY ARCHES, AND PARTY FENCE WALLS, IN INTER- MIXED PROPERTIES. 20. General rules relating to party-walls, &c. in intermixed properties . . . . . .25 21. Notice to be given by the “building-owner” to the “ adjoining owner” three months before commence- ment of any works . . . .26 22. Works may be modified to suit the adjoining owner, on application by such adjoining owner to the official referees . . . . . .27 23. Works may be delayed to suit the convenience of the adjoining owner, on application to the official re- ferees . . , . . . .28 24. Prescribes a form of practice for supplying a want of consent on the part of the adjoining owner, and for rendering such consent compulsory . . 29 25. As to the reparation or rebuilding at the joint expense of several owners . . . . .31 26. The expense of rebuilding party-walls to be borne by the building-owner, excepting in the cases provided for by section 25 . . . . .31 27. Party-walls to be erected of the highest rate of either of the adjoining buildings ; or else an external wall to be built against the existing party-wall . . 32 28. Building-owner to make good any damages resulting from his operations, and . . . .32 29. To rebuild, or make good any party-wall damaged in the course of erection by him, or in erecting any ex- ternal wall against any party-wall ; and, moreover, to proceed with the works with all possible dispatch 33 30. Any owner pulling down and rebuilding a sound party- wall, is not to be entitled to more than his fair pro- portion of the soil or materials belonging to the same, but must make compensation to the adjoining owner for his proportions if he make use of them. The official referees to award the amount of compen- sation in case of dispute . . . .34 31. Buildings may be raised in conformity with the pro- visions of this Act ; but this building-owner must at the same time raise the chimneys, &c., and repair all damages sustained by the adjoining owner. The ad- joining owner making use at any future time, of any building so raised, to be liable to his fair proportion . of the, expense of such raising &c. . . .34 viii Abstract of the Act. SECTION PAGE 32. Makes provisionfor the repairing, or rebuildingof party- fence-walls . . . . .35 33. Enacts regulations respecting party timber partitions . 36 34. Pulling down of intermixed buildings . . .39 35. Exceptions in favour of the inns of court, &c. . 39 36. Gives power of entry to execute works in accordance with the provisions of the Act in case of contuma- cious refusal ; and imposes-penalties on parties hin- dering or obstructing such works . . .40 37. Authorizes any owner to stop up openings made by any adjoining owner in any external wall . .41 38. Enacts regulations relative to the building of party- walls on the line of junction of vacant ground . . 42 39. Regulates the building of chimney breasts, &c. in new party-walls for the use of the adjoining owner . 43 RUINOUS BUILDINGS. 40. Enacts regulations for the repairing, pulling down, and rebuilding of ruinous buildings . . .44 41. Provides for disposal of the materials to pay costs . 46 42. Any deficiency to be made good by the owner of such ruinous buildings . . . . .47 43. Enacts regulations respecting ruinous chimneys, and . 48 44. Renders the owner of ruinous chimneys liable for all da- mage arising from their fall, &c. . . .49 45. Vests in the court of mayor and aldermen the powers and authorities given by the Act to justices, &c. . 50 EXPENSES OF WORKS. 46. Provides generally for the repayment of costs of works in certain cases, with remedies in case of delay . 50 47. Sets forth the practice to be observed in recovery of such costs . . . . . .53 48. Provides for the reimbursement of costs to occupiers . 55 49. Provides for the recovery of costs, as affected by exist- ing leases or agreements . . . .56 50. Empowers the official referees to determine the pro- portional contributions of costs and expenses to be paid by joint or several owners . . .58 DRAINAGE OF BUILDINGS. 51. Drains to be built in accordance with the directions and specification contained in Schedule (H.), enacting penalties in case of default ; but reserving all the ex- isting powers of commissioners of sewers . . 59 STREETS AND ALLEYS. 52. Regulates the width of all future streets or alleys, under . certain penalties . ... 60 Abstract of the Act. SECTION USE OF BUILDINGS. 53. Prohibits the occupation of cellars, or other rooms or ' places unfit to be used as dwellings 54. Prohibits the erection of any building for the use of any business dangerous, as regards liability to fire or combustion, within fifty feet of any other building. No new business of the kind to be established in any existing building within forty feet of any public way, or fifty feet of any other building ; and where any such business is now carried on within the above de- scribed limits, such business to become illegal at the expiration of twenty years after the passing of this Act ...... 55. Enacts similar restrictions with regard to any business or trade noxious or dangerous as regards health 56. Endeavours to mitigate the danger or unhealthiness of any business, may be given in mitigation of the pe- nalties or punishments provided by Sections 54 and 55, and ...... 57. Provides an appeal in certain cases not specifically mentioned in the Act .... 58. Provides a trial by jury to determine facts in dispute . 59. Regulates proceedings in appeal to certain sessions 60. Reserves all common law and statutory remedies for such cases, otherwise made and provided 61. Provides for the removal of noxious or dangerous trades by purchase, either by voluntary contribu- •tions, or by a parochial rate 62. Empowers the raising of a rate for the purpose of com- pensation in certain cases .... 63. Exempts public gas works and distilleries from pro- secution as nuisances .... DISTRICT SURVEYORS. 64. Appointment of districts .... 65. Appointment of surveyors .... 66. Practical qualifications and fitness of surveyors to be ascertained by examination 67. Tenure of office by district surveyors . 68. Their duties and functions .... 69. Their qualifications and disqualifications for acting 70. Continues in office the present surveyors appointed under the 14th Geo. III. c. 78. 71. Declaration of official fidelity to be made by the sur- veyors on their appointment, with a penalty for acting before making such declaration 72. Regulates their offices and their- attendance therein ; ix PAGE 60 61 63 64 65 67 68 69 69 70 71 71 72 72 73 73 74 74 75 X Abstract of the Act. SECTION and orders returns to be made of their names and residences to the registrar of metropolitan buildings 73. Provides deputy surveyors “ pro tempore" 74. Vacancies to be filled up within one month, and sur- veyors “ ad interim," to be appointed by the official referees ...... 75. Regulates the business of the districts ; providing for the appointment of assistant surveyors, if necessary 76. No district surveyor to have power over any buildings erected by him in his private professional character within his own district .... 77. Surveyor’s fees ..... 78. Returns to be made by every surveyor, monthly, to the registrar of buildings, of the number of houses, &c. built in his districts ; and the amount of fees re- ceived by him. A copy of such return to be kept by him at his office, and to be open to public inspec- tion, on payment of one shilling 79. Imposes penalties on any surveyors guilty of extor- tion, negligence, unfaithfulness, or incapacity OFFICIAL REFEREES. 80. Provides for the appointment of two official referees, with rules for their tenure of office . 81. General detail of their functions 82. As to matters of reference, — one referee may act 83. Powers of the referees with respect to awards. Awards to be received as evidence, and to be binding on all . parties ... 84. Enacts that no party having entered into a reference before the official referees, shall at any time be able to revoke such reference .... 85. Empowers the official referees to compel by summons the attendance of persons and documents required in evidence. Also to administer oaths, and take evi- dence on oath. Any person giving false evidence on oath before them, to be deemed guilty of perjury . 86. The awards of the official referees to be evidence in all courts of law and equity . . . . 87. Declaration of official fidelity to be made by the official referees . • . 88. Regulates the business of the official referees, and em- powers them to delegate and revoke the powers vested in them . . . . . REGISTRATION OF BUILDINGS. 89. Appointment of a registrar ; tenure and rules of his office ...... PAGE 75 76 77- 77 78 78 79 80 81 82 82 83 84 84 85 85 85 86 Abstract of the Act. XI SECTION PAGE 90. Declaration of official fidelity to be made by the re- gistrar . . . . . .87 91. Directs the registrar to inspect and have custody of the records of the official referees ; also to furnish copies • of their awards, and to authenticate the same, on payment of the proper fees . . .87 92. Regulations as to the office of the registrar, and as to • other matters connected with his business . . 88 93. Registration of awards, &c. . . . .88 94. Regulates the salaries of the official referees and registrar 89 95. Disqualification of official referees and registrar, in case of other appointments . . . .89 96. Provides funds for the payment of a portion of salaries of the official referees and registrar, by certain rates and levies . . . . . .89 97. Provides for payment of the balance out of the consoli- dated fund . . . . .90 98. Regulates the application of the office fees received by the official referees and registrar . . .91 99. Enacts that the appointments, functions, and duties of any officers appointed by this Act, shall be subject to regulation by any future act of parliament . 91 LEGAL PROCEEDINGS. 100 and 101 . 102 . 103. 104. 105. 106. 107. 108. 109. no. } As to informalities in distress, and actions for da- \ mages arising therefrom . . J Provides means for the recovery of money under awards Regulates proceedings in prosecution of offences under this Act ...... As to removal of proceedings by writ of certiorari Provides an appeal in case of convictions in penalties Limitation of proceedings for penalties Recovery of penalties, and their appropriation Regulation of actions against parties acting bond fide under the provisions of this Act Security for costs of actions .... Regulates prosecutions for neglect or evasion of the provisions of this Act .... 91 92 92 93 94 94 95 95 95 98 98 MISCELLANEOUS. 111. Makes provision as to the several liabilities of owners and occupiers for expenses, &c. under the Act . 99 112. Regulates the service of notices required by the Act . 99 113. Mode of service upon occupiers . . . 101 114. Mode of service upon owners, by delivery, and its effect ...... 101 115. Mode of service upon owners by transmission of no- tice by post ..... 101 xii Abstract of the Act. SECTION 116. Mode of service upon the district surveyor and official referees ...... 117. Regulates consents in case of incapacitated persons 118. Exempts all awards and other documents under this Act from stamp duties . . . • 119. Declares this Act to be a public act, and 120. Liable to be amended or repealed during the present session of parliament (1844-5) SCHEDULES. A. Acts and parts of acts repealed B. List of buildings exempted from the ordinary super- vision of the district surveyor, and placed under the special supervision of the official referees C. Rules for determining the classes and rates to which buildings are to belong — as well as the thicknesses of the several walls of such buildings, according to their classes and rates ..... D. Rules concerning walls of every kind . , . E. Rules concerning external projections . . . E. Rules concerning chimneys raised, built, or rebuilt G. Rules concerning roofs and roof coverings H. Rules concerning drains, cesspools, &c. I. Rules concerning streets and alleys K. Rules concerning dwelling-houses, with regard to back- yards and areas; and rooms under-ground and in roofs ...... L. List of fees payable to district surveyors M. Rules of practice laid down, and forms of notices re- quired by the Act ..... PAGE 102 102 103 103 103 104 105 107 121 131 133 137 138 139 140 142 144 Metropolitan iSmllmifis; ^et 7 &: 8 Victoria, Cap. 84. An Act for regulating the Construction and Use of Buildings in the Metropolis and its Neighbourhood. [9th August, 1844.] Whereas by the several acts mentioned in Schedule Preamble. (A.) to this Act annexed, provisions are made for regu- lating the construction of buildings in tlie metropolis, and the neighbourhood thereof, within certain limits therein set forth; But forasmuch as buildings have Extension of since been extended in nearly continuous lines or streets amSment far beyond such limits, so that they do not now include of law. all the places to which the provisions of such acts, according to the purposes thereof, ought to apply ; and moreover such provisions require alteration and amend- ment ; It is expedient to extend such limits, and other- wise to amend such acts : And forasmuch as in many parts of the metropolis improve- and the neighbourhood thereof, the drainage of the Sllinage. houses is so imperfect as to endanger the health of the inhabitants; It is expedient to make provision for facilitating and promoting the improvement of such drainage : And forasmuch as by reason of the narrowness of Securing a streets, lanes and alleys, and the want of a thorough- ®v“dth^o"f fare in many places, the due ventilation of crowded streets, &c. neighbourhoods is often impeded, and the health of the Improper use of build- ings. Regulation of explosive works. Regulation of delete- rious works. Execution of Act, and su- perintend- ence thereof. The Metropolitan Buildings Act. inhabitants thereby endangered, and from the close contiguity of the opposite houses, the risk of accident by fire is extended; It is expedient to make provision with regard to the streets and other ways of the metro- polis, for securing a sufficient width thereof: And forasmuch as many buildings and parts of buildings unfit for dwellings are used for that purpose, whereby disease is engendered, fostered and propa- gated ; It is expedient to discourage and prohibit such use thereof : And forasmuch as by the carrying on in populous neighbourhoods of certain works, in which materials of an explosive or inflammable kind are used, the risk of accidents arising from such works is much increased ; It is expedient to regulate, not only the construction of the buildings in which such dangerous works are carried on, but also to provide for the same being carried on in buildings at safe distances from other buildings which are used either for habitation or for trade in populous neighbourhoods : And forasmuch as by the carrying on of certain works of a noisome kind, or in which deleterious mate- rials are used, or deleterious products are created, the health and comfort of the inhabitants are extensively impaired and endangered ; It is expedient to make provision for the adoption of all such expedients as either have been or shall be devised for carrying on such businesses, so as to render them as little noisome or deleterious as possible to the inhabitants of the neighbourhood ; and if there be no such expedients, or if such expedients be not available in a sufficient de- gree, then for the carrying on of such noisome and unwholesome businesses at safer distances from other buildings used for habitation : And forasmuch as great diversity of practice has ob- tained among the officers appointed in pursuance of the said acts to superintend the execution thereof in the several districts to which such acts apply, and the means at present provided for determining the nume- rous matters in question which constantly arise, tend to promote such diversity, to increase the expense, and* 7 '& 8 VicT. Cap. 84. 3 t I f I s )f )f t if d n :h io e- :ly ke as }a ne he or le- lod her I oh- : of Nn j the ' oe- 5od and to retard the operations of persons engaged in build- ing; It is expedient to make further provision for regu- lating the office of surveyor of such several districts, and to provide for the appointment of officers to super- intend the execution of this Act throughout all the districts to which it is to apply ; and also to determine sundry matters in question incident thereto, as well as to exercise in certain cases, and under certain checks and control, a discretion in the relaxation of the fixed rules, where the strict observance thereof is impracti- cable, or would defeat the object of this Act, or would needlessly affect, with injury, the course and operation of this branch of business : Now for all the several purposes above mentioned. General and for the purpose of consolidating the provisions of Provisions. the law relating to the construction and the use of buildings in the metropolis and its neighbourhood ; Be it enacted, by the Queen’s most excellent Majesty, by and with the advice and consent of the lords spiri- tual and temporal, and commons, in this present par- liament assembled, and by the authority of the same. That with regard to this Act generally, so far as relates Operation of to the operation thereof in reference to time, it shall come into operation at the following times; (that is to say,) as to the districts and the officers to be appointed in pursuance hereof on the first day of September next, and as to the buildings, streets and other matters, on the first day of January, one thousand eight hundred and forty-five. And thaton the said first day of January all the statutes re- Acts mentioned in theSchedule (A.) hereunto annexed, except so far as in the said schedule is provided, shall be and are hereby repealed. II. And be it declared, with regard to this Act gene- 2. rally, so far as relates to the construction of certain of terms^.^’°" terms and expressions used therein. That the following terms and expressions are intended to have the mean- ings hereby assigned to them respectively, so far as such meanings are not excluded by the context, or by the nature ol the subject-matter; that is to say, — The word “ street ” to include every square, circus, street, crescent, street, road, place, row, mews, lane, or B 2 4 General Provisions. Alley. Square. Floor. Story. External wall. Party-W’all. The Metropolitan Buildings Act. place alono^ whicli carriages can pass, or are in- tended to pass ; and that, wliether there be or be not, in addition to the carriage-way, a foot- way, paved or otherwise : The word alley” to include any court, alley, passage, or other public place, which can be used as a footway only : The word ** square,” as applied to any area of building, to contain one hundred superficial feet: The word “floor” to mean the horizontal plat- form forming the base of any story, and to in- clude the timber or bricks, or any other sub- stance constituting such platform : The word “ story” to include the full thickness of such floor, as well as the space between the upper surface of one floor and the under That aay- ‘>>at the thick- .. /. . n ness of the floor IS to be included surface ol the floor in the measurement of the story, next above it ; or if there be no floor, then the space between the surfitce of the ground and the under surface of the floor next above it : The term “ external wall ” to apply to every outer wall of buildings now built or hereafter to be built, which (excepting the footing thereof on one side) shall stand wholly upon ground of the owner of such buildings, and shall not be used or intended to be used as a party-wall under the definition hereinafter contained, whether the same shall adjoin or not to other outer or to party-walls : A “ party-fence-wall” is a party-wall dividing intermixed laud, such wall not beingused for building purposes, but only as a boundary, fence, or division wall. used, as a separation of two or more buildings with a view to the occupation thereof by differ- ent families, or which shall be actually occu- pied by different families, and also every wall which shall stand upon ground not wholly be- The term “ party-wall” to apply to every wall which shall be used, or be built in order to be 7 & 8 ViCT. Cap. 84. 5 longing to the same owner to a greater extent General than tlie projection of its footing on one side : Provisions. The term “ already , built used in re- Je^^es, or lerence to buildings, agreements for leases extending over a series of years, may be modified according to the provi- sions hereinafter contained in sections 9 and 10. to apply to build- ings built before the firslday of January, one thousand eight hundred and forty-five, or commenced before that day, and covered in and rendered fit for use within twelve months tliereafter ; and used in reference to streets and alleys, to apply to all streets or alleys made or laid out before that day, and which shall be formed and rendered fit for use within twelve months thereafter: The term “ hereafter to be built,” used in refer- Hereafter to enceto buildings, to apply to all buildings to be ^ built or commenced after the first day of Ja- nuary, one thousand eight hundred and forty- five, or which, being commenced, shall not be covered in within twelve months thereafter ; and used in reference to streets and alleys, to apply to all streets or alleys not laid out before the said first day of January, or whicli being laid out shall not be rendered fit for use within twelve months thereafter : The word “parish” to include all parochial dis- Parish, tricts and extra-parochial places in which sepa- rate churchwardens, overseers, or constables are appointed, and where two parishes have been united for ecclesiastical purposes, then to in- clude such united parishes : The word “ owner” to Owner, apply generally to Tenants in common will be every person in pos- bound under the provisions of session or receipt, this act, (ss. 50 and U2 ) to join . , p ‘ , in necessary repairs, that is to either of the whole say, in such repairs as the district or of any part of the surveyor or official referees may rents or profits of certify to be necessary, any ground or te- nement, or in the occupation of such ground or 6 General Provisions. Official re- ferees. Surveyor. The Sur- veyor. Month. The commis- sioners of works and buildings. Justice of peace. Local officers. The Metropolitan Buildings Act. tenement, other than as a tenant from year to year, or for any less term, or a tenant at will : The term “ official rel’erees” to mean the persons appointed in pursuance of this Act to be official referees of metropolitan buildings : The word “ surveyor to apply to all surveyors to be appointed in pursuance of this Act, or whose appointment is confirmed by this Act ; and also to all deputy or assistant surveyors to be appointed under this Act : The words “the surveyor,” used without any ad- dition, to mean the surveyor in whose district the buildings, street, or alley, or other subject- matter shall be, or any deputy or assistant sur- veyor duly acting in his behalf: The word “ month ” to mean a calendar month : The expression “ the commissioners of works and buildings” to mean the commissioners of her Majesty’s woods, forests, land revenues, works and buildings : The expression “justice of the peace” to mean a justice of the peace for the county, division, or liberty within which the building or other sub- | ject-matter, or any part thereof, is situate; i unless it be situate within the city of London or the liberties thereof, in reference to which any matter or thing elsewhere required or authorized to be done either by one or by two or more jus- tices of the peace, may be done either by the lord mayor of the city of London, or by any one, two, or more justices of the peace for the said * city ; or unless the subject-matter be situate in the district of any police court of the metro- polis, in reference to which any matter or thing elsewhere required or authorized to be done by two or more justices may be done by one ma- i gistrate : And, generally, whensoever the name of an officer having local jurisdiction in respect of his office ; is referred to, without mention of the locality to ' which the jurisdiction extends, such reference is to be understood to indicate the officer having 7 & 8 ViCT. Cap. 84. 7 jurisdiction in that place, within which is situate the building or otlier subject-matter, or any part thereof to which such reference applies : And subject as aforesaid to the context, and to the nature of the subject-matter, words im- porting the singular number are to be under- stood to apply to a plurality of persons or things ; and words importing the masculine gender are to be understood to apply to per- sons of the feminine gender ; and words im- porting an individual are to be understood to apply to a corporation or company, or other body of persons. III. And be it enacted, with regard to this Act gene- rally, so far as relates to the operation thereof in refer- ence to localities, that the operation of this Act shall extend to all places within the following limits ; (that is to say) To all such places lying on the north side or left bank of the river Thames as are within the ex- terior boundaries of the parishes of Fulham^ Ham- mersmith, Kensing- ton, Paddington , . T>f by rr . 1 IT this Act are printed m italics. Hampstead, Horn- sey, Tottenham, Saint Pancras, Islington, Stoke Newington, Hackney , Stratford-le-Bow, Brom- ley, Poplar and Shadwell : And to such part of the parish of Chelsea as lies north of the said parish of Kensington : And to all such parts and places lying on the south side or right bank of the said river as are within the exterior boundaries of the parishes of Woolwich, Charlton, Greenwich, Deptford, Lee, Lewisham, Camberwell, Lambeth, Streat- ham. Tooting and Wandsworth : ' And to all places lying within two hundred yards from the exterior boundary of the district hereby defined, except the eastern part of the said boundary, which is bounded by the river Lea. IV. And forasmuch as, partly by the rapid increase General Provisions. Singular and plural. Masculine and femi- nine. Corporate body. 3 . Extent of operation of Act in refer- ence to loca- lities. 4 . ower to ex- 8 General Provisions. tend the limits of Act. Publication of notice of intention to extend limits of Act. 5 . Regulation of buildings. The Metropolitan Buildings Act, of population in the neighbourhood of the districts to which tin's Act is to apply, and partly by the tendency of this Act to induce l3uilding speculation in such neighbourhoods in order to evade the provisions thereof, the evils which have arisen in the districts not now subject to regulation, will in all probability arise in such neighbourhoods, It is expedient to make provision for the prevention of such evils; and if they should arise, for the remedy thereof, now for those purposes, Be it enacted, with regard to this Act generally, so far as relates to the application thereof to other parts and places in the neighbourhood of the districts appointed by this Act, whether such districts immediately adjoin such parts or places or not, That if, from the growing increase of the population or otherwise, it shall appear to her Majesty in council to be expedient that the pro- visions of this Act should be extended to any place within twelve miles from Charing-cross, in the city of Westminster, then it shall be lawbil for her Majesty in council to direct, by order in council, that at or from a time to be named in such order, the provisions of this Act shall apply to such places; and, at or from such time, all such provisions of whatever nature, whether penal or otherwise, so far as they shall be capable of application to such places, shall be and are hereby declared to apply thereto as if such places were ex- pressly named herein; and that notice of the time when it shall please her Majesty to order any such extension to be taken into consideration by her privy council shall be published by royal proclamation in the “ Lon- don Gazette,’’ one month at the least before such extension shall be taken into consideration ; And that three weeks at the least before such matter shall be so considered, it shall be the duty of the official referees and the overseers of the parishes within which such parts or places are situate, to cause copies of such proclamation to be fixed on the doors of the churches and chapels within such parishes, and that every order in council made in pursuance of this enactment, shall be published in the “ London Gazette.*’ V. And now generally, for the purpose of regulating 7 & 8 ViCT. Cap. 84. the building; and the rebuilding upon sites of former Buildings, buildings, and the enlarging and altering of all build- °,nd ings, of what nature soever, within the limits aforesaid; Be it enacted, with regard to every such building here- Rates of after to be built (except the buildings comprised in andtS’- Schedule (B.) hereto annexed, and except sewers made by or under the direction of any commissioners of footings, and sewers), so far as relates to building the same, and ceining”' with regard to every such building, either already or buildings, hereafter built, (except the said buildings comprised in the said Schedule (B.), and except the said sewers), so far as relates to the rebuilding, and the en- For a definition of the dis- larging or altering the tinction between “ Repair” and same, and that whether “ Rebuilding,” see the Glos- such buildings be built or «ary, Art. Rebuilding. rebuilt on old or new foun- dations, or partly on old and partly on new foundations. That, notwithstanding any thing contained to the con- trary in any act of parliament now in force, every such building shall be built, rebuilt, enlarged or altered in reference to the walls, whether external or party-walls, and to the number and height of the stories or rooms therein, and to the chimnies, and to the roofs, and to the limbers, and to the drains, and to the projections, and to any other parts or appendages of every such building, in the manner and of the materials, and in every other respect in conformity with the several par- ticulars, rules and directions which are specified and set forth in the several Schedules (C.),(D.), (E.), (F.), (G.), (H.), (I.), (K.), to this Act annexed, according to the classes of buildings, and the rates of such classes to which such buildings are by the Schedule (C.) declared to belong ; subject nevertheless to any other rules and directions in this Act contained in the same behalf; and subject in every case of doubt, difference or dissatis- faction in respect thereof, either between any parties concerned or between any party concerned and the surveyor of the district, to the determination of the official referees, upon a reference of the matter in B 3 10 Buildings, New and Old. 6 . Buildings under super- vision of offi- cial referees. 7 . Special su- pervision of exempted buildings. The Metropolitan Buildings Act. question, according to the provisions of this Act in that behalf. VI. And be it enacted, with regard to all buildings of the first rate of the second or warehouse class, and to all buildings of the third or public-building class (except the buildings hereinbefore excepted), so far as relates to the supervision thereof. That, subject to the provisions in Schedule (C.) and elsewhere in this Act made in respect thereof, every such building shall be built under the special supervision of the official referees, according to the provisions of this Act in that behalf, as well as under the ordinary supervision of the surveyor ; and if any difference arise as to whether any such building be liable to such special supervision, the same shall be determined by the official referees ; subject nevertheless to an appeal, at the instance of any party interested, to the commissioners of works and buildings, whose decision in the matter shall be final. VII. And whereas, by several acts now in force, certain buildings and structures have been exempted from the operation of the Act mentioned in the Schedule (A.), hereto annexed, for the regulation of buildings and party-walls within the cities of London and West- minster, and the liberties thereof, and other the parishes and places therein mentioned : Be it enacted, with regard to the buildings hereinbefore exempted and comprised in Schedule (B.), Many buildings hitherto ex- empted from the operations of the Building Act, as royal palaces, gaols, bridges and many others, as detailed in Schedule (B.) are by this clause brought under its jurisdiction. so far as relates to the su pervision thereof, That, not- withstanding any thing contained to the contrary in any act or acts now in force, every such building or other structure mentioned in the said Schedule (B. Part I.) shall be subject to special supervision by the official referees, according to the provisions of this Act in that behalf; and every such building or other struc- ture mentioned in the said Schedule (B. Part II.) shall be exempt from supervision. 7 & 8 VicT. Cap. 84. 11 VIII. Provided always, and be it enacted, with re- gard to any building of whatever kind, which is not hereby expressly assigned to any class or rate of a class, so far as relates to the application of this Act thereto, That if any party be desirous of erecting &ny building which does not come within any one of the said classes, or of any rate of such classes, then such building shall be built in accordance with such class and rate as shall be directed by the surveyor, subject, as in other cases of doubt, difference or dissatisfaction, to an appeal to the official referees. IX. Provided always, and be it enacted, with regard to any building of whatever class, so far as relates to the modification of any written contract or agreement now in force for erecting or altering such building (other than a contract or agreement in the nature of a building lease), That it shall not be lawful to execute such contract otherwise than in conformity with the provisions of this Act ; but This clause clearly sets aside all contracts for building ac- cording to plans not in con- formity with the provisions of this Act. Where, however, such a contract, entered into in the form of an agreement to build, has been partially acted upon, and the plan thereby actually Buildings, New and Old. 8 . Buildings not within rates. 9. Modification of building contracts. it shall be lawful for either party, and he is hereby entitled to deviate from such contract, so far as any part thereof may re- main to be executed after this Act shall have come into operation ; and the al- established ; such plan may be carried out to completion, pro- vided that all the foundations be laid before the 1st of January, 1845, and the building com- pleted before the 1st of January, 1846, for it would then come under the definition (s. 2,) of “ already built.” A lessee can- not, however, call upon his les- sor to alter any building plan costs and expenses of the attached to a current con- works when performed ac- tract, excepting insomuch as cording to the provisions of same may have been ren- this Act, and the works as *>y stipulated for m such con- &c. ; and, moreover, tract, then, upon notice a lessor so altering any plan as terations rendered neces- sary by this Act shall be performed as if this Act had been in force when such contract was entered into; And that if the par- ties thereto shall disagree about the difference of the Reference to the surveyor, or on appeal to the offi- cial referees. 12 Buildings^ New and Old. 10 . Modification of building of leases. The Metropolitan Buildings Act. being given in writing by to conform with the provisions one party to the other, it would be protected ^11 1 *i /• I r from any actions at the suit of shall be h vful for either party , and he IS liereby en- f^j. go doing. Nevertheless, titled, to refer the matter neither lessor nor lessee will be to the surveyor, wlio shall justified under this Act in alter- determine the same, sub- <>«''iating from any cur- ject to appeal as aforesaid to the official referees ; and the award of such official referees shall be final and rent contract m any respect other than to accommodate it strictly to the legal provisions of this Act. The main difference between binding on all the parties, th^ection and the ensuing (e. , . o,, r » 10,) IS, that this applies espe- and in all respects as d such cially and solely to building award had formed part of contracts in actual operation, and to current building agree- ments ; whereas the other (s. 10,) provides for buildings in esse, or rebuildings contingent upon leases or agreements either actually existing, or which may hereafter be entered into. the contract ; and the costs of the reference shall be borne by all, or any, or either of the parties, in such manner and propor- tion as the surveyor, or, in case of appeal, as the official referees, shall appoint. X. Provided always, and be it enacted, with regard . clause affects policies of , s insurance, inasmuch as they are to any building, of what- contingent building agreements, ever class, so far as relates and that this Act compels all to the modification of any existing lease or agree- ment for a lease being of the nature of a building lease, whereby any person may be bound to erect buildings, That notwith- standing any thing herein contained, if it be made to appear to the official re- ferees that any rules by this new buildings to be rebuilt in conformity with its regulations. But as in no case can the in- sured call upon the insurer for more than the actual amount of the policy, the clause (if any) binding a lessee to rebuild in case of fire becomes a building agreement between a lessor and lessee, and as such is capable of modification or arrangement be- tween the parties, as provided for by sections 9 and 10 of this Act. Act prescribed will prevent the due observance of or be at variance with any such lease or agreement, and that the objects of this Act may be obtained by modifying such rules either entirely or partially in conformity with such lease 7 & 8 ViCT. Cap. 84. 13 or agreement, then it shall be lawful for the said official referees by their award to authorize such modification, subject nevertheless to the approbation of the commis- sioners of works and buildings, and subject to such modification, or in default thereof it shall be the duty of such person so bound to erect buildings, and he is hereby required to erect every building agreed to be built by such lease or agreement, according to the con- ditions rendered necessary by this Act, in the same or like manner as if this Act had been passed and in ope- ration at the time of making such lease or agreement, And that on the completion of such works, either ac- cording to the provisions of this Act or according to such modification aforesaid, and on giving to the lessor and other owners of such building fourteen days’ notice of his intention to apply to the official referees on this behalf, it shall be lawful for the lessee or tenant, and he is hereby entitled to require the official referees to ascertain what loss present and prospective has been occasioned by the observance of the provisions of this Act, and having regard to the respective terms and interests of the lessee or tenant, the lessor and other owners of such building, and having regard to any profit, benefit or advantage, which may have accrued to such lessee or tenant since the execution of such lease or agreement, and which may appear to the said official referees not to have been In the contemplation of the parties to such lease or agreement at the time of such execution thereof as aforesaid, to determine whe- ther he is entitled to any and what compensation, whe- ther by payment of money or reduction of rent, or both, or otherwise; And that, on the receipt of such requisi- tion, and on proof of due notice thereof having been given to the lessor and other owners of such building, it shall be the duty of such official referees, and they are hereby required to proceed to ascertain if any and what loss has been so occasioned, and having regard as aforesaid to such terms and interest as aforesaid, and to such profit, benefit, or advantage as aforesaid, to de- termine if any and what compensation as aforesaid is to be paid in respect thereof, and by whom the same is BuildingSj New and Old. Application to official re- ferees. Proceedings thereon. 14 Buildings^ New and Old. 11 . Commis- sioners of works and buildingsem- powered to modify rules generally. Report of oliicial re- ferees. Extent of modification. Represen- tation by parties. Order there- upon. 12 . Power to modify pro- visions of this Act as to existing buildings, to be rebuilt. The Metropolitan Buildings Act. to be paid, and in what proportions, and their decision in the matter shall be final. XI. And, for the purpose of preventing the express provisions of this Act from hindering the adoption of improvements, and of providing for the adoption of expedients either better or equally well adapted to ac- complish the purposes thereof ; Be it enacted, with re- gard to every building, of whatever class, so far as relates to the modification of any rules hereby pre- scribed, That if, in the opinion of the official referees, the rules by this Act imposed shall be inapplicable, or will defeat the objects of this Act, and that by the adop- tion of any modification of such rules, such objects will be attained either better or as effectually, it shall be the duty of such official referees to report their opinion thereon, stating the grounds of such their opinion, to the commissioners of works and buildings ; And that, if on the investigation thereof it shall appear to the said commissioners that such opinion is well founded, then it shall be lawful for the said commissioners or any two of them to direct that such modification may be made in such rules as will, in their opinion, give effect to the purposes of this Act; And that, although such official referees shall be of opinion that such modifications are not requisite or admissible, yet if any party interested present to the official referees a representation setting forth the grounds whereon such modification is claimed, it shall be the duty of the official referees, and they are hereby required to report such representation, as well as their opinion thereon, to the said commissioners, with the grounds of such their report and opinion ; And that thereupon, if the said commissioners think fit, it shall be lawful for them or any two of them to direct the official referees to make such order in the matter as may appear to them to be requisite. XII. And be it enacted, with regard to buildings al- ready built, so far as relates to the rebuilding thereof in conformity with this Act, in respect of the required area, or in any other respect than the required height and thickness of walls. That if a full compliance with the provisions of this Act be attended by great loss and 7'& 8 VicT. Cap. 84. 15 inconvenience, then, subject to the report of the official Buildings, referees, and to the consent of the commissioners of works and buildings, and to commissioners may impose Old. such terms as the said in that behalf, it shall be lawful for the parties concerned to rebuild such build- ings on the site of the old buildings as near as may be practicable, but so that, nevertheless, both the party- walls and the external walls be of the required height and thickness. XIII. And be it enacted, with regard to the works to Builders. be executed in pursuance of this Act, so far as relates to 13 . the supervision thereof by the surveyors. That two days works before the following acts or events ; that is to say — to be executed. Before any building shall be begun to be built : , , ° surveyors. and also, Before any addition or alteration which by this Act is placed under the supervision of the surveyor, shall be made to any building; and also. Before any party-wall, external wall, chimney- stack or flues shall be begun to be built, pulled down, rebuilt, cut into, or altered ; and also. Before any opening shall be made in any party- wall; and also. Before any other matter or thing shall be done which by this Act is placed under the supervision of the surveyor ; except as hereinafter is pro- vided. It shall be the duty of the builder (by which term is to be understood, both in this provision and elsewhere throughout this Act, the master-builder or other person employed to execute any work, or if there be no master- builder or other person so employed, then the owner of the building, or other person for whom or by whose order such work is to be done), and he is hereby required to give to the surveyor, at his office, notice in the terms specified in the form (No. 1.) contained in the schedule of notices annexed to this Act, or to the like effect; And that if any ^ ^ , ^20 penalty builder neglect to give such i„ give „o- notice, or begin to build, insert in the contract a condi- or do any of the things tion as follows : “ The building 16 Builders. ^20 penalty for not giving fresh notices. Penalty for beginning without notice; or refusal to admit sur- veyor. Emergency. The Metropolitan Buildings Act. aforesaid, before sucll no- to be built in strict conformity tice,or before the expiration the provisions of theBuild- c 1 • j r * 1 inff Act, and all notices to be of such period of two days ; then, in every such case, complied with, and all fees paid the party offending shall, by the builder.” for every such default, forfeit and pay to such surveyor, treble the amount of the fees which such surveyor would have been entitled to receive for his trouble in inspecting the same, and shall also forfeit for every such default, a sum not exceeding twenty pounds ; And that if, for any period exceeding three months, any builder having duly begun any building, requiring compli- ance with the provisions of this Act, suspend the progress of such building, and again go on with the same ; or if, during the progress thereof, the builder be changed ; then, two days before such builder shall enter upon the performance of the work, it shall be the duty of such builder to give notice to the surveyor; and such notices must be in the terms specified in the forms (Nos. 2 and 3.) contained in the schedule of notices annexed to this Act, or to the like effect ; and must be given to the surveyor, or left at the surveyor’s office, in like manner as is required upon beginning any new building ; And that if any builder make de- fault or neglect to give or leave such notice, he shall forfeit for every such offence a sum not exceeding twenty pounds ; And that if any such building, chimney or wall be begun to be built, pulled down, rebuilt, cut into or altered as aforesaid, or be proceeded with after any suspension of the progress thereof before such notice has been given ; Or if such surveyor or the official referees be refused admittance to inspect the same premises, then such building or work shall be liable to be abated as a nuisance under the provisions herein contained : Provided always, that if by reason of any emergency any act, matter, or thing placed under the supervision of the surveyor be required to be done immediately, or before notice can be given to the sur- veyor, then it shall be lawful for the builder or any person to do such act, matter, or thing so requisite, but ) I . 7 & 8 VicT. Cap. 84. 17 J upon this condition, that within forty-eight hours after J beginning to execute such work, notice thereof be given J to the surveyor. XIV. And be it enacted, with regard to sucli build- Buildings ings and works, so far as relates to the supervision Generally. thereof. That if in building, pulling down, rebuilding, cutting into or altering any part of any building, or Supervision party-wall or external wall, or chimney-stack or flue, . drains, cesspools, or any work or other thing be done regularities’ contrary to or not conformably with the rules and ^ndothS directions of this Act, then forthwith it shall be the duty of the surveyor and he is hereby required to give forty-eight hours’ notice, according to the form (No. 4.) in the schedule of notices, or to the like effect, to the builder, foreman or principal workman on the premises, to amend any such irregularity which he shall deem to have been committed ; and forthwith, after the expira- tion of such notice, to proceed to inspect the work ; And that, if the work be so far advanced that he cannot To cut into ascertain whether the irregularity has been committed or not, or exists or not, then it shall be lawful for him, and he is hereby empowered to order any work to be cut into, laid open or pulled down, which shall in his opinion prevent his ascertaining whether any such irregularity exists or not ; And that if, within forty- Amendment eight hours, the builder to whom any such notice shall have been given, refuse or fail to amend any irregular work, or if any such builder, when ordered by the sur- veyor, refuse to cut into, lay open or pull down any work which shall in his opinion prevent his ascertaining whether such irregular work exists or not, then, as soon as conveniently shall be, it shall be the duty of the surveyor to give information thereof to the official referees ; And that upon the receipt of such informa- Proceeding tion, it shall be the duty of such official referees, and oSaTreiL they are hereby required to proceed to hear the matter, and if any breach of the rules, regulations and direc- tions of this Act be found to have been committed, or if there appear good reason to suppose any such breach has been committed and is concealed, then it shall be lawful for the official referees, and they are hereby 18 Buildings Generally, Costs. 15 . Special su- pervision of first rate buildings of second class, and of build- ings of third class. Notice to official refe- rees. Survey. Approval. Disapproval. Amendment of defects. The Metropolitan Buildings Act. authorized to direct by their award that such building, party-wall, external wall, chimney-stack, flue or other thing, or such part thereof as they shall deem necessary, shall be amended, removed, cut into, laid open, or pulled down; And that all the costs, charges and expenses of the said work, and of the said application to the official referees, shall be borne by such party or parties as the official referees shall determine. XV. And now, for the purpose of making provision for the supervision of buildings of the first rate of the second or warehouse class, and of all buildings of the third or public-building class, (except the buildings hereinbefore excepted) ; Be it enacted with regard to every such building, so far as relates to the special su- pervision thereof, That when all the walls of any such building shall have been built to their full height, and all the timbers of the floors, roofs and partitions shall liave been fixed, it shall be the duty of the architect or builder, and he is hereby , ... , requiied, to give notice builder, then the owner of the thereof to the official re- building, or other person for ferees, according to the whom or by whose order the form (No. 6.) in the sche- work is done, must give this no- dule of notices, or to the like effect ; And if the official referees be of opinion that such building is subject to the special supervision herein provided, then within seven days after such no- tice it shall be their duty to survey the said building ; And that, if they approve of the same, then within seven days after such survey, to certify such approval under their hands to the architect or builder ; Or that if any part of the walls, timbers, roof, or internal supports appear to such official referees defective, insufficient or insecure, then, within the said seven days after such sur- vey, they are hereby required to give to such architect or builder notice of such parts as shall so appear to them defective, insufficient or insecure, which notice must be in writing; And that, upon the receipt of such notice, it shall be the duty of the said architect or builder, and he is hereby required to amend and strengthen such defective, insufficient or insecure parts ; And that. 7 & 8 VicT. Cap. 84. 19 during or within a period of seven days after notice has been given to the official referees that such works have been amended, or strengthened as aforesaid, it shall be the duty of the official referees, and they are hereby required to inspect the same, or in default thereof the said parts may be covered up ; And that, upon comple- tion of every such building, it shall be the duty of the architect or builder to give fresh notice to the official referees, according to the form (No. 7.) in the schedule of notices, or to the like effect; And that thereupon, or within seven days after such notice, it shall be the duty of the official referees to survey the same ; And that, if upon such survey it shall appear that such building has been built sufficiently strong, and is suffi- ciently set to be safe, then within fourteen days after such survey it shall be their duty and they are hereby required to certify accordingly, which certificate must be under their hands and the seal of office of registrar of metropolitan buildings ; And that, until such certi- ficate shall have been made, or until fourteen days after such survey shall have elapsed without the official referees having given notice in writing that they are not satisfied, it shall not be lawful to use such building for any purpose whatever, without the express authority in writing of the official referees under their hands and the seal of office of the registrar of metropolitan build- ings; And that, if before the certificate of satisfaction shall have been made, or if such further fourteen days as aforesaid shall have elapsed without due notice being given in writing as aforesaid, any such building subject to special supervision shall be used for any purpose, without such express authority in writing, then, on conviction thereof before two justices of the peace, the occupier of such building, or other the person by whom such building shall be 80 used, shall forfeit for such offence a sum not Buildings Generally. Notice of coDipletiou. N ew survey. Certificate. Prohibition of use. Penalty. exceeding: two hundred Under s. 67 of the former act, which contained a similar provision, it was held that the penalty was recoverable only against the master builder, and not against the owner (a) ; but (a) Meymot v. Southgate, 3 Esp. 223. 20 Buildings Generally. Justices to consider cir- cumstances. 16. Special su- pervision of buildings in Schedule (B, Parti.) Survey by official refe- rees. Occasional icspection. Notice of de- liciences. Amendment of defects. Approval by official refe- rees. The Metropolitan Buildings Act. pounds, for every day du- ring- wliicli such building shall be so used, without having obtained such certi- ficateof satisfaction, orsuch express authority as afore- said ; And that, in deter- in the former act, the owner was not alluded to distiuctlyas in this (s. 13), and he would be held liable to the penalty under this section if he ordered the works, and there were no archi- tect or master builder em- ployed. mining the amount of any such penalty, it shall be the duty of the justices, and they are hereby directed to have regard to the size and character of the building and to the nature and extent of danger involved in the use of such building, and to the amount of profit which might be derived from such use thereof. XVI. And be it enacted, with regard to the build- ings comprised in Schedule (B. Part I.) to this Act annexed, so far as relates to the supervision thereof. That before the builder begin to build the same, it shall be the duty of the architect or the builder and he is hereby required to give notice thereof to the official referees, and also, at the same time, to transmit for their inspec- tion the plans, elevations and other drawings which have been made for the same ; And that forthwith thereupon it shall be the duty of the official referees and they are hereby required to proceed to survey the situation of the intended building, with a view to as- certain whether such building can be erected on such situation with due regard to the security of the public ; And that from time to time, during the progress of such building, it shall be the duty of such official referees and they are hereby directed to inspect the same with a view to ascertain the sufficiency thereof; And that if such building or any part thereof appear to such official referees defective, insufficient or insecure, then they are hereby required to give to such architect or builder notice of such parts as shall so appear to them defective, insufficient or insecure, which notice must be in writing ; And that, upon the receipt of such notice, it shall be the duty of the said architect or builder, and he is hereby required to amend and strengthen such de- fective, insufficient or insecure parts; And that during or within a period of seven days after notice has been 7 & 8 VicT. Cap. 84. 21 given to the official referees that such works have been Buildings 5 amended or strengthened as aforesaid, it shall be the Generally, duty of the official referees, and they are hereby re- quired to inspect the same, or in default thereof, the ! said parts may be covered up; And that, upon com- Notice of pletion of every such building, it shall be the duty of the architect or builder to give fresh notice to the offi- , cial referees; And that thereupon, or witliin seven New survey, days after such notice, it shall be the duty of the official referees to survey the same; And that if upon Certificate, such survey it shall appear that such building has been built sufficiently strong, then it shall be their duty to certify accordingly, whiclj certificate must be under their hands and the seal of office of registrar of metro- politan buildings ; And that, until such certificate shall Prohibition ^ have been made, or until fourteen days after such ° survey shall have elapsed without the official referees having given notice in writing that they are not satis- fied, it shall not be lawful to use such building for any purpose whatever, without the express authority in writing of the official referees, under their hands and the seal of office of the registrar of metropolitan build- ings ; And that if, before the certificate of satisfaction Penalty, shall have been made, or if such fourteen days as aforesaid shall have elapsed without due notice in writ- I ing being given as aforesaid, any such building subject I to special supervision shall be used for any purpose, I without such express authority in writing, then, on K conviction thereof before two justices of the peace, the 5 occupier of such building, or other the person by ff whom such building shall be so used, shall forfeit for I such offence a sum not exceeding one hundred pounds, I for every day during which such building shall be so I used without having obtained such certificate of satis- I faction, or such express authority as aforesaid; And Justices to I that, in determining the amount of any such penalty, lumltZcel' I it shall be the duty of the justices, and they are hereby directed to have regard to the nature and extent of danger involved in the use of such building, and to the amount of profit which might be derived from such use thereof. % 22 Buildings Generally. 17 . Entry on premises. Refusal to permit in- spection. Forcible entry. 18 . All buildings not accord- ing to this Act declared a nuisance. The Metroipolitan Buildings Act. XVII. And be it enacted, with regard to buildings and works, so far as relates to the entry thereon for the supervision thereof, That, at all times during the pro- gress of any operations in respect thereof within the meaning of this act, it shall be lawful for the surveyor, and for the official referees, and they are hereby re- spectively authorized to enter upon the premises upon which such operations have been commenced ; And that if at any time whili^t any building is in course of construction, demolition, alteration or re-construction, any person refuse to admit the surveyor, or the official referees authorized under this Act, during the custom- ary working hours, to inspect such building, or any person refuse or neglect to afford such surveyor or official referee every assistance which may be rea- sonably required in and about such inspection, then in every such case, on conviction thereof, the party offending shall forfeit for every such offence a sum not exceeding twenty pounds ; And that if at any time dur- ing such customary working hours the surveyor or the official referees be refused admittance to make inspec- tion of any work, then for that purpose it shall be law- ful for such surveyor or for such official referees, and they are hereby empowered, accompanied by a peace officer, to enter upon the ground, building and pre- mises where the same shall be. XV’^III. And for the purpose of more effectually enforcing the observance of the provisions of this Act, Be it enacted, with regard to any buildings, drains, timber buildings, chimneys and flues, party-walls, party-fence-walls, external walls and projections, and every other part of every building of every class, or rate of any class, which shall be hereafter built, rebuilt, enlarged or altered within the limits of this Act, con- trary to the provisions hereof, so far as relates to the removal thereof. That if the same be not built, rebuilt, enlarged or altered in the manner and of the materials and in every other respect according to, and in con- formity with, the several rules and directions which are in this Act particularly specified; And if any person build or begin to build, or cause the. building or begin- 7 & 8 VicT. Cap. 84. 23 ning to build, or alter or cause to be altered, or use or Buildings i cause to be used any part of any ground or building. Generally. [projection, drain or other thing contrary thereunto; land if, in either of such cases, it so appear by the certi- ficate of the official referees ; then tlie said building, projection, drain or other thing, or such part thereof so irregularly built or begun to be built, or so irregu- larly altered or begun to be altered, or so used, shall be deemed a nuisance ; And that thereupon it shall be Summons the duty of the surveyor, and he is hereby directed to summon the builder before any two justices of the peace; And that if, at the time and place appointed on compulsory such summons, such builder fail to appear, then it shall appearance, be lawful for the said justices, and they are hereby au- thorized to issue a warrant under their hands and seals to compel such builder to appear before such justices or any other two justices : And that thereupon it shall Recogni- be the duty of such builder, ^ and he IS hereby required statute the conviction before the to enter into a recognizance justices must have been within in such sum as the said jus- three calendar months of the tices shall appoint, forabat- building having been completed, ing and taking down the though , hat period had ex- same within such conve- ieing had, yet the building was nient time as the said jus- not rendered legal, but might tices shall respectively ap- still be proceeded against. {Tit- ierton v. Conyers, 5 Taun. 465 ; 1 Marsh. 140.) This clause con- tains no such definite proviso with regard to time. point, or otherwise for a- mending the same accord- ing to such rules and di- rections as are herein con- tained, and also for paying the costs, charges and expenses incurred by the surveyor in laying the infor- mation and obtaining the conviction, including such compensation for the surveyor’s loss of time as the said justices shall think fit ; And that if the party so required imprison- tail to enter into such recognizance, then it shall be lawful for either of such justices or any justice, and they are hereby required to commit such builder to the common gaol of the city, county or liberty where the Dffence shall be committed, there to remain without bail or mainprize until he shall have entered into such 24 Buildings Generally. Removal of buildings de- clared nui- sances. Expenses. 19 . Fifty shil- lings penalty on workmen offending. The Metropolitan Buildings Act. recognizance as aforesaid, or until such irregular build- ing shall have been abated or demolished or otherwise amended, or such nuisance shall be abated or demol- ished by order of such justices respectively, (which order the said justices are hereby empowered to make,) and until the costs, charges and expenses thereof, and of all operations and proceedings in relation thereto, shall have been paid : And further. That if application be made to any two or more justices, then, thereupon, it shall be their duty, and they are hereby empowered to order the surveyor or any other person to abate or demolish such nuisance, and to order the persons authorized by them so to abate or demolish the same, to sell and dispose of the materials thereof, and, out of the moneys arising by such sale, to pay to themselves, and all persons by them employed for such purpose, the reasonable charges for abating or demolishing such nuisance, and also such costs and expenses as aforesaid, and to pay the surplus moneys arising by such sale (if any) to such owner of the building as the official referees shall determine to be entitled thereto ; And that if the moneys arising by such sale be not sufficient to pay such charges, then it shall be the duty of the person entitled to the immediate possession of such building, or the occupier, to make good the deficiency subject to reimbursement as hereinafter provided ; and if he fail, then he shall be liable to the same remedies for the recovery thereof as are by this Act provided concerning the expense of taking down ruinous build- ings, and putting up lioardsfor the safety of passengers. XIX. And be it enacted, with regard to any building or work, so far as relates to the non-observance of the provisions of this Act in that behalf by workmen and others. That if any workman, labourer, servant or other person employed in any building, or in the alteration, fitting up or decoration of any building, wilfully and without the direction, privity or consent, of the person causing such work to be done, do anything in or about such building contrary to the rules and directions of this Act, then upon conviction thereof before any two justices of the peace, upon the oath of one or more • 7 & 8 ViCT. Cap. 84. 25 credible witness or witnesses (which oath the said jus- tices are hereby empowered and required to administer), every such offender shall be liable to forfeit for every such offence a sum not exceeding fifty shillings ; And that if upon or immediately after such conviction, any such forfeiture be not paid, then it shall be the duty of any two justices of the peace to whom application shall be made, to commit the offenders by warrant under the hand and seal of such justices to the common gaol for any term not exceeding one month, at the discretion of such justices. XX. And forasmuch as, from time to time, occasion hath arisen and will hereafter arise to execute the fol- lowing works in relation to adjoining buildings and pre- mises, parted by the same party-wall or party-fence- wall, but belonging to different owners, or occupied by different persons, or to buildings intermixed, belonging to different owners, or occupied by different persons; namely, — The reparation of the party-walls by which such premises shall be parted : The pulling down and rebuilding of such party- walls : The raising of such party-walls : The reparation of party-fence-walls : The rebuilding of such party-fence-walls : The raising of such party-fence-walls : The pulling down of timber partitions which part buildings, the property of different owners, or occupied by different persons, and building in lieu thereof proper party-walls : The pulling down of buildings built over public ways, or having rooms or stories, the property of ■ 'different persons, or occupied by different per- sons, lying intermixed, for the purpose of build- ing proper party-walls or party-arches : And generally the performance of other necessary works incident to the connection of such party-walls or party- fence-walls with the premises adjoining ; It is expedient to make provision, as well for facilitating the execution of such works by any such owner desirous to execute c Buildings Generally. Imprison- ment. Adjoining Properties. 20 . Party JValls. Party Fences. Intermixed Buildmgs. Execution of works. The Metropolitan Buildings Act. the same (who is herein denominated the “ building- owner") ; as for protecting the interests of the owner of the adjoining premises (who is herein denominated Intermixed “ adjoining owner") ; Now for that purpose, Be it 26 Party Walls. Party Fences. A public Building Act is not to be deemed to be superseded or suspended by any local act. When therefore, a Company duly au- thorized by act of parliament had pulled down a house adjoining to that belonging to the plaintiff, and on finding the party-wall deficient, had given the usual notice, &c., it was held that the plaintiff had no right to compen- sation as for an injury sustained under the operation of the local act. — Hex V. Himgerford Mar- Buildings, enacted, with regard to all premises parted by a party wall or party-fence-wall, or parted by timber partitions, and with regard to all inter- mixed properties not so parted, so far as relates to the execution of any such works by any owner of any such premises. That if the adjoining owner shall have consented thereto, or if, without such consent, the required notice of such work shall have been given by or iet Company, 2 n!& M. 340. on the part of the building- owner to such adjoining owner, then, subject to such modification as shall be made by virtue of the provision in that behalf; and subject to the provision for supply- ing the want of consent of the owners; and subject moreover to the respective conditions hereby prescribed, with regard to such works respectively, as well as to the payment of the costs of such works, and to the sanction or to the award of the surveyors or of the official referees, as hereby prescribed in reference thereto, it shall be lawful for every such building-owner and he is hereby authorized or required to execute such works. XXL And be it enacted, with regard to such works, so far as relates to the notice thereof. That unless the adjoining owner consent thereto, it shall not be lawful for the “ building-owner" to execute such works, until he have given notice there- of to such “adjoining With respect to this notice, it owner;" And every such is not necessary where there are notice, with regard to the interme- pulling down; rebuilding or repairing of party-walls on the receiver of the rack-rent — 21 . Consent of, or notice to, adjoining owner. 7 & 8 VicT. Cap. 84. 27 or party-fence-walls, must that is on the immediate land- be given three months, at lord of the occupier-will be suf- ,v f , V ^ ,1 1 • ficient (s. 112). Andtheoccu- the least, before the work is pjgj.jg moreover bound to furnish to be commenced ; And the name and residence of such every such notice, with re- landlord, when required so to gard to the pulling down do (s. 112). and rebuilding intermixed walls and timber partitions, must be given three months, at the least, before such work is to be commenced ; And every such notice must be in the form or to the effect of the notice (No. 8.) for that purpose contained in the schedule of notices hereunto annexed. XXII. And be it enacted, with regard to every such work, so far as relates to the modification thereof, in order to render it suitable to the premises of the ad- joining owner or his tenant. That if the adjoining owner, at any time within two months after the receipt of the said notice from the building-owner, give notice of his desire that any modification be made in the work so as to render it suitable to his premises, according to the form (No. 18.) in the schedule of notices, or to the like effect, then, within seven days after the receipt of such notice, it shall be the duty of the building-owner, and he is hereby required, to signify his consent to, or dis- sent from, such modification or delay ; And that if the building-owner dissent from or do not within such seven days signify his consent to such modification, then it shall be lawful for the adjoining owner, and he is hereby entitled, to require the building-owner not to commence the work until the official referees shall have determined thereon ; And that if within seven days thereafter ap- plication be made in writing to the official referees, ac- cording to the form (No. 19.) in the schedule of notices, or to the like effect, and notice thereof be given to the building-owner, according to the other form (No. 20.), then, within ten days after such application, it shall be the duty of the official referees to signify their decision thereon, and it shall be the duty of the building-owner not to commence the work till the decision of such official referees shall have been given ; And that if, within the period of .three months from the date of the c 2 Party Walls. Party Fences. Intermixed Buildings. 22 . Modification of work to suit adjoin- ing owner. Modification of opera- tions. Application to official referees. Authority to build. 28 Party Walls. Party Fences. Intermixed Buildings. 23. Delay of work to suit adjoining owner. Delay of operations. Application to official referees. Authority build. The Metropolitan Buildings Act. 1 first notice, such adjoining owner do not make any | objection or any requisition in conformity with this t enactment, then, subject to the provisions of this Act with regard to such works, it shall be lawful for the building-owner, and he is hereby authorized to proceed ’ to execute the same. XXIII. And be it enacted, with regard to every such ’ work, so far as relates to the modification thereof, in ' order to render it suitable to the premises or to the i; convenience of the adjoining owner or his tenant, That ! if the adjoining owner at any time within three months ' after the receipt of the said notice' from the building- owner, give notice of his desire that the work be de- layed, so as to cause it to be executed at a more season- able or a more convenient time in reference to the business, or to the family or domestic arrangements of such adjoining owner or his tenants, according to the form (No. 18.) in the schedule of notices, or to the like effect ; then, within seven days after the receipt of the notice thereof, it shall be the duty of the building- owner, and he is hereby required to signify his consent to, or dissent from, such modification or delay ; And that if the building-owner do not within such seven days signify his consent to such modification or delay, then it shall be lawful for the adjoining owner, and he is hereby entitled, to require the building-owner to ! delay the work until the official referees shall have de- | termined thereon ; And that if within seven days there- 1 after application be made in writing to the official referees, according to the form (No. 19.) in the schedule | of notices, or to the like effect, and notice thereof be given to the building-owner, according to the other | form (No. 20.), then within ten days after such appli- cation it shall be the duty of the official referees to sig- 1 nify their decision thereon, and it shall be the duty of the building-owner to delay the same till the decision j i of such official referees shall have been given ; And that : if, within the period of three months from the date of | the first notice, such adjoining owner do not make any objection or any requisition in conformity with this 1 enactment, then, subject to the provisions of this Act ' 7 & 8 VicT. Cap. 84. 29 with regard to such works, it shall be lawful for the Party building-owner and he is hereby authorized to proceed Walls. to execute the same. Fewces XXIV. And be it enacted, with regard to any such intermixed works hereby authorized to be done in relation to party- Buildings. walls, party-arches, party-fence-walls, or other such — structures, belonging to the owners of adjoining build- supplying inffs or parting adjoining premises, so far as relates to wantofcon- supplying the want of consent of the adjoining owners, joining own- That if the adjoining premises be unoccupied, or if the owner thereof cannot be found, or if the owner, al- though found, cannot, by reason of legal disability or otherwise, consent to the work, or if the owner will not consent thereto, or if differences arise amongst the par- ties concerned, then the notice required to be given in respect of such work must be served both on the sur- veyor and on the official referees, in addition to such other parties entitled to notice under this Act upon whom such notice can be served, which must be accord- ing to the form (No. 9.) in the schedule of notices, or to the like effect ; And that forthwith, on the receipt of Notice of such notice, it shall be the duty of the surveyor and he by^siuve°yor. is hereby required to give notice to the parties by whom such work is to be executed, and to any one or more surveyors or other agents by them appointed, as to the day and hour when he will view the premises, according to the form (No. 10.) in the schedule of notices, or to the like effect ; and at such time it shall be the duty of the surveyor of the district and he is hereby authorized to proceed to inspect such premises accordingly, and to certify to the official referees. First, Whether such work ought to be done or not ; and Secondly, If the same ought to be done, whether it ought to be done in the proposed manner ; and 'Thirdly, The site whereon the party-wall should be built; and with regard to intermixed buildings, what party-arches may be necessary over or under any rooms of such buildings so intended to be rebuilt ; and 30 Party Walls. Party Fences. Intermixed Buildings. Notice to parties. ConSruiation by official referees. Proceedings on appeal against cer- tificate. Notice by official re- ferees. Survey. The Metropolitan Buildings Act. Fourthly, The quantity of the soil or ground or other parts of the premises (if any) necessaiy to be laid to or' taken from the house of the person desirous to rebuild, to the house of the peison permitting him to erect a party-wall or party- arch ; and Fifthly, The compensation (if any) which should be made and paid by either the building-owner, or the adjoining The “ building-owner” is still owner, to the other bound to pay all expenses, even in lieu of the lessen- although the consent of the ad- ing either of the said joining owner is obtained by buildings by such party-wall or party-arch, or as a satisfaction for such other injury (if any) as shall be done or occasioned thereby to any of the said parties ; And that, upon the receipt of such certificate, it shall be the duty of the official referees, and they are hereby required, to cause notice thereof to be given to the par- ties or to such of them as are known ; And that if within seven days after such notice to the parties, the. certificate be not appealed against, and if the official referees be of opinion that the work is proper to be done, and the compensation is fair, then it shall be lawful for the official referees to confirm such certificate, and to authorize the building-owner to proceed with the works, as if the consent of the adjoining owner had been obtained ; And that if any party concerned shall appeal against the certificate of the surveyor as to the work to be done, or as to the compensation, or as to any other matter referred to in such certificate, in pur- suance of the above provisions, then it shall be the duty of the official referees, and they are hereby required to appoint one of their number to survey the building in question ; And that for that purpose it shall be the duty of the official referee so appointed, and he is hereby required to give notice to the parties, and to any one or more surveyors or other agents by them ap- pointed, as to the time when he will view the premises; And that at such time it shall be the duty of such re- feree, and he is hereby authorized to view such premises 7 & 8 ViCT. Cap. 84. ai accordingly, and to inquire into the matters appealed against, and to certify to the official referees his opinion thereon ; And that, upon such certificate being made, it shall be lawful for the official referees to make their award, thereby either confirming, or reversing or modi- fying, as to them the case may seem to require, the certificate of the surveyor, and appointing by whom and in what proportions the expenses of the surveys and of the reports thereon are to be paid ; and such award shall be final and conclusive ; And with regard to any works by such award authorized, so far as relates to the proceedings of the building-owner. That if, upon the making of the award, the periods of the notices by this Act prescribed with regard to works of that nature have elapsed, then immediately upon the making of the award, but if such periods have not elapsed, then as soon after the making of the award as such periods shall have elapsed, it shall be lawful for the building- owner, his agents, servants and workmen, to proceed to execute the works. XXV. And be it enacted, with regard to any party-' wall, party-arch, or external wall used wholly or in part as a party-fence-wall, so far as relates to the reparation and rebuilding thereof, at the joint expense of the owners of the buildings parted thereby. That if such party structure be so defective or so far out of repair as to render it necessary to pull down and rebuild the same, or any part thereof, „ ^ , .1 J t • • But if the wall be not so rum- then on notice being given iaimediate re- by the owner of one of tlie pair or rebuilding, and if the buildings to the adjoining official referees do not certify to owner, according to the form *bat effect, the expense must be, (No. 8.) in the schedule of W altogether by the prtj re- notices, or to the like effect, it shall be lawful for the building-owner to require a survey, certificate and award authorizing the execution of Such reparation or rebuilding, according to the pro- visions hereinbefore contained in that behalf. XXVI. And be it enacted, with regard to sound party-walls, so far as relates to the rebuilding thereof, at the expense of the building-owner. That if the owner Party Walls. Party Fences. Intermixed Buildings. Award. Works authorized. 25. Reparation and rebuild- ing at joint expense. 26. Rebuilding of party- walls. 32 Party- Walls. Party Fences. Intermixed Buildings. 27. Rebuilding a party-wall. Building of an external wall against a party-wall. 28. amage arising from erection of external wall against a party, wall. The Metropolitan Buildings Act. of one of the buildings desire to rebuild such party- wall, then, on giving to the adjoining owner the required notice of three months, according to the form (No. 14.) in the schedule of notices, or to the like effect, it shall be lawful for such building-owner, and he is hereby entitled to pull down and rebuild such party-wall ; but upon condition that he do reinstate and make good all the internal finishings and decorations of the adjoining pre- mises, and pay all the costs and charges thereof, and also all the expenses incidental to the execution of the work, including therein the fees and expenses of the survey, and the fees of the surveyors and any fees in respect of any services performed by the official re- ferees, and also such reasonable compensation as to the said official referees may seem proper for any loss which the adjoining owner shall have incurred by reason of such work. XXVII. And be it enacted, wu'th regard to any party- wall so far as the rebuilding thereof, That if the owner of one of the buildings parted by such party-wall re- build such building of a higher rate, and do not pull down such party-wall and build a proper wall in lieu thereof, then it shall be his duty, and he is hereby required, to build up an external wall against such party-wall. XXVIII. And be it enacted, with regard to an exter- nal wall built against a party-wall, so far as relates to the operations incident thereto, and to the making good any damage occasioned thereby, That if it be necessary to excavate or dig out the ground against the wall of any adjoining building, for the purpose of erecting a wall thereon, or for any other purpose, then it shall be lawful for the building-owner and he is hereby entitled so to do ; but upon condition that the said building- owner do, at his own costs, shore up and underpin such If the “ adjoining owner,” or wall, or such part thereof, occupier, employ workmen to to its full thickness, and to shore up his own house, it would f , appear that he does so at his own ot such exca- J.'isk and expense, (a) unless he good sound can prove that the shoring, &c., the full depth vation, with (a) Robinson v. Lewis, 10 East, 227. 7 & 8 VicT. Cap. 84. 33 of the building-owner be insuf- Party ficient, and this it would seem Walls. can only be done by reference to Party the district surveyor, or the Fences. official referees. But the build- Intermixed ing-owner is clearly liable for all Buildings. damage arising from improper shoring, &c., on his part. And Cutting into further, it would appear that the footings and compensation for such damages would go to the lessee under co- venant to repair, or to the lessor in default of any covenant ; but in either case, such compensa- tion must be expended on the purpose for which it is awarded. stock-bricks and tiles or slates bedded in cement, or with other proper and suf- ficient materials; such un- derpinning to be done in a workmanlike and substan- tial manner; And that if, for the purpose of erecting such external wall, it be necessary to cut away part of thefootingsof such party- wall on the side next to the wall so to be built, and any part of the chim- ney-breasts and chimney-shafts belonging to the build- ing about to be rebuilt, as shall project beyond the perpendicular face of such party-wall, in the lowest floor thereof, then, on giving notice of such intention in writing to the owner of the adjoining building, at least one month before commencing operations, according to the form (No. 15.) in the schedule of notices, or to the like effect ; and on the expiration of such notice, it shall be lawful for the building-owner and he is hereby authorized to cut away such portion of the footings, breasts and chimney-shafts aforesaid ; but so that the same be done, and the brick-work where cut be again made good in cement, under the superintendence and to the satisfaction of the surveyor. XXIX. Provided always, and be it enacted, with regard to such party- wall, so far as relates to the making good of any such damage. That if it be so damaged and injured by such cutting away, as in the opinion of the adjoining owner or occupier to be ruin- ous or dangerous, then, upon application for that pur- pose, it shall be the duty of the surveyor, and he is hereby required to survey such wall ; And if upon the survey thereof it be found ruinous or dangerous, then to condemn it; And that, thereupon, it shall be the duty of the building-owner to pull down and rebuild such party- wall; And that if, in the opinion of the sur- veyor or of the official referees, such damage or injury c 3 29 . Making good such da- mage. Survey. Damage from care- lessness. 34 Party Walls. Party Fences. Intermixed Buildings. Rebuilding. 30 . Rebuilding of sound party-walls. Reference to official re- ferees. 31 . Raising of future build- ngs. The Metropolitan Buildings Act. shall have been occasioned by want of due care on the part of the building-owner, then it shall be the duty of such building-owner and he is hereby required to pull down and rebuild such party-wall; and that at his own costs and charges, including therein all the costs and expenses incident to such survey, and the pulling down and rebuilding of such party-wall, and the reinstating and making good all the internal finishings and deco- rations damaged thereby ; And that if the owner of the building to be rebuilt do not proceed with all due de- spatch to pull down and rebuild such party-wall, and to reinstate and make good all the internal finishings and decorations of the adjoining premises, and to pay the costs and charges and expenses of the survey, then it shall be lawful for the adjoining owner so to do, and he is hereby entitled to recover all the costs and ex- penses in respect thereof from such owner, his heirs, executors, administrators or assigns. XXX. And be it enacted, with regard to any sound party-wall against which an external wall shall have been built, and which shall have been suffered to re- main so far as relates to the rebuilding thereof. That if, while such party- wall continues sound, the adjoining building be pulled down or rebuilt, and such party- wall be pulled down, then the owner of such adjoining building shall not be entitled to more than his just pro- portion of the materials thereof, nor to more than his just proportion of the ground on which such party-wall was built, nor shall he build on more than his just pro- portion of the said ground, unless he shall have agreed with and satisfied the owner of the building so pre- viously rebuilt for his half thereof; And that if the said owners cannot agree concerning the division of such materials, or of such ground, or of the building thereon, or concerning the reimbursement of the party first rebuilding as aforesaid, then the price and all matters in difference, including the sale and purchase of the ground in question, shall be settled by a refer- ence to the official referees, whose award shall be final. XXXI. And be it enacted, with regard to every building hereafter built, so far as relates to the raising 7 & 8 VicT. Qap. 84. 35 thereof, That it shall be lawful to raise any building, but so that, nevertheless, the party and external walls and Walla. chimneys thereof, when so raised, be of the materials Pa'rty and of the several heights and thicknesses hereinbefore described for party and external walls and chimneys of Buildings the rate such building shall be of when so raised ; And — with regard to buildings already built, so far as relates to the raising thereof, that, although the walls of such buildings be not of the thicknesses prescribed by this Act, if, in the opinion of the surveyor, such walls be sufficiently secure to allow of the raising thereof, then it shall be lawful to raise any such building already built to an additional height, not exceeding ten feet ; And with regard to any building adjoining one which chimney of shall be raised, so far as relates to the raising of the iJujJdiUgf. chimneys thereof, that if any building be raised, it shall be the duty of the owner of such building, and he is hereby required to build up, at his own expense, the party-walls between his own and any adjoining build- ing, and all flues and chimney-stacks belonging thereto; And with regard to any building raised, so far as re- Use of lates to the use thereof by the adjoining owner, that if[ngs!^ at any time the owner of any such adjoining building make use of any portion of the part raised of such party-wall by building against it, or otherwise it shall be lawful for the owner of the premises so first raised, to claim, and he is hereby entitled to recover the cost of a proportionate part of the portion which shall be so used, together with the cost of such parts of the chim- ney-stacks as belong thereto. XXXII. And be it enacted, with regard to party- 32 . fence-walls, by which term is to be understood any i^epairing boundary-wall parting the grounds belonging to diner- ing of party- ent owners, or occupied by different persons, so far as relates to the reparation and rebuilding and raising thereof. That if the owner of any of the premises parted thereby give one month’s notice of his intention to the adjoining owner to repair, pull down and rebuild the same, it shall be lawful for him so to do ; and if the wall be below the height of nine feet from the ground on either side, then either to raise it to that height, or c 4 36 Tlie Metropolitan Buildvigs Act. Reimburse- ment of expense of operations. Party to pull it down and to rebuild it to that height ; but Walls. ypQfj condition that he do pay all the expenses thereof; ^Tr!cee ^ building be to be erected against such 7n/erm7'.retZP^rl^y"^Gnce-wall, and such wall be not conformable Buildings, to the requisites prescribed for a proper party-wall Defid^t ^ building of that class and rate, then it shall party-fence- be lawful for the building-owner, and he is hereby entitled to pull down such party-fence-wall ; but upon condition that he do pay all the expenses thereof ; and also that he do make good every damage which shall accrue to such adjoining premises by such rebuilding : Provided always, with regard to the expense of so pulling down such party-fence-wall, and rebuilding the same, That if thereafter the adjoining owner use such party-fence- wall for any purpose to which, if it had not been pulled down and rebuilt, it would not have been applicable, then to such extent as such adjoining owner shall so use such wall, the building-owner shall be entitled to be reimbursed the expenses of so pulling Limitation down and rebuilding such wall: Provided also, with screerf wauL to any such party-fence-wall, so far as relates to the limitation of the height thereof. That if any party desire to raise such wall so as to screen from view any offensive object or neighbourhood, then on application to the official referees, it shall be lawful for them to authorize such work, but not so as to obstruct the free circulation of the air, or to injure the property adjoin- ing to or in the neighbourhood of such wall. 33. XXXIII. Andbeitenact- S'party to tile party timber par- timber partitions of existing titions. buildings belonging to dif- ferent owners, so far as re- lates to the pulling down thereof, and any wall under or overthe same, That if one of the buildings be rebuilt, or if one of the fronts of any such building be taken down to the height of one story, or for a space equal That is to say, of existing buildings subject to the provi- sions of leases granted before the coming into operation of this act. The responsibilities of the various parties to leases granted subsequently to the 1st January, 1845, are* clearly set forth in sect. xlix. p. 57. It is, therefore, important to con- sider here, how owners in va- rious degrees will be bound to contribute their several pro- 7 & 8 ViCT. Cap. ‘84. 37 to one-fourth of such front from the level of the second floor upwards, then, with- out the consent of the ad- joining owner, but upon giving the requisite notice, according to the forms, (Nos. 1 1, 12, 1 3.) in the schedule of notices, or to the like effect, it shall be the duty of the building- owner, and he is hereby re- quired, to pull down such timber partitions, and the walls under or over the same, and in lieu thereof to build a proper party-wall; and tnat at the expense ot party-wall under the statute, the owners of all the pre- though the lessee has improved mises parted thereby. the house demised (^). In like manner a lessee for twenty-one years at a peppercorn rent for the first half year, and a rack-rent for the rest of the term, who, by agreement, was to put the premises in repair, and covenanted to pay the land tax, and all other taxes, rates, assessments, and impositions, having assigned his term for a small sum in gross, was held not to be liable to pay the expense of a party-wall, either by the provi- sions of the statute, for he was not the owner of an improved rent, or by the covenant ; therefore that charge must in such case be borne by the original landlord (c). Although, if a large sum (as 300/.) were paid to an original lessee for a lease, he would be liable {d.) This enactment was intended to throw that burden on persons to whom long leases had been granted, with a view to an improve- ment of the estate, and who afterwards underlet at a considerable increase of rent (e). The assignee of the lessee of premises, at a fixed rent, which he (the assignee) considerably improved, and thereby rendered of greater annual value, is not the owner of the improved rent within the statute, so as to render him liable to expenses of party- (a) Peck V. Wood, 5 T. R. 130. \b) Beardmore v. Foj?, 8 T. R. 214. (c) Southall V. Ledbetter, 3 T. R. 458. \d) Stuart v. Smith, 2 Marsh, 435 ; 7 Taun. 158 ; Holt, 321. (e) Southall v. Ledbetter, sup. Ashurst, J. portions, or how they will be Party absolved. The law in this re- Walls. spect is clearly laid down in Party many cases arising out of the Fences. late act, and these may by ana- Intermixed logy be safely adopted as prece- Buildings. dents under the present statute. The owner of the improved rent, not of the ground rent, is liable to pay the expenses of a party-wall (a). But where there is no improved rent, or, in other words, no transfer, the freeholder building on his own ground, then he becomes the “ owner" to the full extent and meaning of this clause, and being lessor of the house at a rack-rent (there be- ing no other person entitled to any kind of rent) is liable to fonfrihiitp PYi->pnspe nf a The Metropolitan Buildings Act, walls (/). But if the lessee of a house at a rack-rent, underlets it at an advanced rent, he is liable to contribute to the expenses of a party-wall built under the statute ; nor is the operation of the statute at all varied by any covenants to repair entered into Intermixed between the landlord and his tenant {g). Buildings. ^ tenant re-building a house without a lease, or agreement for a lease, and making use of the adjoining party-wall, is not the party liable to pay for the same as owner of the improved rent, nor can he be sued as such, even although he afterwards obtain in consideration of the re-building, a beneficial lease at a low ground rent dated previously to such re-building (A). A. having taken a lease of land from B., entered into an agree- ment with C., that he should be employed by him (-4.), to build certain houses, he (C.), taking such houses again from A. at a rent of 201. per annum : A. was held liable to contribute to the party-wall to which the houses were attached (i). A lessee covenanting to pay a reasonable proportion of support- ing and repairing all party-walls, &c., and to pay all taxes, duties, assessments, and impositions, parliamentary and parochial, is liable under this statute (^'). An executor or administrator may be liable under this statute as the owner of the improved rent, even though he has no other assets than the improved rent (A). And, therefore, in an action to recover expenses incurred under the Act, a plea, that the de- fendant is only entitled to the improved rent as executor, and that bonds are outstanding, and plene administravit proeter a sum insufficient to pay the demand, was held bad on demurrer (^). The owner of an improved rent was not entitled to compensation for the use of a party-wall under 14 Geo. III. Therefore, where a tenant of premises having built a party-wall thereon, let a por- tion of them upon a building agreement for 50/. a year, and the sub-tenant built a house on his part of the ground, and in so doing made use of the party- wall, — the agreement containing no. stipulation in case of this being done, — and eventually underlet the house, when finished, at a rent exceeding 50/. Held, that the original tenant was not entitled to compensation from his lessee, under the statute, for the use of the party-wall, since he himself, and not the sub-tenant, was the owner of the improved rent within that clause (m). W here a very old house is demised, with the usual covenants to repair, it is not meant that the house should be restored in an (/) Lamh v. Hemans, 2 B. & A. 467. {g) Songster v. Birkhead, 1 B. & P. 303. (A) Taylor v. Reed, 6 Taun. 249. (i) Collins V. Wilson, 4 Bing. 551 ; 1 M. & P. 454. 0) Barrett v. Bedford (Duke), 8 T. R. 602. (k) Thackar v. Wilson, 4 N. & M. 659 ; 3 Ad. & E. 142. \l) Wilcox V. Newman, 1 Chit. 132. (m) Williams v. Pocklington, 2 B. & Ad. 886. 38 Party Walls. Party Fences. 7 & 8 VicT. Cap. *34. 39 improved state (n). Therefore, under the compulsory clauses of this Party Act, such a tenant would not be held liable for the expenses of Walls. a party-wall, as that is deemed an improvement by the Act. If Party the plaintiff bring an action on a general covenant to repair Fences. a messuage, and assign a breach thereof, whereby he was put to Intermixed expense, it is sufficient for a tenant to plead performance of all. Buildings. except as to the repairs of a party-wall, and that these repairs were rendered necessary by and were done under the statute, and moreover did not become necessary by the defendant’s default, and that the defendant was not the owner of the improved rent ; and if the plaintiff is possessed of any facts to charge the de- fendant with a proportion of the repairs, he ought to reply them (o). Where A., a builder, proposed to B., the occupier of an ad- joining house, to build a party-wall, and stated the expense ; B. answered, “ Very well, I expect to pay what is right and fair,’' and the wall was built : — Held, that A. was entitled to recover from Z?., his share of the expense, without reference to the sta- tute {p). Probably, under the statute, had it been necessary to have had recourse to it, he would not have been able to recover, from a neglect of the required preliminaries. A written consent of the owner under this Act w’ill be the safest, both on account of the certainty of such a document and its facility of proof. XXXIV. And be it enacted, with regard to build- 34. ings built over public ways, or having rooms or stories, down"niter- the property of different persons, lying intermixed (ex- mixed buud- cept inns of court hereinafter provided for), so far as relates to the pulling down and laying the parts thereof to each other, That if a party-wall or party-arch can- not be built without pulling down such buildings, and so laying parts. thereof to each other, and if, in default of the consent of all proper parties, the official referees authorize such works, then it shall be lawful for the owner of either of the said buildings to execute the same ; but so that the party-walls or party-arches be conformable to the provisions of this Act, and the direc- tions of the said official referees in their award made in that behalf. XXXV. And be it enacted, with regard to the 35. rooms or chambers in the inns of court, (that is to sav) in Serjeants Inn, Chancery Lane, or in any of the chambers, four inns of court, or in any of the inns of chancery, or (w) Gutteridge v. Munyard, 7 C. & P. 129 ; 1 M. & Rob. 334. (o) Moore v. Clark, 5 Taun. 90. {p) Stuart V. Smith, 2 Marsh. 435 ; 7 Taun. 158 ; Holt, 321. The Metropolitan Buildings Act, any other inns set apart for the study or practice of the law, and with regard to other buildings divided into rooms or chambers, offices or counting-houses, let out Intermixed he let in separate suites or sets, so far as relates Buildings, to the building of party-walls. That the walls or divi- — sions between the several rooms and chambers in such inns, or such buildings, belonging to and communicat- ing with each separate and distinct staircase, shall be deemed to be party-walls within the meaning of this Act and as such must be built in conformity with the regulations and clauses herein - contained relating to party-walls. 36. XXXVI. And for the purpose of facilitating and re- ofentryon gulatiug the execution of any works authorized by eS'works award in pursuance thereof, in re- ’ spect of any party-wall or party-arch, parting the buildings or grounds belonging to different owners, or in the occupation of different persons, or in respect of in- termixed buildings ; Be it enacted, with regard to any such works, so far as relates to the power to enter the adjoining premises in order to execute the same. That if such work have been duly authorized, either by the consent of the parties competent to give such consent, or by the award or certificate of the official referees, then, at any time between the hours of six in the morn- ing and seven in the afternoon (Sundays excepted), it shall be lawful for the building-owner, or any other person acting in his behalf, accompanied by a consta- ble or other officer of the peace, and they are hereby respectively empowered, to enter on the premises of the adjoining owner, so far as may be necessary for doo?s'and executing such work ; And that if the outer-door of removal of such building be shut, and being thereunto required, goods, &c. the person therein refuse to open the same, or if such building be empty and unoccupied, then it shall be lawful to break open such outer-door ; and if any fixtures, goods, furniture or other thing obstruct the building of such intended party-wall or party-arch, or the pulling down any wall, partition or other thing ne- cessary to be pulled down and removed in order to the building such intended party-wall or party-arch, then 40 Party Walls. Party 7 & 8 VicT. Cap. 84. 41 to remove such fixtures, goods, furniture and things to some other part of the same premises, or if there be no room on the premises sufficient for that purpose, to re- move them to some other place of safe custody ; And that from and after such entry, and at all usual times of working, it shall be lawful for the builder employed to erect such intended party-wall or party-arch, and for his servants and all others employed by him, to enter into and upon the premises, and abide therein the usual times of working, as well for the shoring up of the said building so broken into and entered upon, and for taking down and removing any party-wall, partition, wainscot or other thing necessary to be taken down and removed for the purpose aforesaid, as to build such intended party-wall or party-arch ; and that if in any manner any such owner or other person hinder or ob- struct any workman employed for any of the purposes aforesaid, or wilfully damage or injure the said works, then every such person so offending shall forfeit for every such offence a sum not exceeding ten pounds. XXXVII. And now, for the purpose of further pro- tecting the interests of adjoining owners, be it enacted, with regard to external walls adjoining the ground or building of another owner, so far as relates to the mak- ing of openings therein, That if, without the consent in writing of the owner of such ground or building, any opening be made in any such wall, then it shall be lawful for such owner, and he is hereby entitled, to require the owner of the premises in which such open- ing shall be made to stop up the same with brick or stone-work, as the case may be, according to the form (No. .5.) in the schedule of notices, or to the like ef- fect ; And that if, within one month after such no- tice, such stoppage be not effected, then it shall be lawful for such owner, and he is hereby entitled, either Party Walls. Party Fences. Intermixed Buildings. Continuance of entry. Penalty for hindrance. 37. Stopping of openings in external walls abut- ting on other premises. By the 2 &3 Will. IV. c. 71, s. 3, it is enacted, “That when the access and use of light to and for any dwelling-house, workshop, or other building shall have been actually en- joyed therewith, for the full period of twenty years without interruption, the right thereto shall be deemed absolute and indefeasible, any local usage or custom to the contrary notwith- standing, unless it shall appear that the same was enjoyed by Stoppage thereof. 42 - Party Walls, Party Fences. Intermixed Buildings. Costs of stopping-up. Certificate ol official re- ferees. “Recovery of costs. 38 . Building of party-walls next vacant ground. The Metropolitan Buildings Act. by himself or his workmen, with tools, implements and materials, to cause such openings so to be stopped, and he is also hereby en- titled to be repaid the costs thereof; 7\nd with regard to such costs, so far as re- lates to the adjustment thereof, That if such owner refuse to make payment thereof, or if there be any dispute as to the amount thereof, then, on applica- tion for the purpose to the official referees, by either of the parties concerned, it shall be lawful for the per- some consent or agreement ex- pressly made or given for that purpose by deed or writing.'^ By the next section this period of twenty years “ shall be deem- ed and taken to be the period next before some suit or action wherein the claim or matter to which such period may relate shall have been or shall be brought into question, and that no act or other matter shall be deemed to be an interruption, within the meaning of this sta- tute, unless the same shall have been, or shall be submitted to, or acquiesced in, for one year after the party interrupted shall have had, or shall have notice thereof, and of the person mak- ing or authorizing the same to be made." son by whom they have been incurred, and he is hereby entitled, to refer the matter of such dispute to the official referees, and to have their determination thereon ; And that it shall be the duty of such official referees to give to the applicant a certificate in relation thereto ; And that if any party liable to pay any sum of money under such certificate fail to do so, then it shall be lawful for the party en- titled to such costs to recover the same, in the manner hereinafter provided for the recovery of the costs, charges, and expenses of executing any works in pur- suance of this Act. XXXVIII. And be it enacted, with regard to walls, so far as relates to the building thereof on vacant ground at the line of junction of premises belonging to different owners, or in dif- ferent occupations. That one month before theowner of any piece of vacant ground, or ground not hi- therto built upon, shall build any building adjoin- ing to another piece of If two persons have a party- wall one half of the thickness of which stands on the land of each, they are not therefore tenants in common of the wall or of the land on which it stands, although the wall was erected at thejoint expense of the two proprietors. The property in a wall erected 7 & 8’ ViCT. Cap. 84. 43 vacant ground, or ground at a joint expense follows the not hitherto built upon, or property of the land whereon it , , r. ,1 u stands, and if one proprietor build a fence-wall for such ,, piece of ground, it shall be party-wall, and the other pulls his duty, and he is 'hereby down the addition, the first may required to give to the maintain trespass for pulling owner or occupier of such ?r"v,?r“r‘;^ ‘ j. . . ^ j the hall or the wall which was adjoining vacant ground, a erected on the plaintiff's soil. notice, which must be in {Mattsv. Hawkins, bTai\m.20.) writing, and must set forth In declaring in such an action, his desire to build a party- desirable to remember that wall or party-fence-wa 1, and describe the thick- they are in law two walls ; and nesses and dimensions of if the half wall, in respect of such desired party-wall or which the plaintiff seeks to re- party-fence- wall, according “J"- described by abuttals ^ 1 r. \ • which are appropriate only to to the form (No. 16.) in the outer wall hil action 4st the schedule of notices, or ML—Murly v. McDermott, 3 to the like effect ; And that N. & P. 356 ; S'. (7. 8 A. & E. if, within such period of one month, such adjoining owner shall signify his consent in writing, then the same must be built partly on the ground of one of the said owners or occupiers, and partly on the ground of the other owner, and such last-mentioned part is to be paid for as is hereinafter directed by such other owner or occupier; but if he do not signify such consent, then it shall be the duty of the building-owner to build an ex- ternal wall for such build- „ ing, and fence-wall for such ^e made into party-walls ground, entirely upon his without the consent of the first own ground, except as to builder. Nor can the adjoin- the footings of any such ing owner join on to, nor in any ° manner use these external walls ’ without the consent of the first builder ; and even tendering compensation to him for their use, according to the provisions of the late act, will not avail under this, as the first builder is not bound to accept of such com- pensation, but by this section can oblige the second builder to build his own external and independent wall wholly on his own ground. Party Walls. Party Fences. Intermixed Buildings. Consent of adjoining owner. XXXIX. And be it enacted, with regard to any new Building of 44 Party Walls. Party Fences. Intermixed Buildings. chimney- breasts, &c., in new party- wall for ad- joining owner. Instructions by adjoining owner. Reimburse- ment of ex- penses. Ruinous Buildings. 40 . Repairing and rebuild- ing. Application to official re- ferees. The Metropolitan Buildings Act. party-wall, built on the line of junction of premises belonging to different owners, so far as relates to the providing of chimney-breasts and other accommodation for the adjoining owner, That when the owner of any piece of vacant ground shall have obtained the consent of the adjoining owner to build a party-wall on the line of junction of their respective premises, then, ten days at the least before beginning to build such party-wall, it shall be the duty of the building-owner to give the adjoining owner notice thereof, according to the form (No. 16.) in the schedule of notices, or to the like effect ; And that if in due time the adjoining owner shall give instructions in writing, or by a plan and elevations or other sufficient drawings, then it shall be the duty of the building-owner to construct, if practi- cable, such and so many chimney-jambs, breasts and flues of chimneys, in all such parts of such party-wall as shall be by such instructions required, and to leave such recesses in every such wall as may be so required; but so that they be conformable with the directions of this Act concerning party-walls and chimneys; And that thereupon it shall be lawful for the building-owner to claim, and he is hereby entitled to recover from the adjoining owner all the expenses of constructing such chimney-jambs, breasts and flues of chimneys and re- cesses, as provided by this Act in that behalf. XL. And whereas buildings wdthin the limits of this Act are often, either from litigated titles thereto, or from the obstinacy, neglect or poverty of the owners thereof, or of the parties interested therein, or from other causes, in so ruinous a condition that passengers are endangered thereby ; Now for the purpose of making provision in that behalf; Be it enacted, with regard to ruinous buildings, or parts of buildings, so far as re- lates to repairing or pulling down the same, that, upon receiving information of any building being in a ruinous and dangerous condition, it shall be the duty of the surveyor, and of the overseers for the time being of the parish or place in which the same shall be, and they are hereby respectively required, to apply forthwith to the official referees to authorize a survey to be made 7 & 8 VicT. Cap. 84. 45 thereof; And that, thereupon, it shall be lawful for the Ruinous official referees to direct the surveyor to make such Buildings, survey ; And that, thereupon, it shall be the duty of surv^ such surveyor to act in all respects as in the case of a survey of party-walls ; And that, upon the receipt of Notice to the certificate of the surveyor, it shall be lawful for the ^c^^^d^to official referees, and they are hereby required to cause overseers, a copy thereof to be transmitted, if the premises be within the city of London, then to the court of lord mayor and aldermen, and if they be elsewhere, then to the overseers of the poor of the parish or place in which such premises shall be; And that, thereupon, it shall Shoring and be the duty of such mayor and court of aldermen and hoa?ds”and overseers to cause, with all convenient speed, any such notice to ruinous building to be securely shored, or a proper and sufficient hoard to be put up for the safety of all passengers ; and to cause notice in writing to be given to the owner of such building to repair or pull down the same or any part thereof as the case may require, within fourteen days then next ensuing; And that if Repairs, within the said fourteen days the repair or demolition thereof be not begun and be not completed as soon as the nature of the case will admit, then on a declaration being made before the said lord mayor or a justice of the peace, of such notice having been so given, (which declaration the said lord mayor and justice are hereby respectively empowered and required to receive,) it §hall be lawful for the said lord mayor and court of aldermen, and they are hereby authorized and required, out of the cash in the chamber of London, and also for every such overseer of the poor by and out of the money in his hands, and they are hereby severally au- thorized and required, with all convenient speed, to order and cause such building or such part thereof so certified to be in a ruinous and dangerous condition, as shall be necessary for the safety of the passengers, to be" repaired or pulled down, or secured in such manner as shall from time to time be requisite : Provided always. Appeal that if such lord mayor and aldermen, or such over- survey! seers, appeal against such certificate, it shall be the duty of the official referees to proceed to survey, to 46 Ruinous Buildings. Demolition. 41 . Disposal of materials to pay costs. Payment of surplus on demand. If no de- mand. The Metropolitan Buildings Act, certify and to award in all respects as in the case of an appeal from the certificate of the surveyor with refer- ence to party-walls or intermixed buildings ; And that if such official referees certify that the said premises are ruinous and dangerous, it shall be the duty of the said lord mayor or the said overseers to repair or pull | down such building as aforesaid. t XLI. And be it enacted, with regard to any such ruinous buildings so pulled down, so far as relates to the disposal of the materials thereof and to the applica- tion of the proceeds. That it shall be lawful for the said lord mayor and court of aldermen, or the said overseers, to sell and dispose of such of the materials as they shall judge necessary, and out of the moneys arising from the sale thereof to reimburse to themselves, the surveyors and official referees, and every person by them respectively employed for the purposes aforesaid, all the charges of the survey and appeal, and of putting up every such hoard, and of repairing, pulling down and securing such premises, and of making good the pavement, and of selling the said materials as aforesaid, or so much thereof as the moneys arising by such sale will extend to ; And that if there be any surplus after payment of all expenses, then, upon demand thereof made by such owner, it shall be the duty of the said lord mayor, or of the said overseers, to account for and pay such surplus of the moneys arising by such sale to the owner of such building; or if there be arty question as to the person entitled to such surplus, or as to the priority of title to such sum of such persons so entitled, or as to the proportions to which such persons are so entitled, then it shall be lawful either for the lord mayor or the overseers, or for any person claiming to be so entitled, to refer the matter to the determination of the official referees, and their decision shall be final ; And that if no such demand be made, then such surplus shall, as regards places within the city of London, and the liberties thereof, be paid to the cham- berlain of the city; and as regards all other places, such surplus shall be paid to the overseers and added to the moneys raised as rates for the relief of the poor 7 & 8 ViCT. Cap. 84. 47 of the parisli. or place, and accounted for accordingly; Ruinous Provided nevertheless, that, at any time within six Buildings. years from the deposit of such surplus, it shall be law- city^rLon- ful for any such owner, his executors or administrators, to claim, and he and they are hereby entitled to recover fund within such surplus; and the said lord mayor and aldermen of the city of London, as regards the said city and liberties thereof, are hereby required to pay such sur- plus out of the cash in the chamber of London ; and every overseer, as regards places not within the said city or the liberties thereof, is hereby required to pay such surplus out of any moneys raised or to be raised by any rate for the relief of the poor. XLII. And be it enacted, with regard to such 42. ruinous buildings, so far as relates to the expenses of Jfency.^to be any such survey and appeal, putting up such hoard, paid by the repairing, pulling down, and securing such buildings, and selling the materials beyond the amount thereof, which shall have been satisfied by the application thereto of the proceeds of the materials, That if the I moneys arising from such sale be insufficient to repay 1 all such expenses, then, from time to time, such defi- 1 ciency shall be paid by the owner of every such building, being the person entitled to the immediate possession thereof, if known ; And that if, on demand Or levied by thereof, such owner fail to pay such deficiency, then it shall be lawful for the lord mayor for the time being, if such ruinous building in question be within the city of London or the liberties thereof, or if elsewhere, for two or more justices of the peace, to levy the amount thereof by warrant under their hands and seals, by distress and sale of the goods and chattels of such owner, if any such can be found ; And that if no such or occupier owner can be met with, or being: met with, shall not, on demand, pay the said deficiency, and no sufficient rent; distress of the goods and chattels of such owner can be found, then it shall be lawful for the person who shall at any time thereafter occupy any such building, or the ground where the same stood, and he is hereby authorized and required to pay and deduct the same out of the rent thereof; And that if he neglect orOrbydis- 48 Ruinous Buildings. tress on oc- cupier. Payment of money to chamberlain or to the overseers. 43 . Repair of ruinous chimneys, &c. Notice. Repairs. The Metropolitan Buildings Act. refuse to pay such deficiency, then it shall be lawful for the said lord mayor, or two or more such justices of the peace, and they are hereby empowered and re- quired to cause the same to be levied by distress and sale of the goods and chattels of any occupier of the premises, together with the costs of every such distress and sale ; And that if the premises be situate within the city of London and its liberties, it shall be the duty of the person by whom the same shall be received, and he is hereby required to pay the amount to the cham- berlain, to be by him from time to time placed to the credit of the cash of the said city of London ; and if the premises, in respect of which such money shall be received or recovered, be not situate within the said city of London and the liberties thereof, then to pay the amount received to the overseers of the poor for the time being of the parish or place where the pre- mises shall be situate, to be by them placed to the account of the said parish, in aid of the poor rate of the parish or place. XLIII. And be it enacted, with regard to ruinous chimneys, roofs, and projections, so far as relates to the repairing thereof. That if a chimney-shaft, chimney- pot or other thing thereon, or the eaves, or parapet, or coping, or slates, or tiles on the roof, or any projection from the front walls of any building, be in danger of falling ; then it shall be the duty of such surveyor and he is hereby required to require the occupier of such building, or if there be no occupier, then the owner thereof, to take down or secure the same within thirty- six hours after notice thereof shall have been given ; and that if, within the time specified, such occupier, or some other person interested in such building, do not begin to take down or secure the same, and, as soon as the nature of the case will admit, complete such taking down or securing of the same, then it shall be the duty of such surveyor to give information thereof to a justice of the peace; and, thereupon, it shall be the duty of such justice of the peace to proceed to cause such chimney-shaft, chimney-pot or other thing thereon, or the eaves, or parapet, or coping, or slates. f .1 1 si ar pe k oti do wl cil be ing ,als( ' aod seci I aod i verf I Pro I 1>!I I nieii i 5 Dc! li reni ^ nail ! ora repa ■anvi tl buildi daiDa iejcej jJ l 03 D( ii 1 7 & 8 VicT. Cap. 84. 49 or tiles on the roof or projection from the front or side Ruinous wall of such building as shall be considered by such Buildings. surveyor in danger of falling, to be forthwith taken down or secured ; And that if there be no occupier or Certification known owner, then it shall be lawful for such justice to direct that the reasonable expenses, to be certified by the official referees, be paid by the overseers of the parish or place in which such building shall be situated ; And if thereafter the owner of such building become Recovery known, or if the building become occupied, then it o‘j?^cc°up?e?^ shall be lawful for the overseers of the poor, and they are hereby entitled to recover the amount of such ex- penses from such owner or from such occupier, as in the case of ruinous buildings hereinbefore provided for; And that if within the time limited the occupier or some Penalty, other person interested in such building do not take down or secure the same, then for every day during which the same shall so remain unrepaired or not suffi- ciently secured, such occupier or the owner, if tliere be no occupier, shall forfeit and pay a sum not exceed- ing five pounds; And that such occupier or owner shall Fees and ex- also pay the surveyor’s fees and all other costs, charges, and expenses attendant upon any such taking down or securing the building; and all such surveyor’s fees, and other costs, charges, and expenses may be reco- vered and levied in the same manner as such penalty : Provided always, that if the occupier of such building Reimburse- , , 1 , • I 1 • ° ment of oc- be not bound by virtue or any lease or other instru- cupier. ,ment to repair, reinstate or secure the premises, then such occupier is hereby entitled to retain out of the rent payable in respect of such premises, all such pe- nalties, costs, charges, and expenses attendant upon .or arising out of the taking down or securing, or the repairing or rebuilding the same, as in the case of •any other works, the costs of which he is hereby re- quired to pay in the first instance. XLIV. And be it enacted, with regard to adjoining 44. .buildings, so far as relates to the making good any f^^i^of chim? damage arising from the falling down of parts thereof, neys, &c. (except any such part of a party-wall as shall belong to and be used conjointly by the owners or occupiers D 50 The Metropolitan Buildings Act, Ruinous of the buiiding^s parted thereby,) That if at any time Buildings, injury or damage be caused to any part of an ad- joining building, or to the internal decorations and furniture, goods, wares, and merchandize in such build- ing, by the falling down from any other building of any chimney-shaft, chimney-pot, parapet, coping or other compensa- thing, then it shall be the duty of the owner of the building from which such part shall fall, and he is hereby bound and required to reimburse the expense to which the owner or occupier may be put in making good such injury or damage, in like manner as herein directed concerning the reimbursement of the expenses of ruinous party-walls; and such costs shall be re- coverable in the manner hereinafter directed for the recovery of the costs and expenses of executing works in pursuance of this Act. 45. XLV. And be it enacted. That all the powers and mayor and authorities by this Act vested in the mayor and alder- aidermen. of the city of London, may be lawfully exercised by the court of mayor and aldermen of the said city, to be holden in the outer chamber of the guildhall of the said city, according to the custom of the said city. Expenses XLVI, And, for the purpose of reimbursing any of Works, building-owner for the expense of works incurred in respect of any party structure ; Be it enacted, with re- Repayment gard to the following works, so far as relates to the ofwo^rks?n reimbursement, by the adjoining owner, of expenses certain incurred by the building-owner, in respect of any party structure, built to part the buildings or premises belonging to other owners from the buildings or pre- mises belonging to himself; that is to say, — First, With regard to any party- wall hereafter built on the line of junction of any two build- ings ; and. Second, With regard to any party-wall hereafter built on the line of junction of any building and any vacant ground, or of vacant premises, belonging to different owners or occupiers ; and, Third, With regard to a ruinous and defective party-wall pulled down and rebuilt, either with 7 & 8 ViCT. Cap. 84. 51 the consent of the adjoining owner, or in pur- suance of the condemnation thereof, according to this Act, except a party-wall condemned on account of the injury done thereto by any build- ing-owner, and the expenses of which and of other incidental works the official referees shall have awarded to be paid by such building- owner, by virtue of the provision in that be- half; and. Fourth, with regard to one or more timber parti- tions between any two or more buildings pulled down, and a party-wall built in lieu thereof; and. Fifth, with regard to a new party- wall or party- arch built in lieu of any party-wall or party-arch between intermixed properties pulled down, either with the consent of the adjoining owner, or in pursuance of the condemnation of such party-wall or party-arch ; and. Sixth, with regard to any party-wall built on the site of a party-fence or party-fence-wall, and used otherwise than as a party-fence-wall by the person who shall not have built the same ; and, Seventh, with regard to every other case of reim- bursement, in respect of any party structure; That if the party structure, be built in the manner, and of the materials, and of the thicknesses of such structure as required by this Act in reference thereto, then it shall be lawful for the building-owner at whose expense such work shall have been executed, to claim and he is hereby entitled to be paid and to recover from the person who is entitled to the immediate pos- session of the adjoining building or ground, or who is in the immediate occupation thereof, the following compensations ; that is to say, — If a new party-wall or party-arch built on the line of junction by one owner, be made use of, either wholly or par- tially, by the adjoin- ing owner, then the sum of money pro- In reference to this section it must be remembered, that the first builder would be entitled to remuneration for the whole of a D 2 Expenses of Works. Recovery of expense from adjoining owners. 52 Expenses of Works. The Metropolitan Buildings Act. portionatetotheva- party or fence-wall, used not lue of so much of only for building purposes, but , . . ^ also for purposes of distinguish- such party structure boundaries SO made use of; and of property; thus where -4. uses wall of three hundred feet in length for building purposes for fifty feet only, and the residue of the wall divides the two properties, A. must pay half the ex- pense of building the whole length of such wall. If chimney-jambs, chimney-breasts and flues have been set up in any party-wall in pursuance of the instructions of the owner of any vacant ground adjoining to the same, then a sum equal to the value thereof; and If an unsound party- „ . ,1 But its unsoundness must be wall or other party certified by the district surveyor, structure be pulled or official referees, down and rebuilt, then a sum of money equal to a proper propor- tion of the value of the new party structure, de- duction being made for a due proportion of the old materials, and also a proportionate part of all expenses which shall be necessary for pulling down the old party structure, in lieu of which such new party structure shall be built ; and If a party-wall be built in lieu of a timber parti- tion or other party structure, and be made use of by the adjoining owner, then a sum of money proportionate to the value of so much of such new party-wall as shall be so made use of ; and also a proportionate part of all expenses which shall be necessary for pulling down the old tim- ber partition or other party structure ; and If a party-wall or party-arch already built, or hereafter rebuilt, be used by any adjoining owner, then a sum of money proportionate to the value of so much of such party structure, as the adjoining owner shall use, deduction being made, where proper, for the value of old materials; And, in every case, the whole of the reasonable expenses of the shoring up the adjoining build- ing, and of removing any goods, furniture, or 7 & 8 ViCT. Cap. 84. 53 other things therein, and of pulling down any Expenses wainscot or partition thereof; of Works. And also, such surveyors’ fees and any other fees ~ payable in respect of any acts performed by the official referees ; and also, such other costs (if any) as may have been awarded by the official referees as aforesaid in any of the cases hereby provided for ; And until such expenses shall be so paid, every per- Delay of son at whose expense such party structure shall have been built is hereby entitled to and shall be possessed of the sole property thereof, and of the ground whereon it stands, and the same shall be vested entirely in the person at whose expense such party structure shall have been built. XLVII. And be it enacted, with regard to the costs of all the works which shall be executed under this Act, incurred either by an owner or by an occupier, either on behalf of the owners of the same premises, or on behalf of the owner of the adjoining premises, so far as relates to the recovery thereof. That, within twenty-one days after the j. , . / . ^ . Under similar provisions con- completion of the work, it Gained in the former act (s. 41), shall be the duty of the it was decided that the notice person by whom such ex- pense shall have been in- curred, to deliver to the ad- joiningownerofthe building or which such expense shall have been incurred, an ac- count in writing of the ex- penses of the work, includ- ing all preliminary and in- cidental operations ; and also if the work shall have have' been executed by the authority of the official referees, by virtue of the therein required did not apply to the erection of a new build- ing, but only to the renewal of an old party-wall ; and also that the first builder of a party- wall premises in respect of adjoining to vacant ground was not restricted to the actual enact- ed term of notice, but that he might give his notice within reasonable time after the adjoin- ing house was attached to his wall . — Collins v. Wilson^ 4 Bing. 551 ; 6'. C. 1 M. & P. 454. power hereby provided for supplying the want of con- sent of owners, then a copy There was a similar provision in the former act (s. 41), and it has led to certain judicial deci- sions which will furnish pre- 47. Recovery of costs of building. 54 Expenses of Works. Account. Data of Account. The Metropolitan Buildings Act. of such account shall also be delivered to the official referees at their office ; And that every such account must contain a true ac- count, — cedents for future guidance. In conformity with one of these cases, as to the recovery of a proportion of the expenses from the adjoining owner for anything done under the Act, we may conclude that before an action can be brought to recover a pro- portion of the expenses of building a party-wall, the accounts prescribed by this section must be delivered, whether the house be occupied by the owner or by a tenant ; and a formal demand of the money must be made by the claimant ten days before action brought, or the summary remedy provided by the Act can be taken advantage of {q). Where the account delivered contained a correct statement of the quantity of work done, and. the materials allowed for it, it was held a sufficient account, though it also contained a statement of the prices paid for the brickwork, which exceeded the prices fixed by the statute (r). And the demand for payment referring to that account, and consequently of a greater sum than was recoverable, is a good demand ; and where the party-wall was built more on the de- fendant’s ground than on plaintiff’s ; held, that the plaintiff might recover the expenses of building, the jury finding that there was no intention of encroaching, and the defendant having made no objection while the work was in progress {s). First, of the number of rods and parts of rods of brick-work, and of all digj^ing, and of concrete, stone-work, and other requisite materials, and of the labour required in executing so much of the work as the owner of the adjoining building shall be liable to pay, and of the respective prices thereof ; and. Secondly, of any deduction which such adjoining owner shall be entitled to make therefrom on account of the old materials of so much of the wall or other structure pulled down, which shall have belonged to him ; And also a true account of the expenses of all other preliminary and incidental operations ; And that all such works must be estimated and valued in every such account at such rates and prices as shall from {q) Philp V. Donati, 2 Taun. 62. (r) Reading v. Barnard, M. & M. 71. is) Ibid. 7 & 8 VicT. Cap. 84. 55 time to time be fixed by tlie official referees ; And that Expenses if within ten days from the delivery of such account, Works. any party dissatisfied with the proportion of the amount Examination thereof charged to him, appeal to the official referees, byoffidLi?e- then upon the receipt thereof, or if, in cases of want of ferees. due consent as aforesaid, such account be delivered to the official referees as aforesaid, it shall be the duty of the official referees to examine such account, and to certify whether they approve or disapprove of the items thereof, and whether the rates and prices are duly charged, and whether the proportion of the account charged to the party appealing be duly charged, and also to appoint how and by whom the expenses of such examination are to be borne, and also to appoint the time or times at which the amount of such account, and of such expenses payable by any party, are to be paid ; And that if they certify their disapproval, or that • the charges are not duly made, or the amount fairly ap- portioned with regard to the party appealing, then be- fore any demand be made or any proceedings be taken thereon, the account must be amended, and again exa- mined by the official referees, and certified as afore- said ; And that if the official referees certify their ap- ^^doTmand proval, then at the time or times appointed by the said of payment, official referees, it shall be lawful for the person entitled to such costs and expenses to demand the amount thereof; And that if, within ten days after the delivering amomft? ° of such account to the party liable to pay the same, such party do not either appeal against such account or pay the same ; or if, within ten days after the demand thereof, in conformity with the certificate of the official referees, the amount thereof, together with the costs of the examination of the account as the official referees shall certify, be not paid ; then it shall be lawful for the person entitled thereto to recover the same, or so much thereof as shall be then due, by the summary proceed- ing hereby provided. XLVIII. Provided always, and be it enacted, with re- gard to works executed under this Act, so far as relates ments of to the reimbursement to the occupier of any costs by him paid in respect thereof. That, unless there be some occupiers. 56 Expenses of Works. Discharge and repay- ment. 49. Recovery of The Metropolitan Buildings Act. covenant or agreement to the contrary between the parties, it shall be lawful for such occupier and he is pntitled to deduct The occupier, however, must hereby entitled to deduct from the rents due or be- coming due from him to his lessor or landlord, the be careful lest he lose his re- medy against the landlord by any active interference in or- amount of any such costs, dering and superintending the charges, and expenses pay- works, the expenses of which , 1 , 11 i ‘ h he claims to be reimbursed, able by his lessor or land- lord, and the costs, charges rebuilding a party-wall was and expenses of any dis- given under the former act, and tress and sale made on him the tenant of the adjoining through the default of his , ° I n 1 A 1 to repair, finding it necessary, lessor or landlord ; And „„^,equence, to shore up his that the receipt tor sucli house, and to pull down and re- payment shall be a suffi- place the wainscot and parti- cient discharge to any oc- 6ons of it, instead of leaving cupier for so much money as he shall have so paid, or giving notice in theman- which shall have been sole- ner prescribed by the Act, and vied on his goods and chat- afterwards paying the same to him tels in pursuance of this demand, employed work- Act, and shall he allowed ““ , ’ , , , ,1 1 cessary works, and paid them for by such lessor or landlord the same -.-Held, that he could in part or full payment (as not recover over against his the case may be) of the landlord, such expenses incurred rent due to him by such by his own orders, and paid for by him in the first instance; occupier. powers and authorities given by the Act in respect to any works to be done, being given to the owner of the house intended to be pulled down and rebuilt, and the landlord of the adjoining house being only liable by the Act to reimburse his tenant money paid by him to the other owner, for such works as are authorized to be done by such other owner, in respect of such adjoining house. — Robin- son V. Leivis, 10 East, 227. A tenant under covenant to repair, cannot maintain an action against his landlord for a moiety of the expense of rebuilding 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. — Pizy V. Rogers, 1 Ry. & M. 357. XLIX. And be it enacted, with regard to the costs 7 dIi ma 7 & 8 VicT. Cap. 84. 69 they respectively are hereby empowered and required to make such adjournment and hold such sessions as there shall be occasion. LX. Provided always, and be it declared, with re- gard to any business which is contrary to any existing act of parliament, or otherwise contrary to law, so far as relates to the operation of this Act in that behalf. That, notwithstanding any- thing in this Act contained, this Act shall not be deemed to authorize any person to Buildings, Use there- of- 60 . Common law and statu- tory reme- dies not af- fected. No business heretofore un- lawful is legalized by this Act, though many may be prohibited which were formerly allowed, carry on any such business Nor does the Act interfere with either within such limits or ““y existing right to proceed in . 1 • case of nuisance, either by ac- otherwise, or any business „„„ indictment; but leaves which It IS unlawful to carry ^11 former remedies as they on, within any limits or in were. The remedies herein any manner contrary to given, are therefore additional any public, local, or private previously in existence. act of parliament, or other- ^titution for them, wise contrary to law ; nor to affect, abridge or restrain the right, the duty or the power of any person, whether private person or public officer, to prosecute, either civilly or criminally, any person who shall carry on, within the limits of this Act, any offensive, noxious, or dangerous business. LXI. And further, for the regulation or removal of any offensive, noxious, or dangerous business now car- ried on ; Be it enacted, with regard to any such bu- siness, so far as relates to the purchase thereof, or of the premises wherein it shall be carried on, that if two- thirds in number of the inhabitant householders of any 61 . Regulation or removal of trades deemed nui- sances by purchase. parish in which such business shall be carried on, pre- sent a memorial to her Majesty in council, stating the existence of such offensive, noxious, or dangerous bu- council, siness in such parish or the neighbourhood thereof, and praying the removal of such business therefrom, and . thereby engaging to provide compensation to the per- sons carrying on the same, either at the expense of the memorialists, or by means of a rate to be levied on the inhabitants of the said parish, or such part thereof as may be affected by such business, then it shall be 70 BuildingSj Use there- of. Order for removal. Compensa- tion. 4&5 Viet. c. 12 . Unlawful to continue such trades after pur- chase. 62 . Funds for defraying compensa- tion. The Metropolitan Buildings Act. lawful for her Majesty to refer the matter to the lords of the committee of privy council for trade, to consider the character of such business, whether it be offensive, noxious, or dangerous j And it it appear to be so, and that there are no means of rendering it otherwise by the adoption of methods available, without unreason- able sacrifice on the part of the person by whom it is carried on, then it shall be lawful for her Majesty, by order in council, to direct that the removal of such business may be purchased, either at the expense of the memorialists or by means of a. rate, as aforesaid, as to her Majesty shall seem fit; and also to direct the sheriff of the county or other proper person in the parish or liberty in which such business is carried on, to summon a jury according to the provisions of an act made and passed in the fourth year of the reign of her present Majesty, intituled An Act to enable Her Majesty’s Commissioners of Woods to make a new Street from Coventry-street to Longacre, and for other Improve- ments in the Metropolis,” to determine what compen- sation shall be paid to the party carrying on such bu- siness for the removal thereof, and to the owner and occupier of the premises for the restriction of the use of his buildings for such purpose ; And that if, within three months after the verdict of such jury shall be given, and judgment thereon, the inhabitants of such parish or neighbourhood pay or tender such compen- sation, then, within three months from the payment or tender of such compensation, it shall cease to be lawful for the party carrying on such business to continue the same, and for any owner or occupier thereof either to carry on or to permit to be carried on such business in the same or any part of the same premises. LXII. And be it enacted, with regard to the funds for defraying such compensation, so far as relates to the raising thereof. That if her Majesty shall by such order direct the compensation to be paid by means of a rate, then it shall be lawful for the overseers of the parish to raise such sum as shall be necessary, either as a separate rate in the nature of poor’s rate, or as part of the poor’s rate, on the inhabitants at large of such I 'Ns ‘ or : d( si 1 f 'fo ,W( or lo «i ni k b IDI Jil .r^ ID( Ac ir . i-ti; 3 -ill J 3 7 & 8 VicT. Cap. 84. 71 parish ; or if in pursuance of the memorial of the Buildings^ inhabitants of such part of the said parish as shall be there- affected by the said business, it be appointed by such order in council that such last-mentioned inhabitants do defray such compensation, then it shall be lawful for the said overseers to raise such sum as shall be necessary for that purpose; yVnd that if such rate be Levy of rate, so levied either on the inhabitants at large of such parish, or on the inhabitants of such part thereof as aforesaid, then such rate may be levied and recovered as poor’s rates are leviable and recoverable. LXIII. Provided always, and be it enacted, with ^3. regard to public gas works and other works heretofore of'pi'Jbuc^" established within the limits of this Act, so far as re- works, lates to the operation of the provisions of this act in reference to businesses dangerous in respect of fire or explosion, or offensive or noxious, That such provisions shall not be deemed to apply to any such public gas works, and that if by any act of parliament now in force relating to gas companies to which such works belong, any extension of such works, or any additional Extension or works, or any other works be authorized to be erected of work's?”" or substituted, then such provisions shall not be deemed to apply to any such extension, addition, or substitution within thelimits of thedistrict now lighted from such first- mentioned works, and that such provisions shall not be Distilleries, deemed to apply to any premises entered or used for the pur- pose of distillation or the rectification of spirits, under the survey of the commissioners of excise or their officers. LXIV. And now, for the purpose of dividing the Surveyors, district to which this Act is to apply into several smaller their Dis- districts, for the convenient execution therein of this Act, and for appointing competent surveyors for super- 1 intending the same in each such district, and for regu- 64. lating the duties of their office ; Be it enacted, with meilt'of'dis- regard to such districts, so far as relates to the appoint- tricts. ment and alteration thereof, that at any time after this Act shall come into operation, and from time to time, it shall be lawful for the lord mayor and aldermen of the • city of London, with reference to the city of London and the liberties thereof, and for the justices of the 72 District Surveyors. 65 . Appoint- ment of sur- veyors. 66 . Practical qualifica- tions of sur- veyors. Examiners. The Metropolitan Buildings Act. peace for the county of Middlesex, the county of Surrey, the county of Kent, the city and liberties of Westminster, and the liberty of her Majesty’s tower of London, in their general quarter sessions respectively, or any adjournment thereof, with reference to their respective counties, city, and liberties, and they re- spectively are hereby empowered, but subject, never- theless, to the consent of one of her Majesty’s principal | secretaries of state, to appoint the districts to which the respective places within their jurisdiction shall belong for the purposes of this Act, and to unite, en- large, and alter such districts for the more convenient distribution of the business. LXV. And be it enacted, with reprd to the survey- ors to be assigned to such districts, for the purposes of this Act, so far as relates to their appointment. That at any time after this Act shall come into operation, and from time to time, it shall be lawful for the said lord mayor and aldermen of the city of London, with refer- ence to the city of London and the liberties thereof, and for the said justices of the peace in their general quarter sessions respectively, or any adjournment there- of, with reference to their respective counties, and they are hereby required, but subject, nevertheless, to tlie consent of one of her Majesty’s principal secretaries of state, to nominate and appoint, as surveyors, such and so many discreet persons, of the full age of thirty years, and properly educated and skilled in the art and practice of building, as they the said lord mayor and aldermen and the said justices shall think fit. LXVI. And be it enacted, with regard to such sur- veyors to be hereafter appointed under this Act, except 1 present district surveyors appointed to new districts, so ( far as relates to the ensuring the possession of due < scientific and practical qualifications. That it shall be lawful for the commissioners of works and buildings, s and they are hereby empowered to appoint three or 1 more architects, surveyors or builders to examine, to- is gether with the said official referees, any persons who may present themselves to be examined for the purpose of obtaining a certificate of qualification, with the view 7 & 8 ViCT. Cap. 84. 73 of becoming candidates for the office of surveyors of District metropolitan buildings of any district witiiin the limits Surveyors. of this Act; And that for that purpose it shall be Exat^iiii^rs lawful for such examiners from time to time to appoint to prescribe such times as to them may seem fit, and from time to time to prescribe such course of examination as to them may seem fit, and to make any other rules for the regu- lation of such examination and the granting of certi- ficates in respect thereof, subject nevertheless to the approval of the commissioners of works and buildings; and that when such rules shall have been registered by the registrar of metropolitan buildings, they shall con- tinue to be in force until they shall be amended, altered or rescinded by other rules to be made by such exa- miners and so registered as aforesaid ; And that unless Production one week before the election of a surveyor for any district created by this Act, or for any district in res- examination, pect of which the office of surveyor may become vacant, there be produced by or on the part of any person being candidate for the said office, a certificate of such examiners, certifying that he has been examined, and that he was thereby found to be duly qualified for such office, to the town clerk of the city of London, or to the clerk of the peace for the county, city or liberty, it shall not be lawful for any justices, by this Act em- powered to appoint surveyors, to appoint such person to be such surveyor, and that if such person be so appointed, his election to such office shall be void. LXVII. And be it enacted, with regard to such sur- 67. veyors, so far as relates to the tenure of their office, of That it shall be lawful for every such surveyor and he is hereby entitled to hold such his office of surveyor during the pleasure only of the said lord mayor and aldermen and of the said justices respectively. LXVIII. And be it enacted, with regard to such -68. surveyors, so far as relates to their functions generally, ge“nerany! That it shall be the duty of every such surveyor, and he is hereby required, — To see that all the rules and directions of the Act are well and truly observed in and throughout his district ; and for that purpose, E 74 District Surveyors, 69 . Disqualifi- cations. 70 . Continuance of present surveyors, 14 Geo. III. c. 78. The Metropolitan Buildings Act. To proceed from time to time in due course, upon the receipt of any notice, or if from ignorance or neglect, or from any other circumstance, no- tice of any work intended to be done have not , been given, then, upon such work being ob- served by or being made known to him, to inspect the works intended to be done, or which shall have been commenced ; and to cause all the rules and directions of this Act in respect thereof to be strictly observed ; and also. To attend and perform every thingrequired of him by this Act, whether with or without notice; and also. To inspect ruinous buildings and projections in danger at all times when needful, and to take all necessary measures thereupon ; and also, To survey all buildings built, rebuilt, enlarged or altered by or under the superintendence of a district surveyor within any other district to which he shall be appointed by the official re- ferees for that purpose ; and also. To cause a book for registering all notices, infor- mations, and complaints to be at all times kept at his office, and to enter in such book every notice, information, or complaint which shall be delivered or made to him, and any proceeding thereon by him taken. LXIX. And be it enacted, with regard to such sur- veyors, so far as relates to their disqualifications. That during the time that any such person shall act as a justice of the peace for the county in which his district shall be situated, it shall not be lawful for him, and he is hereby disqualified from holding the office of a sur- veyor or of deputy or an assistant surveyor for any dis- trict under this Act. LXX. And be it enacted, with regard to the sur- veyors who, at the time of this Act coming into opera- tion, shall have been appointed under the act of the fourteenth year of the reign of King George the Third, mentioned in the Schedule (A.), hereto annexed, so far as relates to their continuance in office, and the appli- cation of this Act to them, I’hat until they shall be re- 7 o Pi « I en o) 01 01 0) 0) P pC cs 01 o |s=^fl 2 = 1 11-1 2 ^ P • . o ^ ^ ^ O Jr J3,C,a ii o‘"r*' .SC c o a ° •c 6 o) ^ 2 c a o< 3 OC S I 0 > V 0 ) OJ 01 O ) V 0 > u JS - ») C pC •jj 0 ) d ,1 tsSpSi*-*.- 0 ( o * O o c S 01 rr ^ o< 2-^5 o» UJ c CpS oi o> c p o c o a S'® .y — O cn « 5 ' 1 's-ps 0 ) pP o. o 5 c >® 2 « o T 3 £ J 5 « ! 2 .2 S s S 's osr 2 ®rs g O 2 fe-c*' o « fli O* 2 "'^ S pfl ^ 2 - - i, « — «_ j. § 2 « ° o I § «II 25 « =2 s 3 TJ S O n E S X l| = "* o O c 5 2 ^2 - o a o 2 -p> 2 c o - ■ "r-|p 0) 3 5 °pS|“ ■*^ 3 0 < [2 •3 E ® ” C _ <= EpS 1 d o a . Esi 3 pppg a> 3 o o t; .03 2 c a , tn w g O O c E B) « 5 ‘ a 5 *®^ ^ ■ O o pC 0/ fl> 2 l 2|2 Op-2 S O- 3^^p£ 3 c*. O' 'a Jr o X -* o o 2 S o S«pS O tn •“ 01 O , 01 o o d o s '® S 9 - 2 ? C Op'S 'H E ^ Q.pO -”3 2 ^ 3 -c c 01 a. ' -5 3 O'® 2 mI’ms: Igis:- '7 o^ E o 2 -i-o 2 « oi ^ _ 2, pC O 01 X 3 .o'' E^ £ o. 0.5 o 0.0 o 2 ^ o o ■<-•2 3 0 -pS pS« 5 ^«^ ti. . a ; -2 s „~ E- 01 ' 2 I O 3 U .a .< M . 3 h 5 | 01 M _ c ' d fc o •S|p 2 pScO O 01 S: S' ^ «=c 5 3 rt 01 O ^ pS .3 O "•■ u E S'' O . « o o E-. a E 0 "f Ja E" A ^ O a; C P il« s-S I • •4^ri . SCHEDULE (C.) — Part. II. — (continued.) 7 & 8 VicT. Cap. 84. IM o Ho 1=2? 0) ^ I js a o : O cniigS ^ 2 "O P !U S5 'f C ^ 1h <= • g o H I & i: 3 «* 3 5... ..3 13 O rtj § 1^2 ^ g O O tn p ■« "tJ 5.“?! 2 ’=S 3 llsl ■2 S o S ^l2 S I CO O) O 0) O 4^ 2 ': oT s -3S O in O t2 c o e o« £ aj tC o 2 2 S'" ^ c tn 3,0 o' o o 0, .£ ^•5222 C 'C ® c« l§ll It”! ° ° S' l = “J^ "t 3?5 3 *" § 53 O o .r, m ^ o 2 «” £ S« oS§''=S 2 £*^ s S'- ^ o. g ^ O," c 22 qo S ! 0-.5 4) CQ tn } 0) O) O) 4) 4) -i »”2 § 2 aTO ^2 S'® 2 3 4J .3 -3 3 X! « P S <:S £^ I 3 O 3 I "sc 3 l "3 .Lg°^ t, = 41 O O ?i-= 3 . *. £ o o S O ,3 2 tS 3 |'«’^2 ^ 0 > . s 2 rC ? 3 , 4 ) 3 S «- 2 «C b § ^ O„o ="3 , bo 5;^ c3 c o = S .. 3 "3 ' a o 41 3 ! 3 3 S « 2 *- o 2 o o '*-' 03 S 3 3, 2 5 Q ^3 2 S c o, o « S 2 !sl2 £ ■M 3 T 3 £ <:S I 3 — O ® 10 a "3 - 1 : 2 * 4 ) 10 41 33 035 Kfl 4> 3 , "3 ^ p-p s .j o o i; boti ,3 0 c *3 o o •S g 2 o ►- S «« s| S 2 o«§^ 0 > -^‘a-SS^S ,3 3 3 = « - 2 .3 “ tn 4J si O II -I? I§S.E = 4 o Pi ^ z 2 2 3 4) Q W •p §2 22^ «S'S "” 4J S3 U n •-1 h S ■ 4- :2 « I O PS o o 3 .2 4- *>! J2 o PS (j o.s 2 o 3 O S w 4» a “ •p h2 « “S 12 S ”' ■•-' H CO 4- 4 J2 o PS "3 o p o i "3 Pc o 5 od 3 - ” p O P CT* JJ o< o c ^2 « « . .-Ss3 o « co-g 2 i 2i s § O £i 2 " O' • 2 S' o “ , £ K CO 3 t 3 3 rt 3 3 S3 3 2 a; o o y o £ 22 3T3 3 C5 3 a 2 '^2 V O o> O 4 ^ s Vh G ^ ^ 4J ^ •"f = 4 . O' s 3 4 » CO 5|i ' 2-0 2 O' £2 S?§ C 3 112 The Metropolitan Buildings Act, Transverse SECTIONS of WALLS of the FIRST, or DWELLING- HOUSE CLASS, according to the Descriptions of their Thicknesses in Schedule (C.) — Part II. FIRST RATE. SECOND RATE. 7 & 8 VicT. Cap. 84, 113 Transverse SECTIONS of WALLS of the FIRST, or DWELLING- HOUSE CLASS, according to the Descriptions of their Thicknesses in Schedule (C.) — Part II. THIRD RATE. FOURTH RATE. 1 114 The Metropolitan Buildings Act. Transverse SECTIONS of WALLS of the SECOND, or WARE- HOUSE CLASS, according to the Description of their Thicknesses in Schedule (C.) — Part III. FIRST RATE. SECOND RATE, 7 & 8 VicT. Cap. 84, 115 Transverse SECTIONS of WALLS of the SECOND, or WARE- HOUSE CLASS, according to the Descriptions of their Thicknesses in Schedule (C.) — Part III. THIRD RATE. FOURTH RATE. SCHEDULE (C.)— Part UL^see Sec. 5 .) Conditions for determining the Rates to which Buildings of the Second or Warehouse Class are to be deemed to belong, and the Thickness of the External Walls and of the Party-Walls thereof. 116 The Metropolitan Buildings Act. -1 •< E - < o B- P 2 § S « Hs OQ g H o •S »3 O J 3 CO to tM H O a V T: ‘-3 c « 2 S ° -2 « r. S '*" o « a> ^ > « :S « ? S.1.^ ^2 ° S ft, > en c*. 2 'S « 'S *3 ^ c w S 'v "W 0) X C O '*" (N £ o - .2 " J:® tfc. e« - 4-1 C 4 o o ® I 2* 4J ft, -2 •£ -9 4> c :S I o 4J 4> O '9 2*" Cu rt tao p « s bC 4J -9 c ■£ 4, 111 o -® O M **■ r-^ t'* O 4) '5 a "" c .2 ft, cs o «« j3 O) D. ® .4, O ^ 4-J ^ o> CO ^ C Oi „ p ft, bo ►a a 4) to ^ rp 2 a « s 2 p,ti; o „ 'O « a '® a ft, 2 2 ■5 o o ^ -S a c^-% a a .a ® i ^ a 2 ®* a o .2 "'iCT ft, 4J t>. S o — "S a r. < c 2 pc; « :£ a to o So 2i a 2-- 'S ® (U ^ ^ _._r It® f- i .a '2 ; bA a , bD'^ rt .5 .a "S .r bo ••■ GO .a .S w o ’:= *0 = >2 S-3 a 4j +j p" M !£ .2 — 4-> o ^ 1 ® P ^ C,*J • — o _ t» O 2 s tj 4i o rt ®-a^ 0.-5 *" ^ 2 s I ® ■So — -® a CO *J to 4, a ..‘M « .a a o *2 C c 00 ^ p - .2 '"1"^ t« rj — ^ C8 ^ — J2 ' 4J S ft, o 4J a -5 Iff §'2'^- •*■> “13 to I .2 a l^« ^ Cfl rv] CO t2?l ®- o; ) 0^ . w i t® a ^ : e ^ a fe a QO "" S } o *a a ^ ; th «— ® : ^ o -o «« i ^ CO .S ^ "‘t® ’ a a ^ ^ > a (N'^ ^ Sj ® ® M ft. " ^ a CO : 4J ® 2 ' '*1'’^ "' o 3?J ^ ^ o c % ^ rTS (n o ^ r% CU (y pZi OJ (U 2 2i CO 3 c.; .a'^ 1 s rl §*1 a a, *" to ► 2 (/i O a . 2 .Si: a .►T.a pi *a a- a £ eo *J P3 r1 a Q to *® ^la o o ■*■• .2 S o " K ci o a -a 4) ^ a a p a — «4 2 .4, ►S'*' ft, ^ fts ° J t § s? i£ CM SCHEDULE (C.)— Part III,— {continued.) 7 & 8 VicT. Cap. 84, 117 g 41 O 2^ “ = X 2! W o W O 2; K =J T 3 s «« o -^2 a 'rt o I 03 §•1 N I a - ^ « .s ~ >- ^ 03 -a ^ 03 « C « o s 03 rHlC* C C3 ^ ^ tn _ 03 O **^ ^ CO c bX)«A-i d ) O ' T ? I — ^ «*!i CO 03 cs 00 S « ^ ^ :S M ^ « ^. ■ O 03 05 I asr sslsa^ O -,.^.00 « c ^ 'S ■5 c <1 « o OQ 03 +3 - °|2 "" 'S -s ^ bO ; .s - ^ c ^ 2 '*-» crt ! c2 S :S 2 « ‘i « 2 a ci: 03 C« ^ 03 !«J r^ CO o n! ^ 00 ^ J '« ,-,-00 03 ,2 a^l C3 ^ On ',a '- 2 •M bc,^ 0.5 ^ o. - .-TS JJ O o, 03 O « 03 ^ 2 ^ •S a .H « -M d d 03 2^0 ,2 0 2 -ti 2 « « d ■•5 ,d 03 a j-2 «A-i 03 O o ^ d ■« . £1,2 03 "TS -J ,o <— I -»J l> 03 e tf W3 d U d ^3 rt d rd cs 03 -CJ i- 03 O ^ 2 T5 o =3 2 ^ O CQ 03 d-jd 03 2 S C! 2 o to 03 03 Jd d o 5 03 •d cd 0 'is 1 O.S 2 2 cd d 03 ^11 1.11 CO ^ 2 03 - 2 M « A d 3 o o -H ^ ^ 22 o ’5 03 ,Q — 03 ■ > 03 03 03 2 i « 03 03 t 3 43 T 3 2 o ,_l :: 2 o d' o 2 ci,^ ^ S •4^ (U Q> ^ ^ • 03-^ ^2 . 03 O ^ O "S 03 — . *5 03 A -*^ t> 03 C- 2 2 ° 03 A 03 o O c 13 CO w 0 ^ TO C 2 4< O 03 2 '5 §^^2 2 t>c*> 2 2- 2 to d - d - ^ 2 d S c «2 §^2?2 2 «*- 03 f- 03 CO ^ •5 ^ flJ -M ^ 43 22 c*- t> «J O ° l.s s .»,> ,0 GO .4.J 03 a 22 h2 o d 2 2 o 2d® p. ■ <1 o d CJ 03 St - o *r d ^ 5 2 d (M 118 Schedules. The Metropolitan Buildings Act. SCHEDULE (C.)— Part IV. Rules concerning Buildings of the Second or Warehouse Class. Warehouses, ^c. With regard to any building of the second class, hereafter built or rebuilt, in reference to the capacity or contents thereof within the same enclosing-walls, — If such building contain more than 200,000 cubic feet, then such building must be divided by party-walls, so as that there be not in any one part of such building more than 200,000 cubic feet without party-walls. Openings in Party-walls. And with regard to buildings of the second class, in reference to openings through party-walls, — Such openings must not be made wider than six feet, nor higher than eight feet, unless in each case, and upon special evidence of necessity for convenience or otherwise, the official referees shall previously authorize larger openings. And the floor, and the jambs, and the head of every such opening must be composed of brick or stone or iron work throughout the whole thickness of the wall. And every such opening must have a strong wrought-iron door on each side of the party-wall, fitted and hung to such opening without wood work of any kind ; and such doors must be not less than one-fourth of an inch thick in the panels thereof ; And each of such doors must be distant from the other not less than the full thickness of the party-wall. Roofs. And with regard to the roofs of buildings of the second class, — In order to prevent the formation of curbed roofs to such buildings, the plane of the surface of the roof of every such building must not incline from the external or party-walls up- wards, at a greater angle than forty degrees with the horizon. SCHEDULE (C.)— Part V. REauisiTES for determining the Rate to which any Building of the Third or Public Building Class is to be deemed to belong. If any building of the third or public*building class correspond in 7 & 8 VicT. Cap. 84. ■ ' SCHEDULE (C.)— Part N .—continued. form or structure or disposition with a dwelling-house, — then the rate thereof is to be determined by the same rules as the rates of the first or dwelling-house class ; and the thicknesses of the external and party-walls, and the width of the footings thereof, are to be at the least four inches more than is hereby required for the external and party-walls, and the footings thereof, of buildings of the same rate of the first or dwelling- house class, unless the official referees, on special supervision in each case, shall otherwise appoint. But if it correspond in form or structure or disposition with a warehouse, or any building of the second class, — then the rate thereof is to be determined by the same rules as the rates of the second or warehouse class ; and the thickness of the external and party-walls, and the width of the footings thereof, are to be at the least four inches more than is hereby required for the external and party-walls, and the footings thereof, of build- ings of the same rate of the second or warehouse class, unless the official referees, on special supervision in each case, shall otherwise appoint. But if it do not correspond in form and structure, or in either, with buildings of the first or second classes, or any of them, then such building is to be subject, as to its walls or other construction, to the special approval of the official referees. SCHEDULE (C.)-Part VI. Rule concerning Fire-proof Accesses and Stairs to Buildings of the First and Third Classes. With regard to buildings of the first class, whereof the internal stairs are of stone or other incombustible substance, — such stairs must be set in, or be fixed to, and be wholly upborne by, fire-proof constructions, and must be connected internally by landings, the floors of which are fire-proof, and wholly upborne and supported by fire-proof constructions ; and must be con- nected with the exterior entrance by passages, the floors of which are fire-proof, and wholly upborne and supported by fire-proof constructions. And with regard to buildings of the third class, — the floors of the halls, vestibules, lobbies, corridors, passages, and the stairs and landings, and all other ways of ingress and egress within the building, to and from all rooms or apartments used for public congregation, and to and from all galleries being part of, 119 Schedules. 120 Schedules, The Metropolitan Buildings Act, or being connected with, any such room or apartment, must be wholly supported, constructed, formed, made and finished fire-proof. SCHEDULE (C.)— Part VII. Rules concerning attached and detached and insulated Buildings, as to the Rates and Walls thereof. Attached Buildings and Offices, With regard to buildings or offices now built or hereafter to be built (except greenhouses, vineries, aviaries, or such like buildings), — and that, whether such buildings or offices be attached to, or detached from, the buildings to which they be- long,— Every such building is to be deemed, in respect of the walls thereof, and all other requisites, as a building of the rate to which it would belong if it had been built separately. Insulated Buildings. And with regard to buildings of the first or dwelling-house class, and of the second or warehouse class, which shall be insulated, so far as relates to the distance thereof from a public street or way,— Every such building must be distant from any public street or alley one-third of the height thereof at the least ; and if the building do not exceed 24 feet in height, — then it must be so distant at the least eight feet. And with regard to such building, so far as relates to the distance thereof from any other building, or from ground not in the same possession or occupation therewith, or connected there- with only by a fence or fence-wall, — it must be distant from such other building or such other ground at the least 30 feet. And if such building be so distant from a public street or alley, and from any other building, or from ground not in the same possession or occupation therewith, — then such building is not to be liable, in respect of the dimensions and materials thereof, to the rules and directions of this Act. Insulated Buildings afterwards divided. Provided always, that if any such building be hereafter divided into two or more distinct buildings, and the several parts of such buildings so divided be not at the aforesaid distance from each other, and from other buildings and ground, — then such ti 7 & 8 ViCT. Cap. 84. SCHEDULE (C.)— Part \ll.— continued. several parts must be separated from each other by such party- walls, as are herein prescribed for the rates to which such several parts, if adjoining, would belong. And if such requisites be not observed, — then such several parts of such buildings in respect of which they are not so observed, shall be deemed a public nuisance, and as such be taken down, according to the provisions of this Act in that behalf. Toll-houses, ^c. And with regard to certain buildings which shall be built for the purposes of trade or the collection of toll, — If such buildings be situate fifteen feet at the least from any other building, and do not cover an area of more than one square and one half, and the height thereof do not exceed twelve feet from the ground to the highest point of the roof, — then every such building may be enclosed with any materials whatso- ever ; but the roof thereof must be covered as herein directed with regard to roofs, and the chimney and flue (if any) must be built as herein directed with regard to chimneys and flues. SCHEDULE (D.) Part I. — Rules concerning Walls of whatever Kind. Foundations. With regard to the Foundations of Walls : — Every external wall and every party- wall, and every party-fence- wall, must be built upon a constructed footing, based upon solid ground, or upon other sufficient foundation. Footings. With regard to footings of walls, in reference to the materials thereof, to the width" thereof, to the height thereof above the foundation, and to the depth below the surface, — Materials. In reference to the materials thereof: — Every footing must be built either of sound bricks, or of stone, or of such bricks and stone together, laid in and with mortar or cement in such manner as to produce solid work. 121 Schedules. G 122 Schedules. The Metropolitan Buildings Act. SCHEDULE (D.) — continued. Width. 3. In reference to the width thereof : — The bottom of the footing of every external wall and party- w’all of the first rate must be at the least 17jj inches wider than the wall standing thereon ; and the bottom of every footing of every external wall and party- wall of the second and third rates must be at the least 13 inches wider than the wall standing thereon ; and the bottom of the footing of every external wall and party-wall of the fourth rate and of every party-fence-wall, must be at the least 82 inches wider than the wall standing thereon. The top of the footing of every party-fence-wall and of every external wall and party-wall must be, at the least, four inches wider than the wall standing thereon. Height. [. In reference to the height above the foundation : — The footing of every external wall and party-wall of the first rate must be at the least eleven inches high above the foundation. The footing of every external wall and party-wall of the second and third rates must be at the least eight inches high above the foundation. The footing of every party-fence-wall and of every external wall and party-wall of the fourth rate, must be at the least five inches high above the foundation. Depth below Ground. . In reference to the depth thereof below the surface of the lowest ground or area adjoining : — The top of the footing of every .party-fence-wall and of every external wall and party-wall must be at the least three inches below such surface. Depth below lowest Floor. I. In reference to the depth thereof below the surface of the lowest floor adjoining, or intended to adjoin, thereto : — The top of the footing of every external wall and party-wall must be at the least nine inches below such surface ; and in any building of the first class the surface of the earth, or of any paving on the outside, (except the pavement of any public way,) must not at any time be raised to within six inches of the surface of the lowest or first floor of such building. 7 & 8 VicT. Cap. 84. SCHEDULE (J).)— continued. Thicknesses of Enclosing Walls to Stories of Build- ings of whatever Rate. With regard to the enclosing walls to stories of buildings of the first and second classes, — Each of the enclosing wails of any such story, throughout the whole height thereof, from the top of the footing up to the top of such story, and with all the sets-off in addition required for such wall, to whatever rate or whichever class it may belong, and throughout at the least one-third of the whole length of such wall, in piers properly distributed, must be of the fol- lowing dimensions, (unless cross or return-walls, coursed and bonded with the enclosing walls, shall, in the opinion of the official referees, upon special application to them in each par- ticular case, give sufficient strength, with less thickness in such enclosing walls) ; that is to say, — As to first class buildings ; if the story be in height more than 11 feet, — then the thickness of its enclosing walls must be at the least 13 inches. Or if the story be in height more than 15 feet, — then the thickness of its enclosing walls must be at the least 17^- inches. As to second class buildings ; if the story be in height more than 9 feet, — then the thickness of its enclosing walls must be at the least 13 inches. Or if the story be in height more than 12 feet, then the thickness of its enclosing walls must be at the least 174 inches. Or if the story be in height more than 15 feet, — then the thickness of its enclosing walls must be at the least 214 inches. Or if the story be in height more than 18 feet, — then the thickness of its enclosing walls must be at the least 26 inches. Nevertheless as to any external wall of any building of the first class in which there are no apertures or recesses. If there be another external wall and a cross wall of not less than 84 inches thick, coursing and bonding with such external wall, or if two such cross walls occur within a length of 24 feet of such wall, then such external wall may be built of the thickness of 13 inches, of any height not exceeding 18 feet, within any story, although the rate of the wall may require a greater thickness ; but always upon condition that the substructure of such wall is 4 inches thicker at the least than such super- structure, and vertically under it. And also if any such wall be abutted by cross or return walls within a length of 12 feet, and if not more than one aperture Cx 2 123 Schedules. 124 Schedules. The Metropolitan Buildings Act. SCHEDULE (D.) — Part I. — continued. or recess occur within such length of 12 feet, and not more than one-half the quantity in length be taken out of such compartment of a wall by any such aperture or recess, then such external wall may be built of any thickness not less than 13 inches, notwithstanding the rate of such wall may require a greater thickness. SCHEDULE (D.) Part II. — External Walls. Construction and Materials. And with regard to the component materials of external walls to buildings of whatever class, — Every such wall must be built of sound bricks or of stone, or of such bricks and stone together, laid in and with mortar or cement in such manner as to produce solid work ; and every such wall must be carried up of its full thickness to the under- side of the plate under the roof. Nevertheless, in such walls, besides all requisite openings for doors and windows, recesses may be formed ; so that the back (hereof be of the thickness of eight inches and a half at the least ; and so that the stability and sufficiency of the wall be not injuriously affected by making such recesses. And w-ith regard to other substances than the component materials of external walls, — There may be such wood and iron as shall be necessary. And every plate, lintel, bond, corbel, being of wood, and every wood-brick laid into any external wall, and all ends of joists, of girders, and of the heads and sills of partitions running into any external wall, must be fixed at a distance from the external face of the wall of four inches at the least. And the frames of doors and windows must be fixed in reveals at a distance from the external face of the wall of four inches at the least. And shop-fronts must be fixed in such manner as is herein specially directed. And the tiers of door-cases to warehouses must be fixed in the openings left in such walls, at a distance from the external face of the wall of two inches at the least. But no timber must be laid into any external wall in such manner, or of such length, as to render the part of the wall above it wholly, or in great part, dependent upon the wood for support, 7 & 8 VicT. Cap. 84. 125 Schedules. SCHEDULE (D.) — Part II. — continued. or so that any such wood might not be withdrawn without endangering the safety of the superincumbent structure, ex- cept in the case of brestsummers. Height and Thickness of Parapets. And with regard to external walls, in reference to the height and thickness of any parapet thereon, — If an external wall adjoin a gutter, — then such external wall must be carried up, and remain one foot at the least above the highest part of such gutter. And the thickness of an external wall, so carried up above the level of the underside of the gutter-plate, and forming a parapet, must be at the least, — In every such wall of the extra first rate of the first class, and in every such wall of the first rate of the second class, 13 inches thick ; and — In every other external wall of whatever rate or whichever class, 8 j inches thick. Brestsummers. With regard to every brestsummer fixed to carry any front wall of a building, — If such brestsummer have a bearing at one end upon a party-wall, — then it must be laid upon a template or corbel of stone or iron, which template or corbel must be tailed through such wall at least two-thirds of the thickness thereof ; and the end of such brestsummer must not be fixed into, and must not have its bearing solely upon such party-wall, but must be supported by a sufficient pier built of brick or stone, or by an iron column, or iron or timber story-post fixed on a solid foundation. And if any such brestsummer have its bearing at each end upon a party-wall, — then it must be supported by at least two suffi- cient piers built of brick or stone, or by iron columns or by iron or timber story-posts fixed on solid foundations, and standing within and clear of the party-walls. Or any such brestsummer may bear upon constructed returns in the direction of the length of the brestsummer of four inches at the least, coursed and bonded with the substance of the party-wall or party-walls ; and such constructed returns must be increased one inch, at the least, for every six feet in length that the brestsummer may be otherwise unsupported. And if the height of the under-side of any brestsummer, laid from party-wall to party-wall to carry any external w’all, exceed 15 feet from the surface of the public foot-pavement in front of the building, — then there must be constructed returns in the direction of the length of the brestsummer from the 126 Schedules. The Metropolitan Buildings Act. SCHEDULE (D.) — Part II. — continued. inside of each party-wall of 8^ inches at the least, and at the least of the full thickness of such brestsuramer ; and every such return must be increased one inch at the least for every foot or part of a foot the brestsummer may be in height from the surface of the public foot-pavement more than 16 feet, whether the brestsummer be otherwise supported or not. Materials to be used in Repairs. And with regard to old external walls or other external inclosures of any building already built, in reference to materials to be used in the repair thereof, — If any such wall or inclosure be not built of the materials re- quired by this Act for external walls or other external inclo- sures hereafter to be built, — then every part of such wall or other external inclosure, (except the inclosure of roofs, and the flats, gutters, dormers, turrets, lantern-lights and other erections thereon,) may be at all times thereafter repaired with materials of the same sort as those of which such external wall or inclosure has been already built. Materials to he used in Rebuilding. But if any such external wall or inclosure be at any time here- after taken down or otherwise demolished for the height of one story, or for a space equal to one-fourth of the whole surface of such external wall, — then every part thereof, not built in the manner and of the several materials by this Act directed for external walls, must be taken down ; and the same must be rebuilt in such manner, and of such materials, and in all respects as by this Act directed for external walls hereafter to be built, according to the class and rate of the building to which such external wall or inclosure shall belong. External Wall used as a Party -wall. And with regard to external walls to be used as party-walls to any building adjoining thereto, (except an attached building or office as is hereinbefore described), — If the external wall of any building have not such footings, or be not of such heights and thicknesses, or be not built in such manner and of such materials as are herein directed for party- walls of buildings of the highest rate to which such wall shall adjoin, — then such external wall must not be used as a party- wall for any such building ; but there must be a distinct external wall built as herein described for external walls, of the rate to which it shall belong. But if such external wall to any building already built be at the 7 & 8 VicT. Cap. 84. SCHEDULE (D.)~Part ll.— continued. least 13 inches in thickness, in every part, and he of sound and proper materials and in good condition, — then such wall may be used as a party wall ; but if the house of which such wall forms apart be rebuilt within five years from the time at which the wall shall have been so first used as a party-wall, — then such wall must become subject to the provisions of this Act in respect of party-walls, according to the class and rate to which the said wall did first belong. SCHEDULE (D.) Part III. — Party-walls. Division of Buildings. And with regard to walls used to divide single buildings into two or more, — If it be intended to divide any building into two or more distinct parts, — then every wall for that purpose must be built as a party-wall, in the manner and of the materials, and of the several heights and thicknesses for party-walls of the highest rate of building to which such party-wall shall belong or adjoin, as prescribed in reference to the thicknesses of party- walls in Schedule (C.) And if any building already built or which shall be hereafter built, be converted, used or occupied as two or more separate buildings, each having a separate entrance and staircase, then every such building shall be deemed to be two or more separate houses, and such separate houses must be divided from each other by a party-wall or party arch or arches, built in the manner and of the materials required for party-walls, or for party-arches, for the class and rate to which the largest of the buildings so divided shall belong. Site of Walls. With regard to party-walls, in reference to the site thereof, — If the buildings be of equal rate, — then such party-wall must be built on the line of junction of such buildings, one-half on the ground of the owner of one of such buildings, and one-half on the ground of the owner of the other of such buildings. If such buildings be of different rates, — then such wall must be built on the line of junction thereof, as follows; that is to say, one- half of the thickness of the wall required for the building of the 127 Schedules. 128 Schedules. The Metropolitan Buildings Act. SCHEDULE (D.) — Part III. — continued. lower rate, on the ground of each of the adjoining owners ; and the w'hole of the additional thickness of the wall required for the building of the higher rate, on the ground of the owner of such building of the higher rate. And if such building of the lower rate be thereafter enlarged or altered, so as to become a building of a higher rate, — then the owner of such first-mentioned building of the higher rate, for the time being, shall be entitled to receive from the owner of such building of the lower rate, such sum of money as shall be a sufficient compensation for the ground occupied by that por- tion of the party-wall, which, according to the rate of the build- ing enlarged, ought to have been built by its owner on his own ground, as well as the value of so much of the wall itself as may be more than the owner of such building of the lower rate had already paid for. Construction and Materials. And with regard to party-walls, in reference to the component materials thereof, — Every part of such party-wall must be built of sound bricks or of stone, or of such bricks and stone together, laid in and with mortar or cement, in such manner as to produce solid work. And as to the wood work which it may be desired to connect with the party-walls of any building, — The bearing ends of wooden beams, brestsummers, girders, trimming joists, and the ends of partition-heads and sills, and the bearing ends of the main timbers of a roof, and wood-bricks, may be laid into the sub- stance of a party-wall ; but no such beam, brestsummer, girder, joist, partition-head or sill, nor any part of a roof being wood, nor any wood-bricks, must be laid or placed within four inches of the centre of any party- wall ; — and no other wood- work of any kind must be laid into, placed upon, or be run or driven into any part of the substance of any party-wall. But if the ends of timbers be carried on iron shoes or stone cor- bels, then such iron shoes or stone corbels must be built into the wall at the least one-half of the thickness of such wall. And the top of every such party-wall must be finished with one course of sound stock-bricks, set on edge with good cement, or by a coping of any other properly secured and sufficient water- proof and fireproof covering. Height of Party-walls above Roof. And with regard to party-walls, in reference to the height thereof, — If a party-wall adjoin to any roof, — then such party-wall must be carried up and remain one foot six inches at the least above the 7 & 8 V"iCT. Cap. 84. SCHEDULE (D.) — Part III. — continued. part where the party- wall and roof adjoin, measured at a right angle with the back of the rafters of such roof. And if any party-wall in any building of the first class adjoin a gutter, — then such party-wall must be carried up, and remain two feet at the least above the highest part of any such gutter. And if any party-wall in any building of the second class adjoin a gutter, — then such party-wall must be carried up, and remain three feet at the least above the highest part of any such gutter. If there be fixed within five feet of a party-wall, upon the flat or roof of the building, any turret, dormer, lantern-light or other erection, of combustible materials, — then every such party-wall must be carried up next to every such turret, dormer, lantern- light or other erection, and must extend one foot six inches higher, and one foot six inches wider than any such erection on each side thereof. Openings in Party-walls. And for the purpose of regulating the making of openings through any party-wall between one dwelling-house and another, whereby two or more dwelling-houses shall be united. With regard to any dwelling-houses of any rate, such dwelling- houses may be united by means of openings in the party- walls. But with regard to any such dwelling-houses which when so united will contain more than fourteen squares, — If such dwelling-houses shall be and continue to be in the same occupation, then, upon its being declared by the official refe- rees that in their opinion the stability and security from fire of any or either of such dwelling-houses will not be endangered by making such openings, they may be made accordingly. Recesses and Chases. And further, with regard to any party-wall, as to recesses, and as to chases in such wall, — In every story recesses may be formed, but only with the consent and authority of the official referees first had and obtained, and so that such recesses be arched over, and so that the back of any such recess be not nearer than seven inches to the centre of the party-wall in the first or lowest story, nor nearer than four inches to the centre of the party-wall in any other story, and so that the stability and sufficiency of such party-wall be not injuriously affected thereby. If any chases be required for the insertion of ends of walls, of piers, of chimney-jambs, of withes of flues, of metal pipes, or of iron story-posts, — then every chase for any such purpose must not be left or be cut nearer than four inches at the least to the centre of a party-wall, nor within a distance of nine inches at the least from any front or back wall, and no two G 3 129 Schedules. 130 Schedules The Metropolitan Buildings Act. SCHEDULE (D.)— Part III.— continued. such chases must be made within a distance of seven feet six inches at the least from each other on the same side of a wall, and no such chase must be formed wider than nine inches. SCHEDULE (D.) Part IV. — Party-walls, and Party-arches be- tween INTERMIXED PROPERTY. And with regard to any building already built, having rooms or floors, the property of different owners, which lie intermixed, without being separated by any party-wall or party-arch or stone floor, — If any such Wilding be altogether rebuilt, or to the extent of one-fourth of the cubical contents thereof, — then such inter- mixed properties must be separated from each other as follows : If they adjoin vertically, — then so far as they adjoin vertically, they must be separated by a party-wall. If they adjoin horizontally, — then so far as they adjoin horizon- tally, they must be separated either by a floor formed of brick, tile, stone or other proper and sufficient incombustible mate- rials, subject to the consent of the official referees, or by a floor formed of iron-girders and brick-arches or stone-landings, or tiles, or by a party-arch or party-arches of brick or stone of the thickness of nine inches at the least, if the span do not ex- ceed nine feet, and thirteen inches at the least if the span exceed nine feet ; and such floor or party-arch or party-arches must be built with sufficient abutments and in a suflSicient manner. SCHEDULE (D.) Part V. — Buildings over Public Ways. And with regard to buildings extending over any public way, .as to the part thereof which extends over such way, so far as relates to the separation of such part from such public way, — If such part be rebuilt, then it must be separated from such public way, either by a floor or arch formed of brick or stone, or of other incombustible materials, subject to the consent of the official referees, or by a floor formed of iron-girders and brick-arches or stone-landings, or by an arch formed of brick or of stone ; which arch, if the span thereof do not exceed nine feet, must be of the thickness of nine inches at the least, and 7 & 8 ViCT. Cap. 84. SCHEDULE (D.) — Part V. — continued. , which, if the span exceed nine feet, must be of the thickness of thirteen inches at the least. And such floor or arch, with its abutments, must be built in such manner as shall be approved of by the surveyor ; but there must not be formed over any public way a ceiling of lath and plaster, or of lath and cement. SCHEDULE (E.) — (see Sec. 5.) Rules concerning external Projections. Porticoes ‘projected over Public Ways. And with regard to the portico or porticoes of any church, chapel, theatre or other public building of the third class, — If the building of the same shall have been previously sanctioned by the official referees, by writing under their hands, and if objection be not made hy any party interested within one month thereafter, and if, upon such objection or appeal, her Majesty’s principal secretary of state acting for the home department, do not decide in favour thereof, — then such pro- jections may be built over the foot pavement of any street or alley which shall be fifty feet wide at the least (notwithstanding any act heretofore passed to the contrary.) Projections from Pace-walls^ ^c. And further, with regard to buildings hereafter to be built oi rebuilt, in reference to projections therefrom, — As to copings, parapets, cornices to overhanging roofs, blocking- courses, cornices, piers, columns,' pilasters, entablatures, facias, door and window dressings, or other architectural decorations, forming part of an external wall, — all such may project beyond the general line of fronts in any street or alley, but they must be built of the same materials as are by this Act directed to be used for building the external walls to which such projections belong, or of such other proper and sufficient materials as the official referees may approve and permit. And as to all balconies, verandahs, porches, porticoes, shop- fronts, open inclosures of open areas, and steps, and water- pipes, and to all other projections front external walls not forming part thereof, — every such projection (except such part of shop-fronts, and the frames and sashes of the windows and doors, in reference to the necessary wood- work thereof), may stand beyond the general line of fronts in any street or alley, but they must be built of brick, tile, stone, artificial • stone, slate, cement or metal, or other proper and sufficient . fire-proof materials ; and they must be so built as not to 131 Schedules. 132 Schedules. The Metropolitan Buildings Act. SCHEDUDE (E.) — continued. overhang the ground belonging to any other owner, and so as to obstruct the light and air, or be otherwise injurious to the owners or occupiers of the buildings adjoining thereto, on any side thereof. Projections from Walls of Buildings over Public Ways. And with regard to all buildings hereafter to be built or rebuilt, in reference to projections from the walls of such buildings, including steps, cellar doors and area inclosures, — The walls of all such buildings must be set back, so that all projections therefrom, and also all steps, cellar doors and area inclosures, shall only overhang or occupy the ground of the owner of such building, without overhanging or encroaching upon any public wayc Projected Buildings beyond the general Line of Buildings and from other external Walls. And with regard to buildings already built or hereafter to be rebuilt, as to bow windows or other projections of any kind, — Such projections must neither be built with, nor be added to any building on any face of an external wall thereof, so as to extend beyond the general line of the fronts of the houses (which general line may be determined by the surveyor), except so far as is hereinbefore provided with regard to porticoes projected over public ways, and with regard to projections from face- walls and shop-fronts ; nor so as to overhang the ground belonging to any other owner ; nor so as to obstruct the light and air, or be otherwise injurious to the owners or occupiers of the buildings adjoining thereto, on any side thereof. Projections from insulated Buildings. Provided always, with regard to any insulated buildings, that if the projections be at the least 8 feet from any public way, and if they be at least 20 feet from any other building not in the same occupation, — then such projections are excepted from the rules and directions of this Act. Wooden Shop Fronts and Shutters. And with regard to shop-fronts and their entablatures, their shutters and pilasters and stallboards, made of wood, — If the street or alley in which such front is situate be of less width than 30 feet, — then no part of such shop-front must be higher, in any part thereof, than 15 feet; nor must any part, except the cornice, project from the face of a wall, whether there be an area or not, more than five inches; 7 & 8 VicT. Cap. 84. 133 Schedules. SCHEDULE (E.) — continued. nor must the cornice project therefrom more than 13 inches. If the street or alley be of a greater width than 30 feet, — then no part of such shop-front, except the cornice, must project from the face of a wall, whether there be an area or not, more than 10 inches ; nor must the cornice project therefrom more than 18 inches. And the width of such street or alley must be ascertained by measuring the same, as hereinafter directed with regard to the widths of streets and alleys. And the wood-work of any shop-front must not be fixed nearer than inches to the centre line of a party-wall. And with regard to such w’ood-work, if it be put up at such dis- tance of 4^ inches, then a pier or corbel built of stone or of brick or other incombustible material, and of the width of 4^ inches at the least, must be fixed in the line of the party-wall, so as to be as high as such wood-work, and so as to project one inch at the least in front of the face thereof. And the height of every shop-front must be ascertained by measuring from the level of the public foot-pavement in front of the building. And every sign or notice-board fixed against or upon any part of any house, or other building standing close to any public way, must be so fixed that the top shall be within 18 feet at the most above the level of such public way. SCHEDULE (F.)—{see Sec. 5.) Rules concerning Chimneys hereafter built or rebuilt. Construction. With regard to chimneys and chimney stacks, except angle chimneys, in reference to the construction thereof, — The foundations and footings of every such chimney and chimney stack must be built similar to those of the wall in or adjoining to which it shall be. And every such chimney and chimney stack must be built from the foundation to the top thereof without any corbelling over, whereby any upper part of the brick-work of such chimney or chimney stack shall overhang any lower part of the brick- work on the front thereof. Nevertheless, with regard to buildings of the first rate and extra first rate, — the jambs, breast and flue of any single chimney may be built upon brick, stone, or iron corbels, above the ceiling of the third story of every such building. And with regard to buildings of the second and third rates, — the jambs, breast and flue in any single chimney may be 134 Schedules. The Metropolitan Buildings Act. SCHEDULE {Y.)— continued. built upon brick, stone or iron corbels, above the ceiling of the second story of every such building. But the projection both of such jambs and breast, must not in any case exceed nine inches before the face of the vrall or stack to which the same shall adjoin. And with regard to angle chimneys, such chimneys may be built in the internal angle of any building, so that the width of the breast thereof do not exceed five feet ; and so that it be properly sup- ported on iron-girders, with brick-arches, or on strong stone- landings, not less than four inches thick, and tailed at least nine inches into each of the two walls forming such angle. Dimensions and Materials. And with regard to chimneys, in reference to the dimensions of the jambs thereof, — The jambs of every chimney must not be less than 8-j inches wide on each side of such opening. And with regard to chimneys and flues, in reference to the thick- ness of the brick-work thereof, — The breast of every chimney, and the front, back, withe or par- tition, of every flue, must be at the least 4 inches in thickness of sound bricks, properly bonded, and the joints of the work must be filled in with good mortar or cement, and all the inside thereof, and also the outside or face thereof, next the interior of any building must be rendered or pargetted. And with regard to flues, in reference to the dimensions thereof — no flue may be used for a smoke flue which is of less internal diameter in any section than 8^ inches. Timber or Wood-work. And with regard to chimneys, in reference to timber, — No timber must be placed over any opening for supporting the breast of any chimney ; but there must be an arch of brick or stone over the opening of every such chimney, to support the breasts thereof ; and an iron bar or bars must be built into the jambs, at the least nine inches on each side, to tie in the abut- ments whenever the breast projects more than 44 inches from the face of the wall, and the jamb on either side is of less width than two-thirds of the opening. And no timber or wood-work must be placed or laid in any wall under any chimney opening within 18 inches at the least of the surface of the hearth to the fire-place of such chimney opening. And as to any timber or wood-work, in reference to the fixing thereof in or against any wall containing flues or against any chimney-breast or chimney-jarab, — If timber or wood work be affixed to the front of any jamb or mantel, or to the front or back of any chimney or flue, — then 7 & 8 VicT. Cat. 84. SCHEDULE (F.) — continued. it must be fixed by iron nails or holdfasts, or other iron fastenings, which must not be or be driven nearer than four inches to the inside of any flue or to the opening of any chim- ney, and such timber or wood-work must not be nearer than nine inches to the opening of any chimney. And no timber must be laid or placed within three inches of the face or breast, back, side or jamb of any flue, or of any chimney- opening where the substance of brick-work or stone-work shall be less than 8^ inches thick, nor must any flooring-board, batten, ground skirting, or other lining or fitting of wood, nor any wood staircase, nor any thing else of wood, be fixed or placed against, or near to the face or breast, back, side or jamb, of any flue, fire-place, or chimney opening, unless and until the brick or stone- work constituting the same shall have been thoroughly and efficiently rendered or pargetted with proper mortar or stucco, and such rendering must be in every case in addition to four inches at least of solid fire-proof structure. Slabs and Hearths^ And a slab or slabs of brick, tile, stone, slate, marble or other proper and sufficient substance, at the least 12 inches longer than the opening of every chimney when finished, and at the least 18 inches in front of the arch over the same, must be laid before the opening of every chimney. And in every floor, except the lowest floor, such slab or slabs must be laid wholly upon stone or iron bearers, or upon brick trimmers, but in the lowest floor, they may be laid on a brick fender, or bedded on the solid ground. And the hearth of every chimney must be laid and bedded wholly on brick or stone, or other incombustible substance, which must be solid for a thickness of nine inches at the least, beneath the surface of any such hearth. Backs. And as to the back of every chimney-opening of every building (except backs of chimneys in the lowest story of buildings of the fourth rate), — every such back, in the lowest story, must be at the least 13 inches thick from the hearth to the height of 12 inches above the mantel, and in every other story, at the least 85 inches thick up to the same relative height. And as to the backs of chimney-openings in the lowest story of buildings of the fourth rate, — such backs must be at the least 8^ inches thick, to the height of 12 inches at the least above the level of the mantle : Provided always, that if the chimney be built in any wall, not being a party wall, — then the back of every such chimney- opening may be 4^ inches less than the several thicknesses above described. 135 Schedules. 136 Schedules. The Metropolitan Buildings Act, SCHEDULE (F.) — continued. Chwiney -openings back to hack. And as to backs of all such chimney-openings, — If two chimneys be built back to back, — then the thickness between the same must be at the least of the thickness hereinbefore described for the back of one chimney-opening. Angles of Flues. And as to all flues, in reference to the angles thereof, — If any flue be built with sufticient openings in it of not less size than nine inches square, and proper close iron doors and frames inserted in such openings, so that every part of such flue may be swept by machinery, — then every angle in such flue may be of any degree. But if it be not so built, — then every such angle must be 135 degrees at the least. And every salient or projecting angle within a flue must be rounded off four inches at the least, and protected by a rounded stone, or iron bar. Close Fires. And as to every oven, furnace, cokel or close fire, used for the purpose of trade or manufacture, — it must be six inches at the least distant from any party-wall, and must not be upon nor within a distance of 18 inches of any timber or wood work. And the floor on or above which such oven, furnace, cokel or close fire shall be built or fixed, must be formed and paved under, and for a distance of two feet all round the same, with stone, brick, tile or slate at the least two inches thick, or other proper incombustible and non-conducting materials. Chimney Shafts. And as to chimney-shafts or flues, — Every chimney-shaft or flue hereafter built, raised or repaired, must be carried up in brick or stone work all round, at least four inches thick, to a height of not less than three feet above the highest part of such portion of the roof, flat or gutter adjoining thereto, measured at the point of junction. And as to any chimney-shaft, (except that of a steam-engine, brewery, distillery or manufactory) — the brick or stone w'ork of such shaft or flue must not be built higher than eight feet above the slope, flat, or gutter, of the roof which it adjoins, measured from the highest point of junction, unless such chimney-shaft be built of increased thickness, or be built with and bonded to, another chimney-shaft, or be otherwise rendered secure. 7 & 8 VicT. Cap. 84. SCHEDULE (F.) — continued. And as to the chimney-shaft for the boiler furnaces of any steam- engine, or for any brewery, distillery or manufactory, — such shaft may be erected of any height, so that it be built in such manner, and of such strength and dimensions, as shall be satisfactory to the official referees, upon special application in each case. Chimney -PotSy Tubes , §*c. And as to earthen or metal chimney-pots, tubes, funnels, or cowls of any description whatsoever, — if such pot, tube, funnel or cowl, be higher than four feet above the brick or stone work of the flue on which the same shall be placed, then it must be fixed two feet at the least into the brick or stone work of the flue on which it shall be placed. Smoke Pipes. And as to any metal or other pipe or funnel for conveying smoke, heated air, or steam, in reference to the position thereof, — such pipe or funnel must not be fixed against or in front of any face of any building in any street or alley, nor on the inside of any building nearer than fourteen inches to any timber or other combustible material. Cuttings into Chimneys. And as to every chimney-shaft, jamb, breast or flue already built, or which shall be hereafter built, in reference to cutting the same, — no such erection shall be cut into for any other purpose than the repair thereof, or for the formation of soot-doors, or for letting in, removing, or altering, stove-pipes or smoke- jacks, except as directed for building an external wall against an old sound party-wall. SCHEDULE (G.)~ (see Sec. 5.) Rules concerning Roof Coverings. Materials. With regard to roof coverings, in reference to the materials thereof, — If the external parts of any roof, flat, or gutter of any building, or of any projection therefrom, and of any turret, dormer, lantern-light and other erection on the roof or flat of any 137 Schedules. 138 Schedules. The Metropolitan Buildings Act, SCHEDULE (G.) — continued. building, be hereafter built or rebuilt, stripped, ripped or uncovered, — then every such part (except the door-frames and doors, window-frames and sashes of such turrets, dormers, lantern-lights, or other erections) must be covered with slates, tiles, metal, glass, artificial stone or cement, and such excepted parts may be made of such wood as shall be necessary. Rain-water Pipes, And with regard to the roof, flat and gutter of any building, and of any projection therefrom, and also balconies, verandahs and shop-fronts, — they must be so arranged and constructed, and so supplied with gutters and pipes, as to prevent the water therefrom dropping on to, or running over, any public w'ay. SCHEDULE (H.)— (see Sec. 5 & 51.) Rules concerning Drains to Buildings hereafter built. Drains into Sewers, AVith regard to the drains of buildings of any class, and of every addition thereto, — Before the several walls of any such building shall have been built to the height of 10 feet from their foundations the drains thereof must have been properly built and made good, (that is to say) if there be within 100 feet from any front of the building, or from the enclosure about the building, a common sewer into which it is lawful and practicable to drain, — then into such common sewer ; and if there be not in such situation and within such distance any such common sewer, — then to the best outlet that can be obtained, so as to render, in either case, such drains available for the drainage of the lowest floor of such building, or addition thereto, and also of its areas, water- closets, privies and offices (if any). And the inside of the main drains under and from every building for carrying off soil must be in transverse section, at the least equal to a circular area at least nine inches in diameter. And every such drain must be laid to a fall or current of, at the least, half an inch to ten feet, and so as that the whole of every such drain within the walls of such building, shall be wholly covered over under the lowest floor, and independently thereof. And every such drain within the walls of such building must be built and covered over with brick, stone or slate, and so as to render the drain air-tight. And every part of such drain, inside and outside the walls of 7 & 8 ViCT. Cap. 84. SCHEDULE {Yi.)— continued. every building must be built of brick, tile, stone or slate, set in mortar or cement. Cesspools and Privies. And with regard to cesspools and privies, — If there be a common sewer within 50 feet from any front of, or from the enclosure about, any house or other building, — then a cesspool must not be made for the reception of drainage from such house or other building, unless there be, or shall be built, a good and sufficient drain from such cesspool to such common sewer. And if any cesspool be built under a house or other building, — then such cesspool must be built air-tight. And every privy built in the yard or area of any building, or under any street or alley, must have a door, and be otherwise properly inclosed, screened and fenced from public view. SCHEDULE (L)— (see Sec. 5 & 52.) Rules concerning Streets and Alleys hereafter formed. Width. With regard to every such street or alley, hereafter to be formed, in reference to the width thereof, — every street or alley must be of, at the least, the following width, from front to front, in every part thereof respectively ; that is to say, — Every street (excepting any mews) must be of the width of 40 feet at the least ; but if the buildings fronting any street be more than 40 feet high from the level of the street, — then such street must be of a width equal, at the least, to the height of the buildings above such level. Every alley and every mews must be of the width of 20 feet at the least ; but if the buildings fronting any alley, or to any mews, be more than 20 feet high from the level of the alley or mews, — then such alley or mews must be of a width equal, at the least, to the height of the buildings above such level. ✓ Entrances to Alleys. And with regard to every such alley in reference to the entrance thereof, — every alley must have two entrances thereto, each being, at the least, of the full width of the alley, and one of the two, at the least, open from the ground upwards. 139 Schedules. 140 Schedules, The Metropolitan Buildings Act, SCHEDULE a.)— continued. Measurement of Width. And with regard both to such streets and alleys, — the aforesaid width is to be ascertained by measuring (at right angles to the course thereof), from front to front of the buildings on each side of such street or alley. SCHEDULE {li.)-{see Sec. 5 & 53.) Rules concerning Dwelling-houses hereafter built or re- built, with regard to Back-yards and Areas, and Rooms under-ground, and in the roof. Back-yards, With regard to back-yards or open spaces attached to dwelling- houses, — Every house, hereafter built or rebuilt, must have an inclosed back-yard or open space of, at the least, one square, ex- clusive of any building thereon, unless all the rooms of such house can be lighted and ventilated from the street, or from an area of the extent of, at the least, three- quarters of a square, above the level of the second story, into which the owner of the house to be rebuilt is entitled to open windows for every room adjoining thereto. And if any house already built, be hereafter rebuilt, — then, unless all the rooms of such house can be lighted and ventilated from the street, or from an area of the extent of, at the least, three-quarters of a square, into which the owner of the house to be rebuilt is entitled to open windows for every room adjoining thereto, there must be, above the level of the floor of the third story, an open space of at least three-quarters of a square. And with regard to every building of the first class, — Every such building must be built with some roadway, either to it, or to the enclosure about it, of such width as will admit to one of its fronts of the access of a scavenger’s cart, of the ordinary size of such carts. Lowermost Rooms. And with regard to the lowermost rooms of houses being rooms of which the surface of the floor is more than three feet below the surface of the footway of the nearest street or alley, and to cellars of buildings hereafter to be built or rebuilt, — 7 & 8 VicT. Cap. 84. SCHEDULE {K.)— continued. If any such room or cellar be used or intended to be used as a separate dwelling, — then the floor thereof must not be below the surface or level of the ground immediately adjoining thereto, unless it have an area, fire-place and window as required for rooms and cellars of existing buildings let separately and used as a separate dwelling, and unless it be properly drained. And with regard to every such lowermost-room or cellar in any existing building used or intended to be used as a separate dwelling, — There must be an area not less than three feet wide in every part, from six inches below the floor of such room or cellar to the surface or level of the ground adjoining to the front, back or external side thereof, and extending the full length of such side. And such area, to the extent of at least five feet long and two feet six inches wide, must be in front of the window of such room or cellar, and must be open, or covered only with open iron gratings. And there must be made for every such room or cellar an open fire-place, with proper flue therefrom. And there must be a window-opening of, at the least, nine super- ficial feet in area ; which window-opening must be fitted with a frame filled in with glazed sashes, of which, at the least, four-and-a-half superficial feet must be made to open for ventilation. k Attic Rooms. And with regard to rooms in the roof of any building hereafter built or rebuilt, in reference to the number of floors of rooms in the roof, and to the height of such rooms, — there must not be more than one floor of such rooms, and such rooms must not be of a less height than seven feet, except the sloping part, if any, of such roof, which sloping part must not begin at less than three feet six inches above the floor, nor extend more than three feet six inches on the ceiling of such room. Rooms in other Parts. And with regard to rooms in other parts of the building, in refer- ence to the height thereof, — every room used or intended to be used as a separate dwelling must be of, at the least, the height of seven feet from the floor to the ceiling. 141 Schedules. 142 The Metropolitan Buildings Act, SCHEDULE (L.) List of Fees payable to the Surveyors under this Act. Fees for New Buildings. For any building erected on old or new foundations, as follows : — If the building be of the 1st rate Ditto extra 1st ditto Ditto . 2d ditto Ditto . 3d ditto If the building be of the 4 th rate, and contain more than two stories If the building be of the 4 th rate, and do not contain more than two stories And with regard to buildings of the, warehouse class, a further fee to be paid in respect of any additional 200,000 cubic feet, or portion of 200,000 cubic feet, in any such building, beyond the first 200,000 cubic feet . . . . . And for inspecting and reporting to the official referees (s. 24) on party- walls and intermixed buildings, — If the building be of the 1st rate Ditto extra 1st ditto Ditto . 2d ditto Ditto . 3d ditto If the building be of the 4th rate, and contain more than two stories If the building be of the 4th rate, and do not contain more thantwo stories For every insulated building For every detached building built for the purposes of trade or collection of tolls ....... For every attached or detached building, distinctly rated (except any such attached or detached building, built at the same time as the building to which it belongs, and carried up and covered in within twenty-one days after such building shall have been covered in within the meaning of this Act,) such fee as is hereby imposed in respect of additions to, or alterations of, buildings of the rate to which such attached or detached build- ings shall belong. Fee for Additions or Alterations. For every addition or alteration made to any building (after the roof thereof shall have been covered in), which shall involve Dwelling- Warehouse PublicBuild- HouseClass. Class. ings Class. — - ■ . £. s. d. £. s. d. £. s. d. 3 10 0 3 10 0 3 10 0 5 5 0 , , 5 5 0 3 3 0 3 3 0 3 3 0 2 10 0 2 10 0 2 10 0 2 2 0 2 2 0 2 2 0 1 10 0 ! i i 1 2 2 0 C - - equal j to one-half J of the j above fees 1 respec- Ltively. 1 10 0 1 1 j 3 10 0 3 10 0 3 10 0 5 5 0 , 5 5 0 3 3 0 3 3 0 3 3 0 2 10 0 2 10 0 2 10 0 i 2 2 0 2 2 0 2 2 0 1 10 0 2 2 0 1 10 0 1 1 0 1 1 0 1 1 0 105 . &d. 7 & 8 VicT. Cap. 84. 143 SCHEDULE (L.) — continued. Schedules. the execution of works subject to the regulations of this Act, the following fees ; that is to say, — If the building be of the 1st rate . 1 15 0 Ditto extra 1st ditto . . 2 10 0 Ditto . . 2d ditto . .110 0 Ditto . . 3d ditto . .15 0 If the building be of the 4th rate, and con- tain more than two stories . . . 0 15 0 If the building be of the 4th rate, and do not contain more than two stories . . 0 10 0 And with regard to buildings of the warehouse class, a further fee, equal to one half of the above fees respectively, to be paid in respect of every additional 200,000 cubic feet, or any por- tion of 200,000 cubic feet, in any such building beyond the first 200,000 cubic feet. Fees for special Duties. For the following special duties performed by any surveyor, according to the enactments of this Act, where such duties shall not be performed incidentally to the building or rebuild- ing of, or adding to or altering, any building in respect of which any other fees may be payable ; that is to say — For attending to the cutting away of chimney-breasts for ex- ternal walls, — If the building be of the 1st rate . ^330 Ditto . extra 1st ditto . .330 Ditto . . 2d ditto . . 1 Ditto . . 3d ditto . . J If the building be of the 4th rate, and contain more than two stories .... If the building be of the 4th rate, and do not contain more than two stories . . 0 10 6 For condemning party-fence-walls . . . 0 10 6 For the inspection and removal of projections and ruinous buildings . . . .0100 For surveying party-walls not kept in repair, and consenting to notice of repair being served 0 10 0 For inspecting arches or stone floors over pub- lic ways . . . . . . 0 10 0 For inspecting formation of openings in party- walls . . . . . . . 0 10 0 2 2 0 1 1 0 Fees for special Services not expressly provided for. For any service performed by any surveyor which is required by this Act, but not comprehended under any of the foregoing heads, — Such fee, not exceeding 21., as the official referees shall by writing under their hands order and appoint, with the consent of the commissioners of works and buildings. 144 The Metropolitan Buildings Act. SCHE- METROPOLITAN SUMMARY of PROCEEDINGS to be taken or observed f I Sect, of the Act. Stages of Proceeding. Steps to be taken. By whom taken. WORKS OENERALLV. 13. Before commencing the operations sp*- cifled in this section. Two days’ notice to be given . The builder. See De- finition. 8 . 13. 13. 13. 14. Before resuming operations, after being suspended for a period exceeding three months. On change of architect, master builder, or other superintendent. On the occurrence of any irregularity in building operations. Two days’ notice to be given . Two days’ notice to be given . 48 hours’ notice to be given . The builder. See De- finition. s. 13. The builder. See De- finition. s. 13. The district surveyor. 37. As to openings hereafter made in ex- ternal walls abutting on adjoining ground or buildings. Notice to stop up within one month. Adjoining owner. SPECIAL SaPERVTSION. 15. On completion of the carcass of a build- ing subject to special supervision. Notice for inspection thereof . The architect or builder. 15. On completion of amendments, or the entire completion of a building, sub- ject to special supervision. Notice relative thereto . The architect or builder. PARTy-WALLS, &c. 20, 21 , 24. 25. 24. Before survey, repair, or pulling down of a party-wall, party-arch, or party- fcnce-wall. In the same case Three months’ notice before operations. Notice for survey . The building-owner. See Definition, s. 13. The building-owner. See Definition, s. 13. ,, In the same case Appointment of survey . > The district surveyor . 33, 34. As to pulling down rooms in Intermixed property, and repairing or rebuild- ing party-fence-walls. In the same case Notice of intention to build a party-wall, or as directed by official referees. Notice for inspection thereof . The building-owner . The building-owner . ,, In the same case Appointment of survey . The district surveyor . 26. 2S. 38. 38. As to pulling down a timber partition, and erecting or raising a party-wall. Excavation against existing party-wall for a deeper story, and for the erection of an external wall. Building a party-wall on line of junc- tion of two pieces of vacant ground. In the same case . . Three months’ notice of inten- tion to build or raise a party- wall. One month’s notice of inten- tion to cut away footings or breast or shaft of a party- wall. One month’s notice for consent .of adjoining owner. Notice of consent . . . The building-ow ner . The building-owner . The building-owner . The adjoining owner . MODIFICATIONS. 22, 23. Modification or delay of intended work to suit adjoining owner. Seven days’ notice for consent . The adjoining owner . In the same case . . . Application for decision The adjoining owner . In the same case . Notice of application The adjoining owner . 7 & 8 ViCT. Cap. 84. DULE (M.) BUILDINGS ACT. before and after NOTICES in relation to BUILDINGS. 145 With reference to whom taken. Form of Notice to be given. Place of Notice. Subsequent Proceedings. 1 The district surveyor . No. 1. At the district surveyor's £20 penalty for neglect. Existing office. buildings altered, &c. without notice, to be abated as a nui- 1 1 sance. 1 The district surveyor . No. 2. At the district suneyor’s £20 penalty for neglect. office. 1 The district surveyor . No. 3. At the district surveyor’s £20 penalty for neglect. 1 office. 1 The builder . No. 4. At the builder’s office, or Proceedings by surveyor or official 1 place of building or of alteration. referees. 1 Owner of external wall . No. 5. According to sections as to To be stopped up. notifications. 1 The official referees No. 6. At the official referees’ Survey and approval or disapproval 1 office. by official referees. Prohibition 1 of use of irregular buildings of this class, and penalty of £200 1 per day. » 1 The official referees No. 7. At the official referees’ Survey and certificate. 1 office. w. 1 The adjoining owner . No. 8. According to sections as to Inspection by surveyor, s. 21. ill 1 notifications. wJ. 1 The district sun'eyor No. 9. At the district surveyor’s Inspection by surveyor, and report .11 1 xmcl official referees . and the official referees’ offices. to oflicial referees. [TO. 1 The owners and agents, No. 10. To building and adjoining Inspection by surveyor, and report 1 owners and agents. to oflicial referees. w . 1 The adjoining owner, No. 11. According to sections as to Erection of wall. 1 and district surveyor, 1 s. 20. notifications. nn . iThe district surveyor No. 12. At the district surveyor’s Inspection by surveyor, and report 1 and official referees . and official referees’ office. to official referees. itw. 1 The owners and agents. No. 13. To building .and adjoining Inspection by surveyor, and report ' i 1 &c. owners and agents. to official referees. | ns .| *The adjoining owner . No. 14. According to sections as to Erection of wall, or raising a wall. ' 1 notifications. m« . Irhe adjoining owner . No. 15. According to sections as to Execution of operations. 1 notifications. onR ■rhe adjoining owner . No. 16. According to sections as to Execution of operatiohs. ' ■ notifications. rovoer . Brhe building-owner . No. 17. According to sections as to Erection of wall. 1 i^otifications. ■"he building-owner No. 18. According to sections as to If consent not given, commencement of works must be delayed for de- 'll notifications. 1 1 cision of official referees. No. 19. At the official referees’ office. Delay in commencing of operations. ’I'be building-owner No. 20. According to sections as to >> »> 1“^ j 1 notifications. ]46 Schedules. The Metropolitan Buildings Act. SCHEDULE {m.)— continued. forms of notices as to works. Metropolitan Buildings Act, 7 & 8 Vict. c. 84, s. 13, 1844. l.-Noike by the Builder to the District Surveyor, Two Days before commencing Operations. I DO hereby give you notice, That 1 intend to (a) * of the works to be executed ; and that the said works will be begun on the day of Dated this »y o and address.) Certain penalties are attached to neglect in giving this * Notice. Metropolitan Buildings Act, 7 & 8 Vict. c. 84, s. 13, 1844. 2.^Notice by the Builder to the District Surveyor, Two Days before resuming Operations. I DO hereby give you notice. That I intend to re-eommence the ('el that C. D. oi U to t the (J) .of ‘he works to be resumed ; and that the said works will be continued on the day of j f Dated this ^y address.) *J<‘ Certain penalties are attached to neglect in giving this Notice. Metropolitan Buildings Act, 7 & 8 Vict. c. 84, s. 13, 1844. 3 -Notice ty the Builder to the District Surveyor, as to Change of Builder. I DO hereby give you notice, That with reference to the works specified in my notice of ’ party-wall, external wall, chimney-stack or fine , rvf “ nnv nneniner in any party-wall , I» ^0 bioi 'h pany-waii, cALcina. — . „ •• this Act placed under the (6) /uiT^?cl\fcE” rr"TJi\der,’> or other superintendent to hav. charge of the works. referred to in notice No. 1, am (c) Describing in general terms the works rejerrea w which works may have been suspended three months. . ^ n rfj 7 & 8 VicT. Cap. 84. SCHEDULE (M.) — continued. E. F. (c) is to be placed in charge of the said works, instead of C. D. the (c) mentioned in the said notice. Dated this day of (Signature and address.) Metropolitan Buildings Act, 7 & 8 Vict. c. 84, s. 14, 1844. 4 . — Notice by the District Surveyor to the Builder, as to any thing done in the Erection of any Building not conformably to the Act. I DO hereby give you notice. That the {d) dow in progress (e) situate in (/) is not conformable to the statute in the portions thereof under mentioned ; and I require you within forty-eight hours from the date hereof, to amend the same. Dated this day of at the hour of by the clock. Note irregularities referred to. (Signature.) Metropolitan Buildings Act, 7 & 8 Vict. c. 84, s. 37, 1844. 5 . — Notice by an Owner or Occupier to an adjoining Owner or Occupier, to stop up an Opening in an External Wall abutting on his Premises. I do hereby give you notice. That if within one month from the date hereof you do not stop up the opening made in the external wall of your premises situate in {g) and which abuts on my (A) I shall, at your expense, cause the same to be stopped up, conformably to the statute. Dated this day of (Signature and address.) FORMS OF NOTICES AS TO SPECIAL SUPERVISION. Metropolitan Buildings Act, 7 & 8 Vict. c. 84, s. 15, 1844. 6 . — Notice by an Architect or Builder to the Official Referees, (c) Insert “ architect,” or “ builder,” or other superintendent to have ikarge of the works. {d) Insert ‘‘ building,” or “ alterations,” or “ building operations,” as the me may be. (e) Insert “ under your superintendence,” or “ in the building belonging .0 you,” as the case may be. if) Insert the situation, as the case may be. (p) Specify the situation. (h) Insert “ground,” or “ building adjoining.” II 2 147 Schedules. 148 Schedules. The Metropolitan Buildings Act. SCHEDULE (M.) — continued, as to Completion of the Carcass of a Building subject to special Supervision. I DO hereby give you notice, That the building now erecting under my superintendence in (^) being a build- ing of the (i) and having been completed to the full height of the walls thereof, and the timbers, floors, roofs and partitions being fixed, I require you, in accordance with the statute, should you be of opinion that the building is subject to special supervision, to survey the same, and to certify accordingly. Dated this day of (Signature and address.) A penalty of j^200 per day for using any such building without its being certified subsequent to notice as above and fol- lowing. Metropolitan Buildings Act, 7 & 8 Vict. c. 84, s. 15, 1844. 7. — Notice hy an Architect or Builder to the Official Referees, as to Completion of Amendments, and of Buildings subject l to special Supervision. I DO hereby give you notice. That the building now erecting under my superintendence in {h) being a building , of the (i) and having been completed in pursu- ance of your survey and notice subsequent, I require you, in ac- ‘ [ cordance with the statute, to survey the same, and to certify | . accordingly. ’ Dated this day of (Signature and address.) ' This notice will be used both with reference to the com- pletion of amendments and to the entire completion of a building. - FORMS OF NOTICES AS TO PARTY-WALLS, Metropolitan Buildings Act, 7 & 8 Vict. c. 84, ss. 20, 21, 24, 25, 1844. «( 8 . — Notice to be given {Three Months before commencing Opera- { tions) by an Owner or Occupier, to an adjoining Owner or Oc- ' cupier, that the Party-wall, or Party -arch, or Party -fence- \ wall is out of Repair. ■' •V® I DO hereby give you notice, That I apprehend that the (^)' } [/,;, (h) specify the situation. ■, (i) Insert “ first rate of second class,” or “ of the third class,” as the case [ « i maybe. ‘ (A) /w5er/ “ party- wall,” or party-arch,” or “party-fence-wall,” case may be. \ I 7 & 8 VicT. Cap. 84. 149 SCHEDULE (M.) — continued. or some part thereof, on the line of junction between my (/) situate, &c., and the (/) thereto adjoining, situate on the side thereof, is so far out of repair (m) as to render it ne- cessary to (w) such wall or some part thereof ; and that I intend to have such wall surveyed, pursuant to the statute ; and also, that I have given notice to the surveyor of the district and to the official referees to survey the premises, for the purpose of certifying the condition of such wall, and whether the whole or any part thereof ought to be repaired or pulled down and rebuilt, and to certify accordingly. Dated this day of (Signature and address.) Metropolitan Buildings Act, 7 & 8 Vict. c. 84, s. 20, 1844. 9. — Notice f in the same Case, to the Surveyor and Official Referees. - I DO hereby give you notice. That I apprehend that the (o) or some part thereof, on the line of junction between my (/) situate in and the {1) thereto adjoining, situate on the side thereof, is so far out of repair {m) as to render it necessary to repair or pull down and rebuild such wall, or some part thereof ; and that I require a survey thereof to be made, pursuant to the statute, and that in presence of such one or more surveyors or agents appointed by me, as undermentioned, or by C. D., the owner of the adjoining property, for the purpose of certifying the condition of such wall, and whether the whole or any part thereof ought to be repaired or pulled down and rebuilt ; and I do hereby also intimate that I have served a notice on C. D. to the like effect. Dated this day of (Signature and address.) Names and addresses of one or more surveyors or agents for building -owner. (1) Insert “house,” or “building,” or “ground,” as the case may be. \m) Insert when required “ or has been rendered dangerous and ruinous by cutting away footings,” or “breasts,” or “ chimney-shafts.” (n) Insert “ repair,” or “ pull down and rebuild,” as the case may he. lo) /«5er^ “ party-wall,” or “ party-arch,” or “ party-fence-wall,” as case may be. Schedules. 150 The Metropolitan Buildings Act, Schedules. SCHEDULE (M.) — continued. Metropolitan Buildings Act, 7 & 8 Vict. c. 84, ss. 20, 24, ]844. 10. — Notice^ in the same Case, by the District Surveyor, to the Building -Owner and adjoining Owner, and such one or more Surveyors and Agents by them appointed. I, surveyor of the district, do hereby give you notice. That, in pursuance of an application made to the official referees and to me in that behalf, it is my intention to proceed to view the premises (r) situate in for the purpose of certifying the condition of the (s) and whether any part thereof is so far out of repair as to require to be either wholly or in part repaired, or pulled down and re- built ; and such survey I do intend to make on the day of next, at by the clock in the noon, in the presence of any one or more surveyors or agents on behalf of the building-owner and the adjoining owner. Dated this day of (Signature and address.) Metropolitan Buildings Act, 7 & 8 Vict. c. 84, ss. 33, 34, . 1844. ^(11 . — Notice to be given Three Months before commencing Opera- tions, by an Owner to an adjoining Owner. I DO hereby give you notice, That I intend to {f) and that I intend to have such (w) surveyed conform- ably to the statute; and that I have given notice to the district surveyor and to the official referees to survey the premises, and to certify accordingly. Dated this day of ' (Signature and address.) Metropolitan Buildings Act, 7 & 8 Vict. c. 84, ss. 33, 34, 1844. 12. — Notice, in the same Case, to the Surveyor and Official Referees. I DO hereby give you notice. That I intend to {t) (r) Designated by number or other name. (s) Insert “party-wall,” or “party-arch,” or “party-fence-wall,” as the case may be. {t) Specify the kind of operation, as to whether it be intended— “ To raise a party-fence-wall j” or, “ To repair or rebuild a party-fence- wall;” or, “ To pull down and rebuild rooms in intermixed property, &c. and specifying the situation, 8jc. (w) Insert “party-fence-wall,” or “ rooms in intermixed property.” 7 & 8 VicT. Cap. 84. SCHEDULE (M.) — continued. and that I require a survey thereof to be made, pursuant to the statute, and that in presence of such one or more surveyors or agents appointed by me, as undermentioned, or by C. D., the owner of the adjoining property, for the purpose of certifying whether the whole or any part (m) ought to be pulled down and rebuilt ; and I do hereby also intimate that I have served a notice on C. D. to the like effect. Dated this day of (Signature and address.) Names and addresses of one or more surveyors or agents for building -owner. Metropolitan Buildings Act, 7 & 8 Vict. c. 84, ss. 33, 34, 1844. 13. — Notice f in the same Case, by the District Surveyor to the Building -Owner and adjoining Owner, and such one or more Surveyors and Agents by them appointed. I, surveyor of the district, do hereby give you notice. That, in pursuance of an application made to the official referees and to me in that behalf, it is my intention to proceed to view the premises (Y certiorari . , . , ,171 Chapter XVII. — Exemptions from stamp-duty . 171 157 ANALYSIS. PART I. KEW BUILDINGS, ALTERATIONS, AND ADDITIONS. CHAPTER I. — Erection of New Buildings^ and Execution of Alterations in, or Additions to, existing Buildings, subject to the Controulof this Act, and to the Supervision of the District Surveyor. Before commencement of works, two days’ notice to be given (Form, No. 1,) by the builder to the district surveyor at his office, under a penalty of .£"'20 fine, and treble fees to district surveyor. On suspension of works for any period exceeding three months, or on change of master builder, two days’ notice (Forms, No. 2 & 3,) to be given by the builder to the district surveyor, under a penalty of £20, and pulling down of works executed during de- fault of such notice (s. 13). If the surveyor or official referees be refused admittance by the builder at any reasonable time, works executed during such refusal are liable to be pulled down. On receipt of forty-eight hours’ notice from the district sur- veyor of any irregularities, (Form, No. 4,) the works complained of must be amended forthwith, in conformity with the Act, (s. 14,) or in default, the district surveyor is empowered to amend them at the expense of the builder. In case of dispute between the builder and the district surveyor, appeal may be made to the official referees, whose decision is to be final, both as to the matters in dispute, and as to the costs of the appeal. Fees become payable to the district surveyor one month after covering in, and completion of walls, roof, timbers, partitions, and floors of new buildings ; and fourteen days after completion of any alterations or additions to existing buildings (s. 77). It is as well to premise, that two days’ notice must be given to the district surveyor in all cases, before commencement of any of the works hereinafter detailed ; and, indeed, of any works whatsoever, which come within the jurisdiction of this Act. CHAPTER II. — As to the same Proceedings, where the Build- ^ ings are subject to the special Supervision of the Official Referees, as well as to the Supervision of the District Sur- veyor. The works having been completed according to the preceding chapter, to the satisfaction of the district surveyor, seven days’ notice (Form, No. 6,) must be given by the builder to the official 15S Analysis of Rules of Practice, referees ; whose approval is to be certified to the builder within the next seven days (s. 15). In case of disapproval by the official referees of any portion of the work, notice is to be given by them in writing to the builder, stating their objections. On amendment of the irregularities, the builder gives fresh seven days’ notice to the official referees, (Form, No. 7,) who must approve or disapprove within seven days. In case of approval the certificate must be officially sealed by the registrar of buildings. Incase of disapproval, the same course must be gone over again, until the official referees are satisfied. The penalties for using any building subject to the supervision of the official referees, without their certificate of approval, is to be fixed by two magistrates, at not more than ^£*200 for every day such building shall have been so used. CHAPTER III. — As to Buildings included in Schedule (B.), which are subject to the special Supervision of the Official Referees alone. Before commencement of the works, notice to be given to the official referees by the builder, and the proposed plans to be sub- mitted to them. The official referees having viewed and approved of the situation and plans of the proposed building, the builder may proceed on receipt of such approval. The official referees wall then fulfil the same duties of inspec- tion during progress and approval on completion, as would have belonged to the district surveyor (s. 16,) if the building had been such as to be included under section 1, above described. The penalty for using any building subject to the special super- vision of the official referees, without their approval, to be fixed by two magistrates, at not more than ^"’100 for every day such building shall have been so used. PARTY-WALLS, PARTY-FENCE-WALLS, AND PARTY- ARCHES IN INTERMIXED PROPERTIES. CHAPTER I. — Erection of original Division Walls, Party- walls, or Party -fence -IV alls on the Line of Junction of vacant Ground. Building-owner to give one month’s notice (Form, No. 16,) to adjoining owner, who must signify his consent in writing within that time (Form, No. 17). On receipt of consent, building- owner may erect such walls, &c. on equitable proportion of ad- joining owner’s ground, but altogether at the expense of the building-owner, who must also pay a fair value for the proportion PART II. 1 159 under the Provisions of this Act. of the adjoining owner’s land used by him for building such party-walls, &c. The value to be decided by the official referees (s. 38). In case the adjoining owner should [not give his [consent, then the building-owner must erect the walls, &c. as external walls altogether on his own ground. *** Although the building-owner cannot compel the adjoining owner to contribute to the building of the party-walls, &c. herein alluded to, such adjoining owner cannot make use of such party- walls, &c. without first contributing his fair proportion of the cost of the same (s. 46). CHAPTER II . — Rebuilding of ruinous, insufficient, or defective Party^walls. Building-owner to give notice (Form , No. 8,) to adjoining owner three months before commencement of works (s. 21). Adjoining owner, within seven days after receipt of such notice, (s. 22,) to signify his consent to or dissent from the execution of the works ; and also to state, if dissenting, the period of delay, or the variations or modifications in the works which he may require (Form, No. 18). Building-owner, within seven days after receipt of such notice of variations or modifications, &c., to signify his consent to or dissent from the same : the silence of the building- owner in this case to be deemed dissent. In case of dissent, adjoining owner to apply, within seven days, to official referees, (Form, No. 19,) and to serve notice of such application (Form, No. 20,) on the building-owner. Building-owner, on receiving notice of such application, to delay all proceedings, until the decision of the official referees be known ; such decision to be finally binding on both parties. In case of absence or legal disability of adjoining owner, building-owner may serve the notice required (Form, No. 9,) on the district surveyor and official referees (a) ; surveyor then to appoint a view forthwith, giving notice to both parties, (Form, No. 10,) and certify to the official referees whether the work is proper or improper to be done, or whether any and what modifications and variations ought to be adopted ; also what com- pensation is to be paid to the adjoining owner for the ground to be taken by the building-owner (s. 24). Official referees, on receipt of report from district surveyor, to give notice of such report to all parties, who are to appeal against the same to the official referees within seven days ; and, in default of any appeal, the official referees will confirm the sur- (a) It does not appear in the Act what proof is required of absence or legal disability. The safest mode of proceeding would therefore seem to be to suffer the seven days allowed to the adjoining owner to elapse before ser- vice of notice on the district surveyor and official referees, for the authorisa- tion of the compulsory proceedings hereinafter detailed. 160 Analysis of Rules of Practice^ veyor’s report, and authorise the building-owner to proceed ; or, on appeal, will view the premises, and make such alterations and modifications as may appear to them just and proper : the award of the official referees to be final. The building-owner cannot, however, under any circumstances, unless by consent, proceed before the expiration of three months from the date of the first notice to the adjoining owner. The building-owner must, in all cases, pay every expense incurred throughout these proceedings (s. 20) ; he must also compensate the adjoining owner for any additional ground which he may require (s. 24) ; and make good every damage incidental to the work sustained by such adjoining owner ; and although the words of the Act are not sufficiently explicit on this last head, as to what is to be deemed incidental damage, it appears perfectly clear that the Act intends the building-owner to bear (as indeed he ought) all expenses of reparation of the adjoining owner, both exterior and interior, substantial and ornamental (ss. 28, 29) ; but it would not seem, however, that he (the build- ing-owner) is rendered liable for any loss of rent sustained by the adjoining owner. CHAPTER III. — Reluildinff of Party -walls, ^c., for Buildings of a higher Class or Rate than those adjoining. Any building-owner rebuilding a sound party-wall requiring no survey, must give three months’ notice, (Form No. 14.) The building-owner has the option of rebuilding a party-wall of the highest rate, according to the practice detailed ante, (Chap. II.), or of building an external wall against the adjoining party-wall, always provided that such party-wall be sound (s. 27). The building-owner will be equally bound to make good any damage resulting from or consequent on his operations, as if he rebuilt the party-wall (s. 28). It does not appear that any notice {h) is necessary to the adjoin- ing owner, in case of erection of an external wall, unless some part of the party-wall be cut away or otherwise affected, in which case one month’s notice (Form, No. 15,) must be given by building- owner (s. 28). The building-owner, by constructing an external wall against a sound party-wall, does not thereby give up the right to his fair proportion of the soil on which such party-wall is built, nor of the materials of which it is composed (s. 30) ; but he has a right to compensation for both, in case such party-wall should be at any time pulled down and rebuilt by the adjoining owner, and the soil and materials made use of by him, any (6) Courtesy, however, as well as a wish for security against any proceed- ings, has always hitherto dictated the service of a notice on the adjoining owner, even where such notice was not legally necessary. under the Provisions of this Act. 161 dispute as to value to be finally settled by award of the official referees. It would appear, however, that if the adjoining owner, on pulling down such party-wall, build an external wall also, and thereby make no use of the soil or materials, he is not bound to pay any compensation for the same. CHAPTER IV. — Raising of Party -walls. Building-owner to give two days’ notice (Form, No. 1,) to dis- trict surveyor, and to bear all expenses incidental to the work ; also to raise the chimneys of the adjoining owner, and to pay com- pensation for all damage sustained by such adjoining owner (s. 31). Such adjoining owner cannot however use any wall so raised, without first paying his fair proportion of the cost of the same (s. 31). CHAPTER V. — Repairing, Rebuilding, and Raising of Party- fence-walls. Either owner may repair, rebuild, or raise to the height of nine feet from the ground, any party-fence-wall on giving two days’ notice to the district surveyor, and payment of all expenses and damages (s. 32). Either owner may pull down and rebuild any party-fence-wall which is insufficient for an intended building, on observance of the prescribed regulations, and payment of all expenses and damages. Although the Act is silent on the subject, it would seem that the building-owner in the latter of these two cases must give the notices prescribed, and in all other matters go through the several proceedings laid down in Chap. I. Part II. {ante, page 158) for the erection of original party-walls. CHAPTER VI. — Pulling down Rooms in existing Buildings on Intermixed Property ; and Erection of Party-walls on the Line of Junction. The building-owner to give notice to the adjoining owner of his intention to build; and also to the district surveyor (Forms, No. 11 & 12), three months before commencement of the works (s, 32). In case of dissent by the adjoining owner, notice of appointment for survey to be given to both parties (Form, No. 13), by the district surveyor, who, after survey, will report to the official referees, who will authorise the work to proceed, and award the proportion of expense to be borne by each party (ss. 34, 50). CHAPTER VII. — Pulling down of existing Timber Partitions, and Substitution of Party-walls. The building-owner to give notice (Form, No. 14,) to the adjoining owner, three months before commencement of the works ; all other proceedings will then follow as in the case of the 162 Analysis of Rules of Practice, erection of an original party-wall. (See ante, Part II. Chap. I.), with the following exceptions (s. 33): — 1. That the taking down of the fronts of either of the adjoin- ing buildings to the height of one story, or for a space equal to one-fourth of such front from the level of the second floor up- wards, makes the substitution of a party-wall for an existing timber partition, compulsory on all parties (s. 33). 2. That in any case of such substitution, all the owners on either side are bound to contribute their proportions of the ex- pense, which in other cases falls upon the building-owner alone (s. 33). The several Inns of Court are specially exempted from the operation of the Act in this respect (s. 35). CHAPTER VIII. — Excavation hy a Building -owner against an existing Party or External Wall, for the purposes of a lower Story or a deeper Foundation. Any building-owner desirous of excavating against an existing party or external wall, or to cut away the footings, or chimney- shaft or breasts of any such wall, to give one month's notice (Form, No. 15,) to adjoining owner. The chimney -breasts and shafts, and the footings so cut away, to be made good in cement by the building-owner, under the supervision, and to the satisfaction of, the district surveyor (s. 28). The wall so cut away to be shored up, underpinned, and made good at the cost of the building-owner ; and the building-owner to make good all damages of every kind sustained by the adjoin- ing owner from the effects of the work ; and if the wall, from the effects of such cutting away, should be condemned as ruinous or insecure by the district surveyor on survey, by application of any party, or otherwise : the building-owner is bound to rebuild such wall, and make good every damage sustained by the adjoining owner, in consequence of, or incidental to, such rebuilding (s. 29). CHAPTER IX. — As to Openings in Party or External Walls, abutting on, or overlooking the Ground or Buildings of the Adjoining Owner. If any owner make an opening in any party or external wall, or if any such exist without right, the adjoining owner must serve notice (Form, No. 5,) on the owner having made such opening, to stop up the same within one month (s. 37). In case of neglect of such notice, the owner giving such notice may stop up the same, and recover the costs from the first owner, according to the means provided by the Act. The owner of the opening so stopped up, has, of course, his remedy by action of trespass in case of right by uninterrupted possession, &c., according to the 2 & 3 Will .IV. c. 71. (See note to section 37 of this Act, ante, page 41). under the Provisions of this’^Act. 163 PART III. RUINOUS, OR DANGEROUS BUILDINGS. CHAPTER I . — Ruinous Buildings. The district surveyor on receiving notice of any buildings being in a ruinous or dangerous state, to report the same forthwith to the ofl&cial referees. The official referees having directed a survey, the surveyor to make the same, and report again to the official referees. The official referees on receipt of such report of the district sur- veyor, to transmit a copy of the same to the lord mayor, (if within the city of London,) or to the overseers of the poor, (if without the city of London,) and the lord mayor or overseers, as the case may be, must erect a hoard for the protection of the public, and give notice to the owner to repair or pull down the building within fourteen days (s. 40). If within the said fourteen days the owner does not begin to repair or pull down, and afterwards complete the same with all reasonable despatch, the lord mayor, or a magistrate, on applica- tion by the overseers, and proof of service of notice, will autho- rize the pulling down of the dangerous portions, and defray the expenses out of the sale of the materials ; the owner being liable to make good any deficiency (ss. 40, 41, 42). In case of appeal by the owner, or any other parties, against the condemnation of any building certified by the district sur- veyor as dangerous to the official referees, the official referees must view the same, and their decision will be final (s. 40). CHAPTER II . — Ruinous Chimneys. In case of chimneys being dangerous in the opinion of the district surveyor, the occupier or owner must repair the same within thirty-six hours after receipt of notice (s. 43). If there be no occupier nor owner, or if the occupier or owner neglect the notice, the district surveyor to report to a magistrate, who will order the reparation, securing, or pulling down of the same, as he may deem best for the public safety. The expenseshaving been certified by the official referees, to be paid by the overseers of the parish, and to be recoverable by such overseers from the then occupier or owner, or from any future occupier or owner of the property, the occupier being authorised to deduct the same from his rent. In case of chimneys falling, the owner of such chimneys is liable to pay to the adjoining owner all damages consequent upon such fall (s. 44). This provision, however, does not extend to damage done by the fall of all, or any portion of a party-wall. 164 Analysis of Rules of Practice, PART IV. LEGAL SERVICES AND REMEDIES. CHAPTER I . — Service of Notices. — (1.) Upon whom to be served. "With regard to the service of the required notices upon the owner or occupier of any building or ground, the Act provides (s. 101), that — If such owner be a married woman, other than a cestuique trust in regard to such property, then such notice must be given to her husband ; or — If such owner be an infant, idiot, or lunatic, or CESTUiauE TRUST, then such notice must be given to the guardian, trustee or committee of such infant, idiot or lunatic, or cestuique trust ; or — If such OWNER, husband, trustee, guardian or committee, is NOT KNOWN or CANNOT BE FOUND, then such notice must be given to the occupier of the building, fence or ground to which it may relate ; or — If such BUILDING OR GROUND BE UNOCCUPIED, then the notice must be affixed to some conspicuous part of such building, fence or ground, at a height of not more than nine feet from the ground. If the OCCUPIER of the ground or building in respect of which the notice is to be given, say he is not the owner, then notice must be given to his immediate landlord, whose name and address the occupier is bound to furnish. If the landlord be only part owner, or in receipt of part only of the rents or profits, on receiving notice as above, he is bound to transmit a copy of it to the other persons interested. If he fail to do this, and any of those persons suffer damage through his neglect, he or they may have a remedy against him, but the service upon the immediate landlord or his agent by or on behalf of the person bound to serve it in the first instance will be deemed a sufficient service, notwithstanding any default in the party so served. (2.) How to be served. Notice to the occupier must be served (s. 113,) either on him personally, or by leaving it with some inmate of the house, or by affixing it on some conspicuous part of the premises, as directed above. Notice to the owner must be served (except in certain cases specified below) either on him personally, (s. 114,) or by leaving it with some inmate at his usual place of abode, or at his last known place of abode, or by affixing it as above directed. under the Provisions of this Act, 165 If the owner be not within the limits of the Act, and have no agent acting for him in respect of the premises concerning which the notice is to be served, within those limits, then notice may be transmitted to him by the post (s. 115), taking care to forward it at such a time as shall allow him, after the receipt of the letter, the full period of notice required in the case ; and also that the letter be registered. Notice to the surveyor must be served at the office of such surveyor (s. 116). Notice to the official referees, or any one of them, must be left at the office of the registrar of metropolitan build- ings (s. 116). CHAPTER II. — Entry on Premises for the purposes of In- spection. Any works done or to be done in pursuance of this Act, are to be completed to the satisfaction of the district surveyor and the official referees, and for the purpose of ascertaining the manner in which they have been executed, those parties are empowered to enter upon the premises at all convenient times for the purpose of inspection. Also before any work is begun, the surveyor is authorised to inspect the premises. If any person refuse to admit the parties thus empowered to enter and inspect (s. 17), lie forfeits for every offence a sum not exceeding .£■'20, and the work is liable to be pulled down ; and the parties so refused may, with the aid of a peace-officer, make a forcible entry on the premises for the discharge of the duties which the Act has im- posed on them (s. 17). CHAPTER III. — Entry on Premises for the purpose of build- ing P arty -walls j Party fence-walls j or executing other Works under the Provisions of the Act. For the purpose of facilitating the execution of works autho- rised under this Act, the building-owner or some person on his behalf, may, accompanied by a constable or other officer of the peace, make an entry on the adjoining premises (s. 36), so far as may be necessary for executing such work, at any time between the hours of six in the morning and seven in the afternoon (Sundays excepted). And if the outer door be closed, and the parties refuse to open it, or the house be unoccupied and the door fastened, then such outer door may be broken open, and all furniture, fixtures and goods in the way of the necessary opera- tions removed, either to some other part of the house, or to any place of safe custody. And from and after the first entry, the builder and all his men may have free access to the premises, and be permitted to remain thereon during all the usual hours of working ; and if any hindrance be offered, the person guilty will forfeit a sum not exceeding £10. 166 Analysis of Rules of Practice, CHAPTER IV. — Summons for building contrary to the Act, or- for Refusal to amend on Notice, In the case of every building subject to the supervision of this statute ; if the district surveyor on surveying it give a notice of disapproval, it is the duty of the architect or builder (s. 14) to amend the parts complained of, after which a fresh survey is made when the work is complete, and, if approved of, a certificate of approval is given by the official referees. If, before that certifi- cate be obtained, a building subject to special surpervision be used for any purpose, the party offending may be fined not more than ^200 per day for the time during which it has been so used, if the building be of the highest rate. If it be of the rate in Schedule (B.) the fine shall not exceed i^’lOO per day (s. 16). If in building, repairing, or altering within the jurisdiction of this Act, any of its regulations are infringed, the builder is to be summoned before two justices (s. 18), and compelled to enter into recognizances to alter and amend the work, on pain of im- prisonment until such alteration or amendment is effected. If any workman, without the consent or privity of his master, and through carelessness or wilfulness, infringe the provisions of the statute (s. 19), he may be summoned before two justices, and, on conviction of the offence, be liable to forfeit a sum not exceeding fifty shillings, and, in default of payment, may be committed to prison for any period not exceeding one month. CHAPTER V. — Recovery of Costs and Expenses in certain Cases. For the purpose of reimbursing any building-owner for the ex- pense of the following works, undertaken in respect of any party structure built to separate the buildings or premises of others from his own, the Act provides compensation (s. 46), viz. : — 1st. For any party-wall built on the line of junction between two buildings. 2nd. For any party-wall between a building and vacant ground belonging to different owners or occupiers. 3rd. For any ruinous party-wall rebuilt in pursuance of this statute. 4th. For timber partitions pulled down and party-walls built. 5th. For a new party-wall or party-arch built in compliance with the provisions of this Act between intermixed pro- perties. 6th. For any party- wall built on the site of a party-wall or party-fence-wall, and used otherwise than as a party-wall by the person who has not built the same. 7th. For every other case of reimbursement in respect of any party structure — that if the party structure be built in conformity with the provisions of the Act certain compen- sation may be recovered by the building-owner (at whose expense the work shall have been done) from the adjoin- 167 under the Provisions of this Act. ing owner. And that until the expenses so due shall have been paid, the building-owner shall be possessed of the sole property of the party structure and of the ground whereon it stands, which shall vest exclusively in him, in contravention of the general rule of law, that by building on another man’s ground you abandon the property in the structure to the owner of the soil. Within twenty-one days of the completion of the work (s. 47), the building-owner or party at whose expense the work has been done, is to deliver to the adjoining owner an account of the costs incurred, including the quantities and prices of the work, and the deductions (if any) which the adjoining owner is entitled to make ; and when this account has been approved by the official referees, payment may be demanded, and if not made within ten days then the claimant may proceed in a summary way before two justices or a police magistrate (s. 102), who may issue a warrant of execution for the amount, or, in default of goods and chattels to satisfy the writ, may commit the debtor till the debt and costs are paid. CHAPTER VI. — Recovery of Cost hy Occupiers and Part-owners. Where the occupier has paid costs to which the owner was liable, he is at liberty to deduct them from the rent due or falling due from himself to the latter (s. 48). And where one part-owner has paid costs to which any other part-owners are bound to contribute, the proportions in which they shall contribute, are, in case of dispute, to be deter- mined by the official referees (ss. 49, 50) ; and the party entitled to claim contribution may receive the rents and profits of the buildings in respect of which the expenses have been incurred, or obtain a warrant of distress by application to two justices. CHAPTER VII. — Indictment of Dwellings unfit for Habitation. With regard to buildings of the dwelling-house class, no room or cellar in them built in contravention of the rules specified in Schedule (I.) can be let as a dwelling, nor occupied as such (s. 53) ; nor can any room of less area than one hundred square feet, nor any built wholly underground, be used for any other purpose than as a ware or store-room ; nor can any part of any building of the dwelling-house class be used as a pig-sty, dog-kennel, or for any other noxious purpose ; And on conviction for any offence against these provisions before two justices, the party convicted is liable to forfeit for every day that such offence has continued a sum not exceeding 20 shillings, half of which penalty shall go to the person sueing for the same, and half to the poor of the parish in which the offence shall have been committed. 168 Analysis of Rules of Practice, CHAPTER VIII . — Indictment of dangerous Trades. No buildings of any class can be erected nearer than fifty feet from any building in use for a business dangerous in respect of fire and explosion (s. 54). Nor can any one commence such a business in a building at any less distance than forty feet from any public way, or than fifty feet from any other building ; or if such business i^be now carried on in any situation within those distances, then at the expiration of twenty years from the passing of this Act, it shall no longer be lawful to continue it. If any person erect any building near to such dangerous busi- ness, contrary to this Act, then, on conviction before two justices he shall forfeit ^''50. If any person establish anew such a business, or carry it on contrary to this Act, he shall forfeit on conviction as before, a sum not exceeding ^50 for every day that the offence continued, and reasonable costs to the prosecutor, to be recovered by dis- tress, or, if there be no distress, the offender to be imprisoned for any period not exceeding six months. CHAPTER IX . — Indictment of unhealthy Trades. As regards proximity to buildings wherein trades injurious to health are carried on, the provisions contained in section 55 are in all respects similar to the last. They are similar also in the penalty imposed on offenders, and the mode of recovery, by distress or imprisonment. The penalty, however, can be mitigated at the discretion of the justices (s. 56), if it should appear that the party has used all available means for mitigating the injurious effects of such business ; or the justices have power to suspend the execution of their order, where the party has made due endeavours to mitigate the noxious effects of the trade, though he has not employed the best means, and to give him an opportunity within a limited time of adopting such other and better means ss to the court shall seem fit. An appeal to the sessions is allowed in cases of conviction in respect of trades not enumerated (s. 57). And all former remedies, criminal or civil, are left as much available as before the passing of the Act (s. 60). .CHAPTER X. — Appeals. On the conviction before two justices of any person for carrying on any noxious trade not specifically mentioned in the Act, and not declared to be a nuisance by some superior court, the party convicted may appeal to the quarter sessions, to be held within four months from the time of conviction (s. 57), and obtain a trial by jury (s. 58). 169 under the Provisions of this Act, Notice of appeal must, however, be given within two days of the conviction, and the appellant must enter into recognizances, with two sureties, to try such appeal. If the premises are in the city of London, the appeal must be to the quarter sessions thereof. If the premises are in Middlesex, Kent, or Surrey, or in the city or liberties of Westminster, or in the liberties of the Tower, the appeal must be to the quarter sessions thereof respect- ively. The decision of the quarter sessions is to be final. If the appeal be to the quarter sessions of Kent or Surrey (s. 56), the trial is to be at some general or special adjournment thereof, to be held within six weeks next after the original sessions. If the matter relate to Surrey, the adjourned sessions to be held in Southwark. If it relate to Kent, the adjourned sessions to be held at Greenwich. All further adjournments to be within three weeks of the last meeting. CHAPTER XI. — Purchase of noxious or offensive Trades. Two-thirds of the inhabitant householders of any parish or place where such business is carried on, may memorialize the Sovereign in council for its removal (s. 61) — promising compen- sation to the parties by levying a rate or raising a subscription. The committee of the privy council for trade to report thereon — when the Sovereign may order that its removal be purchased either at the expense of the memorialists or by means of a rate. Sheriff to summon a jury who shall assess the compensation to be paid to the party carrying on the business and to the owner of the premises. If within three months of the verdict of the jury the money be raised, and paid, or tendered, then within three months from such payment or tender it shall cease to be lawful for the party carry- ing on such trade to continue it, or for the owner of the premises to suffer them to be so used. If the Sovereign order the compensation to be paid by a rate, then the overseers of the parish may raise it as part of the poor’s- rate on the parish generally or otherwise, as the order in council shall direct (s. 62). CHAPTER XII. — Informalities in Distress and Actions thereon. Though any distress under the provisions of this Act be in- formal, it shall not be deemed unlawful, nor the party making the same a trespasser ab initio. But for any irregularity an action for damages may be brought and full satisfaction for special damage only, recovered — (s. 100). I 170 Analysis of Rules of Practice^ ^c. CHAPTER XIII. — Recovery of Fees hy District Surveyors. One month after the roof of any building erected and surveyed under this Act has been covered in, and the walls carried up to their full height, and the principal timbers, partitions and floors fixed in their places : And fourteen days after the completion of any addition, alteration and repair ; and fourteen days after each special service shall have been performed, and on tendering an account and receipt, the surveyor will be entitled to the fees specified in Schedule (L.) — (s. 77). If payment be refused a justice may issue a warrant to levy the amount by distress, as in cases of poor’s-rate. If the work shall not have been done in conformity with the provisions of the Act, the surveyor will not be entitled to his fee ; or if he shall, under these circumstances, have received it, he may be compelled to refund on application to the official referees. CHAPTER XIV. — Recovery of Awards. All sums of money due under any award or certificate made under this Act, in respect of any works done in pursuance thereof, may be recovered in a summary manner (s. 102,) by application to two justices of the peace, or, if the matter arise within the district of the metropolitan police, to a police magistrate, who may issue a warrant to levy the amount by distress on the goods and chattels of the person in default, or, if there be no sufficient distress, then to commit him to prison until the fine be paid. CHAPTER XV. — Prosecutions for Offences under the Act, Limitation of Penal Actions^ and Rules prescribed with regard to Civil Proceedings against Persons acting under the Act. For any offence against the provisions of this Act, complaint may be made before any justice or police magistrate (s. 103), who may summon the offender, and, on conviction before two justices or a magistrate, the penalty imposed may be levied by distress, or the offender imprisoned until the penalty and costs are paid. Every action brought to recover the amount of a penalty or forfeiture incurred under this Act, must be brought within six months of the time when the forfeiture was incurred (s. 106). And, except where the amount of the penalty shall be other- wise specifically appropriated, the person sueing for it shall be entitled to claim it for himself (s. 107). No action can be maintained against any one for any act done in pursuance of the provisions of this statute unless commenced within six months of the time of the act committed (s. 108) ; and Twenty -ONE days’ notice of such action must be given in writing. If the cause of action have arisen in the city or liberties of London, the venue must be laid in London. under the Provisions of this Act. 171 If without those limits, the venue must be laid in Middlesex. The defendant may plead the general issue, and give this Act and the special matter in evidence. If the verdict be for the defendant he may recover full costs ; and on application by the defendant to the court in which any such action shall be pending, the plaintiff may be compelled to give security for costs (s. 109). CHAPTER XVI . — Removal of Orders, Writs, 8fc. by Certiorari. No orders or proceedings under this Act are removable into the superior courts (s. 104), except in case of conviction of any party for carrying on some noxious business not specified in the Act. CHAPTER XVII . — Exemption from Stamp Duty. Every certificate and award required to be made and signed by the surveyor or official referee under this Act is exempted from stamp duty (s. 118). . Bili/- ' /, H^-T&iiiBi iM.'!Siii-'.rSii‘#*^ — - *. 'wrSmfiiHfr' *«--•- -- '4-h '^’'U'"* rv ^ -;‘^tiji ^-'i> ij v^' •■ 4:^ j ; .V . " , ^'adr tt>a} 9tti9yom&( '- . :4:r-^,- -^ . „K ‘ ' r ^ ?. ' ^rtBij -^.(w lo rtoh^^wtoo^\i'^‘a^a4i “JK^ 1^4 ?H • " 4^ joJ^ t*d^ ni fi9iti«oq«“ioa ;r > * ^ . »* ^ v' ■ ■' ■ ■ ' ^' ' •'■ ■_> ‘ ■ «*wn\ft wyi\ *•'• ti.-* - t'l ^ bal obma ^ ol r^:.l ,,t, - h 9 Jq«> »X3 »A «iflii 1 ‘vfaoir. i»w3^n :•"■ t.*., V -;^P$'4|' •'* - ' 'Jiprr:'-- ■ '•*^. ■ , . ‘..it Iw ■ W - ■- '•■■' ..'*'.4-' ■ ' r ' ^ ■' '""W'',3.^'f ! J FIXTURES. ^ If'‘” -t^/ , . •Y «?- ^ t*;*i Ir. .'^•■ i. •L— I <* ■ ntr ^'■- ^ ■ - ^ * .5,^ v. - <*->>■- jg ''»■ .lMp|!^i^t: V. A5«r :••-.» w ■.•_.. ...^, ' ■' *v. . '. ‘ ;r> :■ citify# «' T'/l' CONTENTS. Chapter I. — Fixtures in General — their Origin — and definition of the True Meaning of the Term .... Chapter II. — Of the Right to Remove Fixtures, as modified by their Nature and Purposes Section I. Trade Fixtures 2. Agricultural Fixtures . 3. Domestic Fixtures 4. Fixtures put up for Mixed Purposes . Chapter III. — Of the Right to Remove Fixtures, as modified by the Legal Character, or Relative Position of the Claimants . Section 1. As between Heir and Executor 2. As between the Personal Representatives of a Tenant for Life or in Tail, and the Remainder-man or Reversioner 3. As between Landlord and Tenant 4. As between Ecclesiastical Persons and Corporations Sole, andtheir Successors Chapter IV. — On the Right to Remove Fixtures, as affected by Private Stipulation or Particular Custom . Section 1. As to the Effect of a Covenant to Repair 2. Effect of a New Agreement 3. Effect of a Subsequent Demise 4. Effect of a Particular Custom . Chapter V. — On the Right to Remove Fixtures, as modified by a change in the Legal Cha- racter and Liabilities of the Owner . Section 1. In case of Distress • 2. In case of Execution . 3. In case of Bankruptcy I'AGE 177 184 190 194 196 202 205 205 208 209 211 213 214 215 216 217 220 220 221 223 176 CONTENTS. Chapter VI. — Of the Time at which Fixtures should be Removed Section 1. In the case of Termors or Tenancies of a Definite Duration . 2. In the case of Tenants whose Interests are of Uncertain Duration 3. In case of Forfeiture of Lease Chapter VII. — Transfer of Fixtures . Section 1. By Sale and Assignment 2. By Demise .... 3. By Mortgage 4. By Bequest .... Chapter VIII. — Rateability of Fixtures Chapter IX. — Valuation of Fixtures Chapter X. — Dilapidation of Fixtures Chapter XI. — Remedies by Action and otherwise, in respect of Fixtures Section 1. By Injunction 2. By Action .... Chapter XII. — Criminal Proceedings in respect of Fixtures .... Section 1 . Stealing of Fixtures 2. Breaking or Destroying of Fixtures 3. Of Deodands .... SCHEDULES OF FIXTURES. Schedule, No. I. — Fixtures not Removable by the Tenant, although Annexed or Renewed by him Schedule, No. II. — Fixtures Removable by the Tenant, if Annexed by him Schedule, No. III. — Fixtures Removable by the Tenant if Annexed by him, but usually Scheduled in the Lease Schedule, No. IV. — Doubtful Fixtures of which the Character must be determined by the Particular Circumstan- ces of the Tenure PAGE 228 228 232 233 ' 235 235 239 240 244 248 251 253 254 255 256 260 260 261 263 265 267 271 273 FIXTURES. CHAPTER I. FIXTURES IN GENERAL — THEIR ORIGIN AND DEFI- NITION OF THE TRUE MEANING OF THE TERM. The word Fixture, as employed in the English vocabulary, has three distinct meanings, all denoting the same thing essentially, varied by the medium through which it is viewed, or the context to which it is applied. These three meanings may be severally designated as “ colloquial,’' — “ supposititious,” — and “ legal,” or “ real.” ‘‘ Colloquially,” the word Fixture is applied to every item or thing added to a house, for the espe- cial convenience of the tenant. We say “ added,” because the term is only colloquially applied to such things as a builder would not execute unless under a special contract ; and then most frequently without reference to their ownership, whether in the landlord or the tenant — but simply as relating to things necessary to the tenant’s convenience, but not essential to make a house generally tenantable, or, as Lord Denman has recently better expressed it, “ habitable;” and although this is a most indefinite, and unsatisfactory use of the term, it is as certainly the sense m which it originated, and from whence its subsequent and more precise definitions have sprung. It must be borne in mind, that not only the word “ Fixture,” but the very thing itself, (with few ex- B* 178 FIXTURES. ceptions) is of comparatively recent origin ; created j by a fashion, itself of no remote date, and rendered j necessary by luxurious cravings of which our ances- ^ tors had no knowledge, and for which, therefore, they | made no provision. . I So lately as the reign of George the First, the few | fittings in general use were such as almost wholly to | preclude the use of the word fixture. The “ dogs in ; the chimney-corner supported the firewood, as now h the stove-grate holds the coal; and these “dogs’’ i. were necessarily detached, in order to accommodate | the various dimensions of the fuel. The blazing f kitchen fire, formed in the same manner, needed no patent range. The turnspit at his wheel performed | the daily service of the smoke-jack ; the chopping- block answered the purposes of the modern dresser ; | the shining pewter plates and dishes were displayed | upon oak ledges let into the walls ; and neither cup- I board nor inclosure was to be seen. | In the hall, the chamber, the dining-room, or the I library, the tapestried walls or the richly carved oak I wainscot precluded all idea of affixing any thing to I them. Even to the present day, the few remaining i old baronial halls and castles contain neither closet f nor cupboard ; but massive chests, more or less orna- ■ mented according to their locality, occupy the sides, J or fit into the corners of the rooms. Here, too, the I ! chimney “dogs” supplied the place of stoves or grates; and bells were never thought of, where a i! host of followers attended constantly within their i j master’s call. j; In those days domestic fixtures had scarcely an tj existence. But as time gradually wore away those feudal yj distinctions which had so long existed, the former ai picturesque but inconvenient style of building gave place to one at once more economical, and better adapted to the wants of that middle class then rising j rapidly into importance. The Dutch followers of the House of Orange introduced many improvements into our system of domestic building. The refine- J||, T ■ THEIR ORIGIN AND DEFINITION. 179 [ I I M al er fe j its le* ments of other countries were adapted to our dwell- ings, and economy of space and regularity of ar- rangement began to be regarded as matters of some moment. Then arose speculators in dwellings, a class un- known when the old English manor-house was the pattern for the village, which owed its existence to the resident lord-paramount ; and to these specula- tors it became an object of the greatest importance so to contract their dimensions and increase their contrivances, as to enable them to realise the greatest quantity of property with the smallest outlay of ca- pital or space. With these speculators the modern meaning of the term FIXTURE, as applied to articles of domestic convenience or ornament, originated (a) ; and they, using the term in the sense here designated as “ collo- quial,” from want of any authorised decisions which might define the true and limited meaning of the word, engrafted on that “ colloquial ” sense, at that time in use by both parties, the meaning here designated as “ supposititious,” laying claim to all those con- veniences which their tenants had introduced into their houses, and affixed to the walls and floors, and asserting that these fixtures became their property, inasmuch as having been affixed to the freehold or ^‘realty,” they were irremovable ; “because” — so they argued — “ when once annexed, they became part and parcel of the freehold, and altogether lost their personal character.” The ancient rule of law was altogether in favour Ancient rule of its interpretation by the landlord to his own°^^®'^* gain, inasmuch as it inculcated the principle that whatsoever is affixed to the realty became a part of it; the mere act of annexation merging the per- sonalty in the freehold, just as any term of years fol- lows the purchase of the fee ; or, to use the words (a) There are decisions on record relative to fixtures as early as the reigns of Edward III. and Henry VII., but they possess none of the subtle and distinctive nicety of the modern cases usually referred to. B 2 180 FIXTURES. of the maxim itself, quicquid plantatur solo solo cedity Thus in the outset of the question the thing annexed at once lost its character as personal property of the tenant, and became part and parcel of the real estate and inheritance of the freeholder. Early inva- Now this rule has never been abrogated ; but is, in fact, the law at this day (6) ; subject, however, to exceptions so numerous and important, as to have left to the original maxim little more than its anti- quity. In practice, the owner of the estate rarely, if ever, secures the advantages which this rule was in- tended to confer upon him — the “ general principle is maintained only as a root, from which continual ex- ceptions may spring and, as several learned writers have well remarked (c), so may we repeat, that it is a reflection upon the jurisprudence of the country, that a rule of law, originating in the feudal po- licy of a remote age, and productive of serious in- convenience to the public, should still be retained, while its mischievous consequences are only par- tially and imperfectly corrected by numerous subtle and intricate distinctions introduced by the Courts Present from time to time with that view. Even to the pre- statfS^the subject of fixtures is un- law. settled. Each individual case is decided on its own particular merits, and wdth reference to the peculiar legal character of the litigants. Thus one rule is adopted as between heir and executor, another as itsdistinc- between the personal representative of the tenant for dSerent"^^^” remainder-man or reversioner ; classes of wlulst as between landlord and tenant the greatest in- dulgence is shown to the latter in relaxation of the Effect of the The direct consequence of the ancient maxim of - law to which we have alluded, was that an action for i waste would lie against any one who removed any fixture so annexed ; such removal being regarded as i {b) See judgt. of Parke, B., in MacJcintosJi, v. Trotter^ 3 M. , & W. 184 ; also Marshall v. Lloyd, 2 M. & W. 450. ® (c) See Amos & F. on Fixtures, Introd. 25 ; and Wood- '? fall’s Landlord and Tenant, by Wollaston, p. 447, 5th edit. 'ii ancient maxim THEIR ORIGIN AND DEFINITION. 181 a damage done to the freehold inheritance. But with the rapid advance of trade and manufactures, riginofthe expediency, increasing the favour and indulgence ^^‘^eptions. shown to them from very early times by courts of justice, soon led to extensive invasions of the rule, and to the establishment of numerous precedents for exceptions and limitations. The increase of com- merce and wealth moreover gave a value to personal property which was unknown before, and established a claim to some share of that protection which had previ- ously been accorded exclusively to real estate. Hence, step by step, arose the present modification of strict doctrine and practice respecting fixtures — commen- cing with the limited recognition of their substantive personalty as distinct from the freehold — and ending in making the ancient rule the modern exception, and establishing as a principle the rights of ownership in them, and consequently, the exercise of its privi- leges in the right of severance, or of sale. It would be beside our purpose to inquire into the various ways in which the law of fixtures operates in case of severance, as to how far the thing annexed remains personalty after annexation ; or, whether it for the time becomes realty, subject, how- ever, to be again reduced to its personal condition on severance. It may suffice to observe that, for some purposes, the law regards a fixture as person- alty, and for others it treats it as part of the freehold. As an instance of the former, the seizure of fixtures under a fieri facias may be mentioned; and of the latter, the fact that, until after severance, an action of trover will not lie to recover them. But it must be observed, that these distinctions are neither wanton nor absolute, but arising out of rules of law, which it were out of place here to discuss. t It must be borne in mind, that the right of General rule tenants to sever and remove chattels affixed to 0*1^° appS* freehold, as explained in this Treatise, is to be under- whJre^there stood as applying only to cases where there is no aye^ement?^ specific agreement between the landlord and the tenant on the subject. The terms of any definite 182 FIXTURES. Other consi- derations which affect the right to remove fix- tures. arrangement, or special contract on the subject, will, of course, preclude all dispute as to the general law of fixtures ; and the rights and liabilities of the respec- tive parties must in such a case be determined ac- cording to the strict literal terms of their agreement. Whilst it must be admitted that the invasions of the ancient law, respecting annexations to the free- hold, had their origin, as already remarked, in the favour shown to trade and manufacture by courts of justice, and the desire to afford increased protection to personal property ; yet it must not be supposed that this indulgence was granted from these consi- derations alone. On the contrary, the limitations and exceptions subsequently established, have them- selves been modified by the circumstances of each individual case, and by some principles apparently laid down, but of which it is not always easy to dis- cover the right application. Thus where a fixture has been annexed to the estate confessedly for the pur- poses of trade, or to facilitate the processes of some manufacture, the right of removal has not been affirmed absolutely on that account, but with a re- ference to other considerations ; such as the existence of some local custom (c?), with regard to the removal of such a fixture (e) ; the amount of injury occasioned to the freehold by its removal ( / ) ; the perfectly per- sonal nature of the article before its annexation; and its comparative value to the respective claimants. And on looking back to the early and leading cases on the subject, it will be found that, both in the ar- guments and in the judgments, these principles were more or less relied upon, and were never entirely (d) Culling v. Tuffnal^ Bui. N. P. 34 ; Lawton v. Salmon, 3 Atk. in notis; Wetherell\. Howells, 1 Camp. N. P. C. 227 ; Davis V. Jones, 2 B. & Aid. 165 ; and Trappes v. Harter, 3 Tyr. 603. (e) Buckland v. Butterfield, 2 B. & B. 54. (/) In Lawton v. Lawton, Lord Hardwicke said, that it was a very true maxim in the doctrine of fixtures, that the prin- cipal thing shall not be destroyed in taking away the acces- sary ; and see Avery v. Cheslyn, 3 Ad. & E. 75. THEIR ORIGIN AND DEFINITION. 183 overlooked, even where the decision ultimately turned on other points. Thus, then, a consideration of the ancient rule of law, as alFected by the lapse of time and the influ- ence of circumstances, has enabled us to arrive at our third and final meaning of the word, viz. its “legal” or real sense. This, as we have here endeavoured to show, owes its origin to the rival interests of the tenants’ or “ colloquial” reading, and the landlords’ or “ supposititious” reading; and from a modification of the several claims of these two contending parties, the word has in course of time assumed its present limited, defined, and legal sense. In this legal definition, — which it is our intention Definition of to adopt throughout the present treatise, we hold Jure'TJ em- ' FIXTURES TO BE THOSE PERSONALTIES, WHICH, P^ed ^ ^ throughout BEING NEITHER CHATTELS NOR FURNITURE, HA VE the present BEEN ANNEXED TO THE FREEHOLD BY SOME PARTY NOT POSSESSED IN FEE. 184 CHAPTER II. OF THE RIGHT TO REMOVE FIXTURES AS MODIFIED BY THEIR NATURE AND PURPOSES. Having thus limited and defined the word Fixture, in the view which we have, after due consideration, adopted, it may be as well before proceeding to treat of its various classes in subdivision, to explain what kind and degree of annexation to the freehold is ne- cessary to take away the character of furniture, or chattel, and constitute that of fixture. What con- For this purpose, it appears that mere contiguity ?xtur?^ or juxtaposition will not suffice. Anything brought and laid upon the lands, or in or upon any building affixed to the land, does not thereby become a fix- ture, there being in such a case no annexation to the Not mereiy freehold, but a mere contactwithit(a). Thusabarn(6) t?e freehffi built upon battens, or blocks of wood lying upon the ground, but not fixed in or to the ground, is not a fixture. So also if goods or buildings are merely Nor upon placed, and rest upon, without being let into a brick affixed t?the®^ Other foundation, and can be removed without soil- injury to the brickwork, they remain chattels, al- though the foundation be affixed to the soil as part of the freehold, and cannot be severed, and although it was constructed for the express purpose of sustaining such buildings, or other articles (c). Thus, where cer- tain vats on the premises of a distiller were supported by and rested upon brickwork and timber, and certain other vats stood on horses, or frames of wood, which were not let into the ground, but stood upon the floor, the Court held that they passed, under the Bankrupt Act, 21 Jas. I, c. 19, to the assignees, as (a) Hallen v. Runden, 1 C. M. & R. 276. {b) Elwes V. Maw, 3 East, 38, and case cited from Buller’s N. P. 34. (c) Horn v. Baker, 9 East, 215. what constitutes a fixture, &c. 185 goods and chattels^ in the disposition of the bankrupt; and that they were, in this respect, distinguish- able from stills set in brickwork and let into the ground, which must be considered as part of the freehold {d). So a varnish house built on a wooden plate, lying on brickwork ; — a windmill raised upon posts ; (e) — a stable (/) and windmill supported on rollers, and the like, are instances of imperfect an- nexation to the soil, and are not, therefore, to be classed among fixtures. But perhaps the strongest instance in elucidation Nor even of this principle is to be found in a more recent cision {g). Certain pieces of machinery called jibs, (A) fixed to the were placed in caps or steps of timber fixed into aare^ut ^ building, and were the uprights which turned round the work in the caps and steps, these jibs were may easily be fastened by pins above and below, and might be taken out of the caps or steps without injuring them injury, or the building, but not without being, to some extent, injured themselves. The Court of King’s Bench were of opinion, that these jibs, from their mode of construction, were not properly fixtures at all, but mere personal chattels. So (i) machinery fixed to the floor of a building by bolts and screws, which may be removed and replaced without injury to the building or the machinery, the bolts and screws being only employed to secure the stability necessary for the working of the machinery, such machinery is not a fixture, but a chattel. So (/*) windows not hung nor beaded into frames, but kept in their places by laths nailed across, are chattels only. This case brings us to a consideration of the sub- Application ject of fixtures altogether novel in its application, although its influence has been silently and imper- ing trade to ° j r the definition id) Penton v. Robart, 2 East, 88. of fixtures. (e) Rejp V. Inhab. of Londonthorpe, 6 T. R. 377. (/) 1 Hen. Blackst. 259. * \g) Davis v. Jones, 2 B. & Aid. 165. {h) For a definition of “jibs,” see the Glossary of Techni- cal Terras. (z) Duck V. Braddyl, M‘Clel. 217, and 13 Price, 455. {k) Rex V. Hedges, 1 Leach, 201. B 3 186 FIXTURES. ceptibly acknowledged in all the decisions hitherto recorded. This consists in looking to the building trade for the strict definition of those nice distinc- tions with which this law abounds ; and in the sub- divisions of this trade we shall find a true interpret- ation of its difficult phrases. The early builders were all either masons, sculptors, bricklayers, or carpenters : with them more delicate work was overlooked ; stucco and paint furnished their interior decorations, and the useful medium of glass was altogether unknown. The fame of Archimedes rests principally on the invention of the screw ; but this, at the time of its invention was looked upon solely as an instrument of enormous power, and a means of multiplying force. But our modern system of construction engrafted on the trade of carpentry a more delicate and care- ful system of work in joinery ; and as the nails of the carpenter were found not only to tear the ad- jacent work in their removal, but also to shake it with the heavy blows of the hammer, the screw was adopted as the means of rendering work easy alike of annexation and removal, with but little waste or damage. By this distinction of nails and screws we draw onhe^Xis-** our line of fixtures. The nail is jnvariably used by tween na^s’ builder where} firm and lasting work only is re- and screws to qui red ; the screw in every case where future altera- rduon of fix- may be needed, or where neatness is a deside- tures. ratum. No screws are ever used in the essential portions of a house, as joists, partitions, wall plates, door or window-frames, floors, or roof timbers; whilst on the other hand, nails are not used for fixing bells, baize doors, chimney backs, hat rails, cornices, stoves, or any of those personalties which are generally so considered. In short, the Courts would seem tacitly to have adopted the builder's dis- tinction, more especially in those cases which affect domestic and trade fixtures, inasmuch as they have declared a difference to exist between wainscot fas- tened with screws, and wainscot otherwise fast- First pur- pose of the screw. Adaptation of its use. A nrvK/kaftrkn I SUBDIVISION OF FIXTURES. 187 ened (Z) — and between cornices so fastened, and cor- nices otherwise fastened. Although in this latter case we are inclined to think that the distinction (somewhat indistinctly reported) was intended rather to draw a line between exterior and interior cornices ; or those altogether ornamental, and those which form a component part of the building {m). Again, it was held that a cupboard nailed to stand-fasts let into the floor was affixed to the freehold, and therefore irremovable (n) ; whereas it is well known that such cupboards fastened with screws are removed daily. This view is fully adopted by the rule laid down by the learned authors before cited (o ) ; — “ That things which a tenant has fixed to the freehold for the pur- poses of trade or manufacture, may be taken away by him, wherever the removal is not contrary to any prevailing practice ; where the articles can be re- moved without causing material injury to the estate ; and where, in themselves, they were of a perfect chattel nature before they were put up ; at least have in substance that character independently of their union with the soil : or, in other words, where they may be removed without being entirely demolished, or losing their essential character or value.’’ It is not, however, necessary that all these conditions should be fulfilled, in order to justify the removal of a trade fixture ; perhaps, indeed, the indulgence of the Court might be extended to the tenant where not even one of them was complied with. But in cases where the above circumstances do concur, it may be laid down with confidence that the right of removal would be confirmed. The favour shown to trade and manufacture, in the power given to sever and re- move what has been affixed to the freehold for those purposes, would probably extend to every case where (/) Elwes V. MaWy 3 East, 38. {m) Avery v. Cheslyn, 3 A. & E. 75. (w) The King v. The Inhabitants of St, Dunstan's, 4 B. & C. 686. (o) Amos & F. on Fixtures, pp. 43, 44. 188 FIXTURES. Instances of constructive annexation. Heir-looms. the fixture could be removed without great and se- rious injury to the substance of the estate ; and where it could not, common sense and justice seem to re- quire that the ancient rule should be allowed to pre- vail, and the chattel affixed be held to have become part of the inheritance, and therefore to be irremovable. There are, however, certain cases of constructive annexation, in which the articles, though in them- selves chattels, and not literally affixed to the free- hold, are yet so intimately connected with it, and so essential to the enjoyment of it, that the law regards them as part and parcel of the realty. Of this kind are keys, rings, &c. {p) ; and a mill-stone, though removed from the mill to be picked, that it might grind the better {q). So the title-deeds and charters of an estate are attendant on the inheritance : and the deer and fish in a park or fish-pond pass with the estate (r). Under this head heir-looms may be classed, being chattels which, although ordinarily they would pass, with other personal property of the deceased pro- prietor, to his personal representatives, yet, by parti- cular custom, descend to the heir, along with, and as members of the inheritance (s). Of these and similar adjuncts of the inheritance, however, it is not our object to treat, but to confine ourselves speci- fically to that description of personal property, which, on annexation to the freehold, falls within the legal definition of “ fixtures.” The doctrine of constructive annexation may nevertheless help to explain the de- cision of the Court in Sheen v. Rickie [t), that after verdict it should not be inferred that “ fixtures ” must necessarily mean things affixed to the free- hold. Having thus limited and defined the constitution {p) Lifford's case, 11 Co. 50. (?) Ib. (r) 14Vin. Abr. 290. (s) Ib. (t) 5M. &W. 175. SUBDIVISION OF FIXTURES. 189 of fixtures, we may now proceed to consider them as modified by their particular nature or purpose ; and this portion of our subject may be best subdivided into the four heads of — 1. Trade; 2. Agricultural; 3. Domestic ; and 4. Mixed. Each of which sub- jects we will proceed to consider in detail, having first briefly set forth their distinctive characters. 1. Trade fixtures are those which have been Trade fix- affixed to the estate by the tenant, for the purpose of carrying on his trade or manufacture. Of this kind is every species of machine or apparatus, essen- tial or convenient to the tenant in his business, and which he annexes to the freehold for the purpose of carrying on his occupation — as brewing vessels and pipes, vats, stills, cisterns, coppers, fire-engines, fur- naces, counters, closets, machinery, presses, pumps, reservoirs, and an innumerable multitude of other articles, without which the endless variety of manu- facturing processes could not be carried on. 2. Agricultural fixtures are those erected for the Agricultural, more convenient carrying on of husbandry, such as barns, beast-houses, foldyards, cart and waggon- houses, fuel-houses, and many others. 3. Under the head of domestic may be classed Domestic, those internal fixtures and fittings, the object of which is the comfort and convenience of the tenant ; and these are either of a directly useful kind, as bells, blinds, bookcases, shelves, stoves, ovens, coppers, cisterns, &c. ; or are put up with a view to refinement and elegance, and are merely decorative, as marble chimney-pieces, ornamental cornices and hangings, cabinets, pier-glasses, marble slabs, clock-cases, &c. ; many of which may more properly be described as fixed furniture than fixtures; a distinction, as we shall afterwards see, which is sometimes of im- portance. 4. Beside the above, there are certain other fix- Mixed, tures, which partly subserve the purposes of trade, and partly the enjoyment of the real estate and ot the profits of the land. Of this kind are fire-engines 190 FIXTURES. in collieries (m), and cider-mills (a*), and salt-pans (?/). Each of these is a mixed case between enjoyment of the profits of land^ and carrying on of a species of trade. From this brief general view of the nature and dif- ferent classes of fixtures, we proceed to a considera- tion of the rights and remedies which the law confers on the several owners of them ; and to those other topics of a practical nature of which it is our purpose to treat. Sect. I. — Trade Fixtures. The privilege of severing and removing such an- nexations to the freehold as were made for the pur- poses of trade and manufacture, was not only among the earliest which were granted on this subject, but it is the best established, the most definite, and the most extensive. To pass by the earlier and more doubtful cases, this privilege was clearly and dis- tinctly recognized by Holt, C. J., in Poole’s case(2:); and, by a long series of subsequent decisions, it has been amply and authoritatively confirmed. Poole’s case. Poole’s case was that of a soap-boiler, an under- tenant, who, for the convenience of his trade, had put up vats, coppers, tables, partitions, and laid down paving, &c. ; all which things had been taken under an execution against him ; on which account the first lessee brought an action against the sheriff for the damage done to the house, and which he was liable to make good. Lord Holt, C. J., held, that, during the term the soap-boiler might well remove the vats he set up in relation to trade ; and he said (u) Stuart V. Earl of Bute, 3 Ves. 212, and 11 Ves. 657. Ipe) Lord Dudley y. Lord Ward, Amb. 114. (y) 3 Atk. 14. (z) 1 Salk. 368. TRADE FIXTURES. 191 that he might do it by the common law (and not by virtue of any special custom) in favour of trade, and to encourage industry. After this decision, the right of the tenant to re- Principle on move trade fixtures, may be considered to have been fully established. But moreover, the principle >^e“ovabie. on which that right is founded, was then clearly expounded, and has ever since been admitted and acted upon in similar cases. The motive which operated on the minds of the Judges in relaxing the strictness of the ancient rules of law, and admitting innovation, was a consideration of the public good. The object was the advancement- of the commercial prosperity of the country, and the support of the interests of trade, which had become the pillar of the state ’'(a), by encouraging tenants to employ their capital in making improvements for the purpose of carrying on their business or manufacture, with the certainty of securing the benefit of their outlay at the end of their respective terms. The extent to which this privilege has been carried is, however, of the greatest practical importance, and can only be determined by a rapid review of the most important cases on the subject. And first, as to machinery erected for the purposes Machinery, of trade. In Lawton v. Lawton (6), it was determined tliat a fire-engine or steam-engine erected by a tenant for life, should at his death go to his executor, as part of his personal assets. Lord Dudley v. Lord Ward (c) was also a case of a fire-engine to work a colliery , erected by a tenant for life, and was also decided in favour of such tenant. But where a lessee (! M ■;l 11 I IN CASE OF BANKRUPTCY. 225 A bankrupt, becoming the owner as well as oc- Fixtures cupier of a freehold cotton-mill, gave the petitioners an equitable mortgage on it, “together with the mortgage do steam-engines, and also all and singular other thetheossTgnee. movable and fixed machinery and steam-pipes, steam- mill and premises, or occupied or used therewith ; and the bankrupt continued in possession of the mill and fixtures up to the period of his bankruptcy ; — Heldy that all parts of the machinery and fixtures, which were so attached to the premises as to be legally affixed to the freehold were not to be con- sidered as “ goods and chattels within the meaning of the 72nd clause of the Bankrupt Act, and the assignees, therefore, had no right to claim them as against the equitable mortgagee (z). A, being tenant in fee of a cotton-mill, in which there was a steam-engine, boilers, &c., mortgaged the mill, ngine, boilers, &c., to 5., but remained in possession till his bankruptcy. The entablature plate of the engine, which however formed no part of the work- ing apparatus, was fixed to the freehold of the mill ; every other part of the engine being secured by bolts and screws, so that it might be removed without injury to the building: — Heldyihd^t the steam-engine was not in the order and disposition of A. at his bank- ruptcy (a). The owner of a freehold gave a mortgage for a term of years, but continued in possession ; while in possession he added fixtures : — Held, that they were not in his reputed ownership (5). In determining whether certain engines, machinery. Custom of or other articles in the nature of fixtures would pass to beuke? to the assignees as “ goods and chattels in the order conside- and disposition of the bankrupt,” assistance may frequently be derived from reference to the custom {z) Ex parte Wilson, 4 Dea. & Ch. 143 ; 2 Mont. & Ayr. 61 ; and see Flath. Arch. Bkptcy. 261, 10th Ed. (fl) Hubbard v. Bagshaw, 4 Sim. 326. See also ex parte Lloyd, 1 Mont. & Ayr, 494 ; 3 Deac. & Ch. 765. {b) Ex parte Belcher, 2 Mont. & Ayr, 160; and see ex parte Scarth, 4 Jur. 826. D * 226 FIXTURES. Special cove- nant in a lease, re- serves the fixtures in case of bank- ruptcy. prevailing in the locality in respect to those articles (c). Therefore, where it is a common and notorious practice to let any articles to the tenant with the premises, the property in them remaining in the lessor, it seems clear that the assignee would not be entitled. Thus, machinery affixed to the freehold of iron-works is not considered to be within the order and disposi- tion of the bankrupt trader, where, by the custom of the country, such articles are furnished by, and con- tinue to be the property of the lessor (d). But where the assignees rely upon the custom of the country to raise a title by order and disposition, but the evidence as to usage is both ways, this will not entitle the assignees ; it lying upon them to prove the reputed ownership (e). So the claim of the assignees is liable to be defeated by a covenant in respect of the fixtures in the tenant’s lease. Thus, where a colliery with all the machinery and implements necessary for working it, was leased for a term with a proviso for re-entry for the landlord on non-payment of rent, and a covenant on the part of the lessee, at the expiration or other sooner deter- mination of the demise, to deliver up the machinery and implements conformably to an inventory an- nexed to the lease, of which a re-valuation was to be made three months before the expiration of the de- mise, and the landlord recovered judgment in eject- ment in Trinity term for a forfeiture for the non- payment of the rent, but did not execute the writ of possession until the 8th of November, and the tenant committed an act of bankruptcy next day : — Held, first, that the landlord was entitled to take posses- sion of all the machinery and implements (some of which had been brought on the premises by the tenant during the term), though no previous valu- ation had been made ; secondly, that the possession of (c) See Trappes v. Harter j 2 C. & M. 153 ; 3 Tyr, 604; and Sup. (d) Ruffard v. Bishop^ 5 Russ, 346. And see Hubbard v. Bagshaw, 4 Sira. 32C. (e) Ex parte Scarth, 4 Jur. 826. IN CASE OF BANKRUPTCY 227 the machinery and implements by the tenant was only qualified, and did not come within the meaning of 21 James I., c. 19, (the old Bankruptcy Act,) so as to bar the landlord’s right of re-entry on the 8th November ; and thirdly, that the tenant’s use of the machinery and implements, in the interval between the judgment in ejectment and the execution of the writ of possession, did not give him^‘^ the possession, order, or disposition ’’ thereof with the consent of the true owner, within the meaning of the statute, so as to pass the property to his assignees (/). (/) Storer v. Hunter^ 5 D. & R. 240 ; 3 B. & C. 368. See ^%QMinshall v. Lloyd, 2 M. & W. 450, D 2 228 Time at 'which fix- tures must be removed. Case of a termor gene< rally. When the term expires by lapse of time. CHAPTER VI. OF THE TIME AT WHICH FIXTURES SHOULD BE REMOVED. The nature of the fixtures which a tenant may re- move is in nowise affected by the nature of his interest in the premises, so that in this respect, whether he be tenant for a term of years, or from year to year, or at will, he may alike claim the pri- vilege of removal. But the time at which he will be permitted to sever and remove fixtures depends materially on the nature of his tenancy. We will therefore, first consider the case where he is a termor, or tenant for a time certain. Sect. I . — In the Case of Termors, or Tenancies of a definite Duration. Here, knowing when his interest in the demised premises will cease by the expiration of his term, he is bound to remove his fixtures before the conclusion of that term. If he fail to do so, the presumption of law is that he has abandoned his property in every- thing which he has annexed to the freehold, and it is consequently considered to belong to the rever- sioner. Hence in all the old cases and rules of law upon the subject, the privilege of the tenant is qualified in this manner. Thus, in the “Year Book,” 20 Hen. VII. 13, the court speaking of the furnaces set up by a lessee for years, says “ during his term he may remove them ; but if he permit them to remain fixed to the soil after the end of his term, then they belong to the lessor.” So, in Poole's case, before cited. Lord Holt says of the soap-boilers’ vats, &c., “ during the term he might remove them, but after the term they be- TERMORS, OR TENANCIES OF A DEFINITE DURATION. 229 came a gift in law to him in reversion and are not removable ” (a). In a recent case {b) where a tenant had left bells where pos- in a house, at the expiration of his term, which landlord afterwards severed, the former brought an action of trover to recover them, contending that although he had no right after the determination of his tenancy to come upon the premises to remove them, yet that he had not lost his property in them, and therefore, so soon as they had been reduced to the state of mere personalties by severance, he was entitled to remove them. The court however held, that by quitting the premises without severing them he had abandoned his property in them, which had thereupon at once become vested in the landlord. The authorities are all agreed upon this point, and where pos- the rule must therefore be considered binding, with tLS" the exception, however, of one case on which different opinions are entertained ; one learned author (c) contends, that where a tenant continues to keeppentonr. possession of the demised premises after the expira- tion of his term, he is still at liberty to remove his fixtures so long as that possession continues, although his legal interest in the land has ceased. This was decided in the case of Penton v. Rohart (^^), and in his judgment, Lord Kenyon intimated an opinion that a tenant had a general right to come upon the premises after the term was expired, for the purpose of taking away any fixture which he might have removed during the term. We are of opinion, however, that the case itself does not establish any such right, but decides only, that where the tenant’s possession of the premises continues, although his term has expired, he is permitted to take away the fixtures which he previously had a right to claim. The cases are clearly (a) See Lee v. Risdon, 7 Taun. 191 ; Davis v. Jones, 2 B. & Aid. 165 ; and Bucklandv. Butterfield, 2 B. & B. 54. (fi) Lyde v. Russell, 1 B. & Ad. 394. (c) Amos & F. on Fixtures, pp. 88, 95. 2 East, 88. 230 . riXTURES. different where a tenant has left the premises, and where he continues to hold them ; in the former, the law presumes an abandonment of the property ; in the latter, no such presumption can exist during the actual occupancy of the tenant, who is still in the possession and enjoyment of those very articles with respect to which the presumption of abandonment would arise. This case is, however, considered by some to establish the doctrine, that so long as the actual possession is retained by the tenant, so long his right to sever and remove fixtures remains. On the other hand it is contended by a learned writer (e), with great plausibility and force, that the case of Penton V. Robart, being at variance with all the other de- cisions on the subject, must be considered as over- ruled, and as establishing a principle which has not been recognised by the courts, and would not be sanctioned were the question to be litigated. He argues, that immediately on the expiration of the term the ‘‘ right to the fixtures vests in the rever- sioner as a part of the land, and if he were to bring ejectment he would be entitled to recover the land and everything annexed thereto and further, that if this claim were liable to be defeated by the tor- tious holding over of the tenant, the latter would be allowed, contrary to every principle of law and equity, to take advantage of his own wrong. Right to fix- such a difference of opinion as to the dictum cSnuance ^ Consideration of the custom may per- of possession haps help US to arrive at a just decision. Now, by Sstom"^^^^^^® custom, it is well known that if a tenant con- tinues his tenancy after the expiration of his original lease, he so continues it by the silent customary consent of both parties, subject to the covenants and mutual obligations of the lease last expired. To such an extent does this custom prevail in the mid- land and western counties of England, and in South Wales, that it is very usual to have leases, both (e) Gibbon’s Manual of Law of Fixtures, pp. 41 , 42 . TERMORS OR TENANCIES OF DEFINITE DURATION. 231 agricultural and domestic, for one year only, whilst the tenancies, continuing through many subsequent years are held “by reference” upon the terms of the expired lease. Looking then at this very extensive usage, and considering it to be perfectly fair and rational, we cannot but consider it a good guide in this question ; and therefore we should at once adopt the first of the opinions here quoted, and say that so long as the tenancy continues (of course without hostility) by the silent consent of both parties, so long the tenant is entitled to every benefit conferred on him by the expired lease ; and therefore, amongst others, to the removal or appropriation of those fixtures to which he would have been by law entitled previously to the determination of his registered term. A very recent case {f) corroborates most materi- Case in sup- ally this view of the question. The tenant’s term, by virtue of a proviso in the lease, was forfeited by the bankruptcy of the lessee, and the lessor entered upon the premises in order to enforce the forfeiture, and three weeks afterwards, the assignees of the lessee still continuing in possession, removed and sold a fixture put up by the lessee for the purposes of trade, and the jury found that it was not removed within a reasonable time after the entry of the lessor : — Heldy that they had no right so to remove it, and that the lessor might recover it in trover. And it would seem that such would have been the case even without such finding of the jury. “ The rule,’^ says Baron Alderson in delivering the judgment of the court in that case, “to be collected from the several cases decided on this subject seems to be this ; that the tenant’s right to remove fixtures continues during his original term, and during such further period of possession hy him, as he holds the premises under a right still to consider himself as tenant^' Hence, the extension of the tenant’s right allowed in Penton v. Robart is at once recognised and qualified (/) Weeton v. WoodcocIHf 7 M. & W. 14. 232 FIXTURES. by these expressions, and it would seem therefore that the doctrine of an absolute vesting of the pro- perty in fixtures in the landlord at the expiration of the term, is liable to exception in every case where the tenant continuing in possession has a right still to consider himself as an accepted tenant, either by the express permission of his landlord, or by mere sufferance in the neglect of the latter to make an entry on and resume possession of the premises. But that if on the other hand the tenant hold over hos- tilely so as to become a trespasser, as in the case of Fenton v. Robart he will have lost all right to remove the fixtures. Whether the If the property in fixtures vest in the reversioner legal pre- under certain circumstances, through a presumed favourofthe dereliction or abandonment by the tenant, it is cipaweo? natural to inquire how far this legal presumption is behjicj’e- capable of being rebutted by any act or formal “ ■ declaration of the tenant on quitting the premises by which he disclaimed all intention of giving up his right to the landlord. The effect of such an act or. declaration has never been decided ; but it is probable that the rights of the reversioner would be held to be unaffected by it, on the principles laid down in Marston v. Roe {g). Sect. II. — Tn the Case of Tenants whose Interests are of uncertain Duration. It has never been explicitly decided whether such parties are entitled to any definite period after the expiration of their tenancy for the removal of their fixtures, but it may confidently be concluded that an exception would be established in their favour on the ground of certain analogies in other cases. A reasonable Thus, the executors of a tenant for life have a reason- {g) 8 Ad. & E. 59 ; and see Davis v. Jones, 2 B. & A. 166: but see Beaty v. Gibbons, 16 East, 116. IN CASE OF FORFEITURE OF LEASE. 233 able time allowed them to remove fixtures after the time allowed death of their testator (h) ; and the lessee of a clergy- man wIk) resigns his benefice is considered entitled to emblements (i), because his tenancy is determined by the act of another. In the case of Wanshorough V. Maton {j), in which this question might have arisen, the article in dispute, “ a wooden barn which rested by its own weight on a stone foundation,” was decided to be a chattel and not a fixture, and on that point alone the judgment was given. Supposing a tenant whose interest is of uncertain duration to have a right to remove fixtures after it has expired, it is clear from Weeton v. Woodcock {k), that such right must be exercised within a reason- able time. In that case three weeks was held not to be a reasonable time. It will always be a question for the jury, whether, under all the circumstances, due diligence has been used by the tenant, and no general rule can possibly be laid down upon that subject. Sect. III. — In Case of Forfeiture of Lease. Where the tenancy is determined by the act of the tenant, the law allows no indulgence ; so that if the tenant incur a forfeiture and the landlord enters, he is entitled to the freehold as it stands, and the tenant has no right to sever the fixtures (Z). By the terms of the rule, as laid down in Weeton v. Woodcock (above cited), a tenant who has done any act whereby he forfeits his lease is excluded from the privilege of having time allowed to sever his fixtures, for if the reversioner enter for the forfeiture, the tenant can no longer, even though he remain in pos- {h) Bulwer v. Bulwer, 2 B. & Aid. 470. (i) For a definition of Emblements, see ante, p. 212. Ij) 4 Ad. & E. 884. {k) 7 M, & W. 14. (/) Storer v. Hunter, 3 B. & C. 368. D 3 234 FIXTURES. session, have a right to consider himself as a tenant, but must be looked upon as a trespasser. Anincum- So, US we have seen above, an incumbent who ing his Hv?ng living is not entitled to indulgence, not en titled although his lessee is (m), for the resignation is his bey^nVS? ^^n act, and that act determines at once his estate term of pos- and interest in the lands and hereditaments belonging session. .. ..i, o o to the benefice. And this must be taken as a criterion to be ap- plied to most cases; viz., whether the termination of the tenancy originates with the landlord or the tenant. (m) Bulwer v. Bulwer^ 2 B. & A. 470; and supra, p. 233. 235 CHAPTER VII. TRANSFER OF FIXTURES. Under this head it is proposed to treat of those changes of the possession and property of fixtures which are the result of contract ; the consideration of the transfers frequently effected by act and operation of the law under certain circumstances, having been already enumerated, as in the case of bankruptcy, insolvency, &c. It is obvious that property in fix- tures, as in all other things, may be made the subject of private contracts of various kinds, such as sale and purchase, by which the ownership is changed; or mortgage, by which the ownership of the property becomes subject to certain limitations and restric- tions, in consequence of the rights and claims of the third party, the mortgagee ; or, lastly, by bequest, a mode in which a transfer of the property is effected by the will of the testator. A few words concerning each of these in their order. Sect. I. — Of the Transfer of Fixtures by Sale and Assignment. It has long been settled, that under the word /awe/ Transfer of all buildings and erections affixed to the soil will pass ; on the general principle affirmed in that ancient theVeon^ maxim of law, “ Cujus est solum ejus est usque ad coelum'^ {a). And this, notwithstanding other build- ings standing on the ground, are specifically men- tioned and described in the conveyance. (a) 1 Com. Dig. Grant, E. 3 ; Co. Litt. 4 a. ; 2 Roll. Ab. Graunt. 1. 236 FIXTURES. The same principle operates on fixtures. Effect of a new agree- ment. Making no mention of fixtures. Conveyance. On a similar principle, whatever personal chattels have been annexed to the freehold, become incident to the freehold, and will be included in a conveyance of the land in general terms. Thus it was decided, that vats fixed in a brewhouse or dyehouse should always go with the freehold, and pass by feoffment together with the inheritance (b). In a more recent case (c), a windmill described as a wooden edifice, built on brickwork, and anchored into the ground by spores and land-tyes, being one foot under the surface of the earth, but removable at pleasure, was found by the jury not to be a fixture ; nevertheless, its connexion with the land was of such a nature, that it seems to have been considered that by a conveyance of the land the purchaser would have been entitled to the mill without any mention of it in the deed. Although by the grant of a house the fixtures will pass, yet it is otherwise, where by the enumeration of particular fixtures in the convey- ance, an intention is shown to exclude other fixtures of greater value and importance (d). We have already seen (e) the exemplification of the principle now under consideration, in the effect which a new agreement or a subsequent lease has upon the rights of a tenant who, during the conti- nuance of the first demise, had affixed chattels to the freehold, which he would have been entitled to remove during the term. If the new contract made no men- tion of fixtures, the whole property as it stood was considered to pass to the lessee under the demise ; and the whole of it, without the severance of any- thing, the latter was held bound to restore at the determination of his tenancy (f). The rule respecting the passing of personal chat- (i) Year-Book, 21 H. 7, 26. (e) Steward v. Lomhe, 1 B. & B. 507 ; 4 Moo. 281. {d) Hare v. Horton, 2 Nev. & M. 428, 5 B. & Ad. 715. (e) Ante, p. 215. (/) Fitzherbert v. Shaw, 1 H. Bl. 258 ; Thresher v. East Lond. Water-works Comp. 2 B. & C. 609 ; Ward v. Smith, 11 Price, 19. BY SALE AND ASSIGNMENT. 237 tels attached to the freehold, by a conveyance of the freehold itself, was carefully considered in the case (before quoted) of Colegrave v. Dias Santos {g). The plaintiff being the owner of a freehold mansion- house, advertized it for sale by auction, and issued Coiegrave printed particulars, which took no notice of certain Santos, fixed articles, as mash^tubs, grates, closets, shelves, &c. The defendant became the purchaser at the sale, the house was conveyed, and possession given to him, the articles in question still remaining in the house : — Held, that these articles passed to the vendee under the conveyance of the freehold, in the absence of any stipulation that they were to be taken and paid for separately. The court seems to have been of opinion, that the rule between vendor and vendee was the same as that between heir and ex- ecutor ; for Bayley J. observed, “ In the case of an heir selling a house which descends to him, in the absence of any express stipulation, he would be taken to sell it as it came to him, and the fixtures would pass.” A widow, carrying on the business of a vic- tualler, made a settlement previous to her second marriage, of her property; and she assigned upon the trusts of the settlement, ‘‘ all and every the household goods, furniture, plate, linen, china, books, stock in trade, brewing utensils, and all other her effects — Held, that not only the stock in trade, &c. existing at the date of the settlement, but other articles afterwards in the course of the trade substi- tuted for them, together with the good-will of the business, passed by the settlement {h). The circumstances must be very peculiar to exclude Peculiar dr- fixtures from passing under a general conveyance the freehold. Hence it is necessary, in an agreement exclude fix- for the sale of a house, if it be intended that things of a personal nature annexed to it should not be "«der general included, to make an express reservation of them, of th^free! It is a common and convenient practice in the agree- ig) 2 B. & C. 76. Ih) England v. Downs, 6 Jurist, 1075. 238 FIXTURES. ment or deed to provide for the purchase of such articles at a valuation to be made in some manner agreed upon ; the articles themselves being enume- rated in an inventory, to preclude dispute as to Avbat shall be reckoned as fixtures. If no such inventory be made, only such articles should be included in the valuation as would be reckoned assets as between heir and executor; and which would not therefore pass with the inheritance as part of the freehold. Demise, with In the case of a demise, where it is provided that ?aSion fixtures are to be taken at a valuation, the incoming tenant would purchase only those things which are considered fixtures, as between landlord and tenant ; and which the latter would have been held entitled to remove had he put them up during his term. Assignment. The rule is the same in the case of a tenant assign- ing his lease during the term and disposing of the fixtures to the assignee. Where an incoming tenant, at the commencement of his term, purchases the fixtures of the landlord, he acquires a right and property in them under the contract of sale, quite distinct from that given to him by the general law ; and if he fail to remove them during the term, he would not be considered to have abandoned his property in them, or lost the right of removal. Whether a contract for the sale of fixtures Effect of the f^Hs within the 4th section of the Statute of Frauds, Frauds interest in land,^’ is an important question which appears never to have been raised or decided, until in a very recent case. Special An Outgoing tenant agreed a few days before his tenancy expired, at the request of his landlady, not tenSi remove the fixtures, she engaging to take them at a valuation to be made by two brokers. The lease expired, and the tenant having quitted the premises without severing the fixtures, delivered up possession by sending the key to the landlady. On the follow- ing day the fixtures were valued by the two brokers at 40/. 10s., and they signed the appraisement: — Heldy that the matter bargained for was not a sale DEMISE OF FIXTURES. 239 of an interest in land within the 4th section of the Statute of Frauds, the plaintiff having, at the defend- ant’s request, merely waived his right to remove the fixtures. Nor was any note in writing, &c., under the 17th section, required as for the sale of goods above the value of £10. But the value of the fix- tures, although not severed, might be recovered in an action of Indebitatus assumpsit, for fixtures and effects bargained and sold, and sold and deli- vered (i). Where the contract relates to a transfer of fix- Agreements tures together with the land, it clearly falls within £tu?eswith the 4th section of the statute; and the agreement for the sale, valuation, &c., must be in writing, and executed according to the formalities therein pre- scribed. If, however, fixtures be sold with a view to an immediate severance, or the contract be between parties who are unable to transfer any interest whatever in the land ; as between an out- going tenant at the expiration of his term, and the incoming tenant under a new demise ; in such cases, it is evident, by reference to the decisions respecting timber and crops {k), and in accordance with the case last cited, that such a contract would not be held to fall within the 4th section of the statute, as it merely transfers the right to sever the fixtures from the freehold and convert them to chattels (Z). Sect, II. — By Demise, Under a lease, fixtures, if not alluded to, pass to special de- the tenant ; but it is not uncommon, under certain circumstances, for the lease to demise the fixtures (i) Halim v. Runder, 1 C. M. & R. 266 ; 3 Tyr. 959. (At) Parker v. Staniland, 1 1 East, 362 ; Mayfield v. Wadsley, 3 B. & C. 357 ; Smith v. Surman, 9 B. & C. 561 ; Sainsbury v. Matthews, 4 M. & W. 343 ; S. C. 7 Dowl. 23. (J) Mayfield v. Wadsley, 3 B. & C. 357 ; 5 D. & R. 224 ; Evans v. Roberts, 5 B. & C. 829 ; 8 D. & R. 611. 240 FIXTURES. In default of special demise. Landlord cannot re- move fixtures during the term. Icentity of mortgage and convey- ance. expressly with the house or land. Thus, where the value and importance of the fixtures is great, — as in collieries, mills, breweries, and other works of that description, — the plant, machinery, and fixed utensils are let together with the estate, and special terms are introduced into the leases (m). When fixtures are thus demised, the lessee has a special property in them during the term, so long as they continue annexed to the freehold, but if he sever them, his interest is immediately determined, and they revert at once to the landlord. The tenant’s property in such articles is similar to that which he enjoys in trees growing upon the demised premises (w). We have already seen(o), that a demise making no mention of fixtures, gives the tenant a right to the enjoyment of them during the tenancy, at the end of which they revert, of course, to the lessor. In such cases the landlord is unable to deprive the tenant of the use of the fixtures by removing them, nor can he insist on their being valued, or on any further consideration being paid for them. Even if the fixtures have been annexed by the tenant during a former term, and he neglects to remove them during the term, or takes a new lease, or makes a new agreement with his landlord, without reserving his right to remove the fixtures, they are regarded as part of the property demised, and must revert with the freehold to the landlord at the determi- nation of the tenancy. Sect. III . — By Mortgage. Notwithstanding some apparently conflicting de- {m) See instances of this in Storer v. Hunter, 3 B. & C. 368 ; Horn Baker, 9 East, 215 ; Duck v. Braddyl, 1 M*Cle- land, 219. (w) Warrant v. Thompson^ 5 B. & Aid. 826, per Justice Bayley. (o) Ante, p. 239. MORTGAGE OF FIXTURES. 241 cisions (p), there is no valid reason for drawing any distinction between assignments by way of mortgage and ordinary conveyances. As in the latter, so also in the former, the transfer of the freehold, with- out mention of the chattels thereunto annexed, effectually passes the fixtures. A mortgage is, in truth, nothing but a redeemable purchase; and the same rule applies to it as to an ordinary sale. Hence, when the freehold passes by a mortgage deed, the adjuncts or appurtenances of the freehold pass also, unless they be either specially excluded ; or, from the terms of the instrument, or the circum- stances of the case, it can be gathered to have been the clear intention of the parties not to transfer them(^). In the case of Ryall v. Rolle (r), it was decided Ryaiip. that by a mortgage of the freehold fixed utensils ^tensUs’pMs would pass to the mortgagee. But whether the ‘he mort- fixtures are included in the mortgage or not is question of fact, to be decided from a consideration of all the circumstances of the case. In January 1797, several persons carried on business in partner- ship as calico printers ; and in the same month certain premises, on which their works were prin- cipally carried on, were conveyed to one of the partners in fee. The conveyance mentioned the premises to consist, besides land, of dwelling-houses, machine-house, and other buildings and erections, and stated them to be then in the possession of the partner to whom they were conveyed, and another partner. Various buildings and machines were afterwards from time to time erected on the pre- mises by the firm, for the purpose of extending the works. The whole was firmly fixed to the freehold, and stood on that part of the land which was con- {p) See ex parte Quincey, 1 Atk. 477. {q) As to the construction of mortgages in respect of fix- tures, see Hitchman v. Walton, 4 M. & W. 409 ; Langstaff V. Meagoe, 2 B. & Ad. 167; and Trappes v. Harter, post. (r) 1 Atk. 175. 242 FIXTURES. Trappesr. veyed to one of the partners in 1797, but the part ' Harter. question could be removed without material ' injury to the buildings. In the different stock- ; j takings of the firm, the land and buildings were ' always valued and classed separately from the ' machinery and fixtures. In the part of the country where the premises were situated, machinery of this description was constantly bought and sold dis- ,, tinctly from the freehold. The freehold in the pre- ' * mises having been subsequently conveyed to two of j ; the partners, they, in 1828, mortgaged them to the plaintiff’s wife, under the description of all the mes- ■ j suages, dwelling-houses, lands and buildings therein ' mentioned ; “ and also all that and those the steam- engine, mill-gearing, fixed machinery, heavy gear to millwright work, and other matters and things, &c., then standing and being in and upon the thereby 1 ! demised buildings, works and premises, which in any i j manner constituted fixtures and appendages to the freehold of the same or any part thereof.’' All the ma- 1 chinery, fixtures, &c., appeared to have been in the i reputed ownership of the partners who carried on the t works until 1831, when they became bankrupt, and | the defendants were appointed their assignees. The plaintiff, who was the husband of the mortgagee, had inspected statements of the affairs of the part- ners, which treated the machinery as not included | in the mortgage, and had made no objection to such statements. In the month of April, 1831, the assignees sold all the machinery and fixtures, with the exception of two steam-engines, two water- wheels, an iron flooring, and some other articles, and j the greater part of them were removed by the pur- chasers. The articles claimed by the mortgagee were all firmly fixed to the freehold, in such a man- I ner however, that they might easily be removed without material injury to themselves or to the build- ings: — Heldy that the machinery did not belong to . the inheritance, but was part of the personal estate 1l of the bankrupts; and that it passed to the assig- nees, and that the machinery in question was not i MORTGAGE OF FIXTURES. 243 intended to pass, and did not pass to the mortagee, under the mortgage deed (s). In this case the court held, that the assignees were entitled to the fixed machinery in question. Having decided that it was not included in the mortgage deed, the title of the assignees was clear; and therefore whether they claimed the property as “ goods and chattels in the order and disposition of the bankrupts,” or as real estate, seems immaterial. A lessee erected coke-ovens and other trade fixtures upon the demised premises, which he after- wards mortgaged by the following description : — “ All and several the barge-houses, piece or parcel of land, wharfs, and premises comprised in the indenture of lease, together with all ways, paths, passages, lights, easements, advantages, and appur- tenances whatsoever to the said wharfs, barge-houses, and premises, belonging or in anywise appertaining.” The lessee became bankrupt :—Held, that the words of the mortgage-deed were sufficient to pass the coke-ovens and fixtures, and that the assignees had no claim to them (t). Under the mortgage of a mill : — Held, that the stones, tackling, and imple* ments necessary for working the mill, although moveable, passed to the mortgagee(M). So, in the case of an equitable mortgage by the deposit of title-deeds, the chattels annexed to the freehold are considered part of the security. Thus, the bankrupt deposited with the petitioners, as secu- rity for a debt due to them, the title-deeds of certain premises, of which he was seised in fee. In the memorandum of deposit the premises were described as ‘Uhe steam-mills, cottages, lands, buildings, and premises at Langthorpe ; and it was deposed by the solicitor employed by the petitioners to draw up the memorandum, that it was not intended to include the machinery in the mortgage : — Held, nevertheless. Ex parte Bentley. Place V. Fagg. Equitable mortgage of land &c., includes the fixtures. (s) Trappesy. Harter, 2 C. & M. 153 ; 3 Tyr. 604. \t) Ex parte Bentley, 6 Jur. 719. (w) Place V. Fagg, 4 M. & R. 277. 244 FIXTURES. that all fixtures and fixed machinery, whether erected before or after the deposit of the title-deeds, were included in the security (r). Sect. IV. — By Bequest. Apaityhav- If a person has a devisable interest in a house, he Sbie^nterest devise the fixtures annexed to it, and if he has in property, ^o property in the house itself which he can dispose devise his of by will, yet he may bequeath those chattels which the?dn. affixed to it and which he may lawfully sever and remove (a;). Fixturespass The devisee of the land is generally entitled to all SiandT*^*^ articles annexed to it, whether they have been affixed before or after the date of the demise, accord- ing to the legal maxim : — “ quod cedificatur in area OToi&hovLse.legatd cedit legato” By the devise of a house, therefore, the fixtures will pass (y). So, everything constructively annexed to it will be considered as included, such as locks, keys, rings, &c. {z). If a mill be devised at the time one of the mill-stones is removed for a temporary purpose, such stone will pass to the devisee (a) ; for, in the eye of the law, it still remains parcel of the mill. Fixturespass It ^i^s been doubted whether the devisee of an devisees ^^tate would be entitled to claim the chattels annexed house, as to it, if, as between heir and executor, they would and eSutol\ latter as part of the personal property of the deceased ; for, it has been argued, the devisee takes the estate in the same condition as it would have descended to the heir. But notwithstanding the general accuracy of this proposition, it may be safely concluded, that a devise of the house would {v) Eor parte Price, 6 Jur. 327. {x) Shep. Touch. 340, 322. \y) Shep. Touch. 469,470; 4 Co. 62. HerlaJcenden* s Case ; and see Colegrave v. Dias Santos, 2 B. & C. 80. ( 2 ) 11 Co. 50, Lilford's Case. (a) 6 Mod. 187. BEQUEST OF FIXTURES. 245 pass the fixtures, no less certainly than a devise of the land would include the buildings upon it. A devise is but a mode of conveyance, and will be construed with reference to the same principles as those which govern other instruments of transfer. Indeed, there is an analogy in support of this view, which must not be overlooked, in the instance of emblements, which go to the devisee of the land, although the executor, and not the heir, would have been entitled to them, if the estate had descended upon the latter {b). The main question, however, in the construction of bequests, is the intention of the testator; and if that can be gathered from the words which he has used, it will be carried out as far as it is prac- ticable. Therefore, although the devisee would take em- blements as against the executor, yet as against the legatee of all the personal estate he would not be entitled (c), for it would be contrary to the manifest intention of the testator to pass property by impli- cation against the express words of a bequest. A similar rule must by analogy be observed in relation to fixtures. * But, although by a bequest of a house &c., silent a special on the subject of fixtures, the fixtures in that house (whether freehold or leasehold,) would pass with the in bequest, property itself; yet if the bequest be of the house norsp^ecifieS and certain enumerated fixtures, all fixtures other than those so enumerated would be excluded from the bequest by that very enumeration, which would be taken to be also an act of exception (cZ). Fixtures, however, will not pass under the word The word ‘‘ furniture ” in a devise, even although they be ar-in^aXvise tides of mere ornament. Therefore, where a testa- tor gave, mter alia, jewels, the tures. (i) 1 Roll. 89, 727. (c) Coxx. Godsalve, 6 East, 604, n. ; West Anor. Exors. V. Moore, 8 East, 335 ; Vaisey v. Reynolds, 5 Russ. 12. ( annual value of the property must be affixed to the i j. I {a) Rex V. St. Nicholas, Gloucester, Cald. 262, 1 T. R. 723, i note. r {b) Rex V. Hogg, 1 T. R. 721 ; Cald. 266. | !»’ t 5 RATEABILITY OF FIXTURES. 249 hold, and not be mere moveable goods. It is also essential that the estate itself should be rateable, in order to make the accessary rateable (c). Things annexed to the land, which produce Things an- a profit to the proprietors, are rateable, notwith-go^^^Jg^aj^^^ standing the ownership of the land itself may be other individuals. Thus, pipes laid down andgou. fixed in the ground, are deemed a part of the soil, and are rateaWe as such in the parish in which they are situated, according to the profits derived from the pipes in the conveyance of water or gas(fi?). And this, although the surface of the land is al- ready rated on another account. Thus, where the ranger of a royal park was rated for the herbage growing thereon, the proprietors of a company deriving a profit from certain reservoirs and pipes constructed and laid down under the provisions of an Act of Parliament, therein, were also held liable as occupiers for the reservoirs, and also for the occupation of land below the surface of the soil by their pipes (e). In order to confer a settlement, the property Fixtures by which the annual value of the land is improved must be actually affixed to the soil ( /). Therefore manentiy a post windmill built upon cross-braces laid upon^®’"‘^^' brickwork, but not let into or fastened to it, al- though it added to the value of the premises, did not avail to confer a settlement, not being a “ tene- ment ” within the meaning of the Act of Parlia- ment. Where fixtures have been annexed to the land Fixtures by a pauper, no settlement can be gained in respect of the improved value; for, inasmuch as tenant, not the fixtures belong to the tenant, they cannot (c) Rex V. Bilston, 5 B; & C. 851 ; 8 D. & R. 734. (d) Rex V. Rochdale Waterworks Company, 1 M. & S. 634; and Rex v. Brighton Gas Company, 8 D. & R. 308; 5 B. & C. 466. (e) Rex V. Chelsea Waterworks Company, 2 N. & M. 767; 5 B. & Ad. 156. (/) Rex V. Londonthorpe, 8 T. R. 377. r. * 250 FIXTURES. said to be a tenement or thing holden of ano- ther ig). Rateable Premises which are increased in value by the creSedby annexation of fixtures, will confer a right to_^ vote lixtures, will jn the election of members of Parliament, by reason of voting!^^^ of such improved value {h), (g) Rex V. Inhab. of Ottley, 1 B. & Ad, 161 ; and Gibb. Fix. 60. (4) 2 Luders, 440, Bedford Election. 5 251 CHAPTER IX. VALUATION OF FIXTURES. A WRITTEN appraisement of fixtures requires to beAppraise- stamped according to the provisions of 55 Geo. HE Jiresmus?be c. 184, by which the following duties are imposed -.stamped, if the amount of the valuation does not exceed £50, a duty of 2s. Qd,; where it exceeds £50 but does not exceed £100, a duty of 5s. ; where it exceeds £100 but does not exceed £200, a duty of 10s.; where it exceeds £200 but does not exceed £500, a duty of 15s.; and where it exceeds £500, a duty of £l. ’ Where the appraisement has no object but the Exemption, private information of the party directing it, and is not designed to be obligatory as a contract, no ap- praisement stamp is necessary (a). An inventory of fixtures appraised and signed by Appraise- brokers appointed for that purpose by the Parties, is evidence in an action brought to recover their evidence, value, on an account stated (6), but it must be stamped. A written agreement between parties for the sale Agreement and purchase of fixtures, requires an agreement must stamp if they amount to £20. The stamp duty stamped, is, by 7 Vic. c. 21, now reduced to 2s. 6d. (c). Fixtures are also liable to an auction duty of Is. Fixtures n- in the pound, the same as goods and chattels (d). ?£,nduty'^^’ If, on the demise of a house, it be agreed between valuation be- the landlord and tenant that the fixtures shall be taken at a valuation, the appraiser should value ant on com- those only which a tenant would have been entitled Jf^hlTerm. (a) Atkbison^ Another v. Fell ^ Another M. & S. 240. G) Salmon v. Watson, 4 Moo. 73. (c) Wick V. Hodgson, 12 Moo. 213. {d) 43 Geo. III. c. 69 ; 45 Geo. III. c. 30. E 2 252 FIXTURES. to remove had he put them up himself during the term. At expiration If, by a coveuaut in the lease, the landlord agree of the term. make an allowance for the fixtures at the end of the term, those only should be included which the tenant purchased of the lessor on entering upon the premises; and not those which the tenant may choose to affix during the continuance of the term. The appraiser should, however, in all cases, endea- vour to act up to the spirit and intention of the parties to the agreement, whatever it may be. vaiuationbe- As between outgoing" and incoming tenants, all gofng a°nd inAhose fixtures should be valued to the latter which coming ten- the former might have removed during the term ; and it makes no difterence whether they were pur- chased of the landlord or were afterwards added by the tenant. But nothing which the tenant was precluded from removing either by the general law of fixtures, or by the special terms of the lease, can be appraised or sold to the incoming tenant, for at the expiration of the lease, all such articles become the property of the landlord. Lease silent If the landlord demise a house without making rnciudes^”*^^* any mention of fixtures they will be considered as their use. included, and he will not be allowed to recover any compensation for them, either by addition to the rent or by way of sale (e). (e) Thresher v. East Land. Wat. W. Co., 2 B. & C. 608. 2.53 CHAPTER X. DILAPIDATION OF FIXTURES. That fixtures put up by the tenant and removable I by him, are not subject to claims for dilapidation I is evident, since the consequences of his own neglect I fall, as they fairly should do, on himself. I In other respects, however, fixtures are as much liable to claims for dilapidation as any other portion of the property of which they form a part. A lessor therefore has the same claim against his lessee for dilapidation of fixtures, scheduled in the lease, or otherwise clearly established to be his (the lessor’s) property, as for dilapidation in respect of any other matter or thing. As this subject will be more fully treated under its proper head, we must refer our readers to the Article “ dilapidations,” merely repeating the rule, that the rights of a landlord or lessor, in respect of dilapidations of his fixtures are commensurate with, and in proportion to, his rights in respect of other portions of the premises to which such fixtures are attached. We have already seen that a general covenant to repair will include things affixed to the freehold by the tenant during his term, for the con- venience of trade, or otherwise (a). (a) An/e, Chap. IV., Section I., p. 214. CHAPTER XI. I REMEDIES BY ACTION AND OTHERWISE IN RESPECT OF FIXTURES. The earliest remedy given to remainder-men and reversioners for any injury to the freehold was by the common-law writ of waste. This however was limited in its application, extending only to tenancy by the curtesy, tenancy in dower, and guardianship in chivalry, and quite (a) inadequate to the pro- tection of parties whose interests were liable to be afiected by the acts of those who might be in possession of estates. Hence, in very early times statutes were passed (b), giving a right of action ; against tenants for life or years, or pour auter vie, ‘ and against the assignees of such tenants for waste » committed after the assignment. By an equitable f construction of these statutes, tenants from year to 0 year or for part of a year, were held punishable for waste (c). The action of waste thus given by the common law and extended by statute was, however, with all other real or mixed actions, abolished by the 3 & 4 W. IV. c. 27, s. 36. We pass therefore, at once, to the consideration of those other remedies at law, and in equity, of which the parties injured by a waste of the estate may avail themselves. It will perhaps be convenient to consider, in the first 1 place, the equitable relief afforded under certain cir- ■ cumstances, inasmuch as it is rather preventive than ■ remedial or corrective. (a) 2 Inst. 145 ; Co. Litt. 53, a. et sqq. {b) 52 Hen. III. c. 23 ; 6 Edw. I. c. 5. (c) Vin. Ab. Vol. 22, Waste, (Serjeant Hill's note.) 255 r Sect. I. — By Injunction. It may frequently happen that irreparable mischief injunction to may be done to the estate by the person in possession , before the result of an action at law can be ascer- tained. In such cases the court of Chancery, on suf- . ficient cause being shown, will interfere by injunction to restrain the tenant from committing waste on the premises demised. Application is generally made To whom, by the owner of the inheritance whose reversionary interest would be affected by the wrongful act of granted, the tenant, and the interposition of the court is founded on the privity of estate between tenant and reversioner. On some occasions, however, the court will grant an injunction where this privity is wanting, and the act complained of is a mere trespass (d). In all cases the court must be satisfied that the pro- perty in dispute is actually affixed to the freehold ; and in the absence of very clear proof to that effect will refuse to interfere summarily by injunction (e). If waste has already been committed, the court, Account, besides granting an injunction to restrain the tenant from proceeding further, will also grant an account, if the damages be not readily ascertainable, as where ore has been dug from mines (/). If the injury be simple, and the damages can be computed without difficulty, the party will be left to his remedy at law. Injunctions may be granted in the case of cede- injunctions siastical persons to restrain them from committing waste ; as against a rector at the suit of a patron {g) ; persons, or against the widow of a rector at the suit of a patroness during a vacancy (/t). Bishops, deans, and {d) 3 Atk. 21 ; 1 Br. Ch. Cas. 588 ; 6 Ves. 147 ; 7 Ves. 308; 10 Ves. 290; 17 Ves. 128, 138, 281 ; Dick. 670; Swans. 208. (e) Kimpton v. Eve, 2 Ves. & B. 349. (/) Bp. of Winch, v. Knight, 1 P. Wms. 406. * Ig) 2 Atk. 217; Barn. 399 ; S. C. Amb. 176; 1 Bos. & P. 119. {h) 2 Br. Cha. Cas. 552. 256 FIXTURES. Variation in forms of injunction. Remedies action. Special de- claration. collegiate and ecclesiastical bodies, may also be re- strained by injunction at the suit of the crown (i). The relief obtained by application to the court of Chancery may be afforded in other forms besides that of an injunction to stay waste. For example, by injunction to restrain a breach of covenant ; or by a decree to account, &c. Sect. II. — By Action, There are two descriptions of remedy by action in i respect of fixtures, depending partly on the relative 1 situations of the litigant parties, and partly on the view which the plaintiff takes of the injury which he has suffered. Thus, the landlord may bring an action against the tenant, or against a stranger for severing the fixtures (k ) ; or the tenant may bring j an action for a similar cause against the landlord or i a stranger. Again, the party complaining may treat ! the wrongful act either as a breach of contract, or as a j trespass, and vary his form of action accordingly. ! Thus, where an incoming tenant agrees to purchase \ the fixtures at a valuation either of the landlord or of the outgoing-tenant, and takes possession of them, and afterwards refuses to pay, an action of indebi^ tatus assumpsit will lie at the suit of the vendor to j recover the value. But the price of fixtures in a ] house cannot be recovered under a count for goods ! sold and delivered (/). It was held however in a j late case, that a declaration in trespass for goods, | chattels and effects, was supported by evidence of i taking fixtures under a distress for rent {m). ' Under certain circumstances the plaintiff must declare specially. Thus, by an agreement between (i) Amb. 176; 3 Mer. 427. {k) Harrison v. Parker, 6 East, 154. (/) Nutt V. Butler, 5 Esp. 176 ; Ellenhoro. ; Lee v. Risdon, 7 Taun. 188 ; 2 Marsh. 495 ; Hallen v. Runder, 1 C. M. & R. 266 ; 3 Tyr. 959 ; Horn v. Baker, 9 East, 215. (m) Pitt V. Skew, 4 B. & Aid. 206. REMEDIES BY ACTION. 257 the plaintiffs and defendant, the defendant was to accept of the assignment of the lease of a farm from the plaintiffs, and to take the fixtures and crops at a valuation ; he was afterwards let into possession of the fixtures, and the crops were valued to him ; but the lease was never assigned : — Held, that in- debitatus assu?npsit would not lie for the price of the crops and fixtures, and that the plaintiff’s only remedy was by a special action on the agreement (?i). The price and value of fixtures may sometimes be Action on recovered under a count on an account stated. Theg®^J*gd“‘ defendant agreed verbally with the plaintiff to take a house, and purchase the fixtures at a valuation to be made by two brokers. An inventory of the fur- niture and fixtures was accordingly made, described generally as “ an inventory of the fixtures,” &c., with the gross amount placed at the foot thereof. In an action for goods sold and delivered with a count on an account stated, it was held, that the defendant having taken possession of and enjoyed the furniture and fixtures, and paid part of the sum determined by the brokers to be due for the same, he was liable on the account stated for the remain- der (o). If the tenant wrongfully sever the fixtures during Wrongful the term, the landlord may maintain an action on the case in the natureofwaste, for the injury thereby done to his reversionary interest ; and so also, if a stranger sever a fixture, or do any other act permanently in- jurious to the inheritance (p). In addition to this remedy for the damage sustained by him as rever- sioner, the landlord may also maintain trover to recover the value of the fixtures when severed ; or may sue in detinue to recover possession of the things themselves and damages for the detention ; for at the instant of severance, the tenant’s qualified property in them determined, and they became the (n) Neale V. Viney, 1 Camp. 471. (o) Salmon v. Watson, 4 Moore, 73. (p) Jackson v. Pesked, 1 M. & S. 234. E 3 258 FIXTURES. Trover. Action of trespass by landlord. absolute property of the lessor (q). Where a lessee for years mortgaged his lease, and all his estate and interest in the premises, and afterwards became bankrupt ; it w^as decided that the mortgagee might declare in case as reversioner against the assignee of the tenant for the removal of the fixtures from the premises, whereby they were dilapidated and injured ; and that he was also entitled to recover in trover against such assignee, the value of all the fixtures whether landlord’s or tenant’s, which were affixed to the premises before the execution of the mortgage ; although there was a covenant in the original lease to the mortgagor to yield up to the lessor at the determination of the term, “ all fixtures and things to the premises belonging or to belong” (r). But trover will not lie for fixtures until after their sever- ance from the freehold, when they become personal chattels (5). Therefore, if a tenant omit to detach the fixtures during his term or possession, he loses his right to them, and cannot afterwards treat them as chattels in an action of trover brought against the sheriff for taking them under a writ of fi. fa. Accordingly, where the lessee of certain collieries assigned goods and chattels, and engines partly affixed to the freehold, to the plaintiffs, and the lessor afterwards took possession of the collieries by reason of a forfeiture : it was held, that the plaintiffs could not maintain an action of trover against the sheriff, who had taken the engines under a Ji. fa. against the lessee, inasmuch as the latter had not detached them during the continuance of his possession (t). The landlord may also maintain trespass de bonis asportatis, against the tenant or a stranger, if fixtures belonging to him be wrongfully severed from the freehold. If the severance and the carrying away {q) Farrant v. Thompson, 5 B. & Aid. 826. (r) Hitchmanyr. Walton, 4 M. & W. 409 ; 1 Horn & H. 374. (s) Ex parte Quincey, 1 Atk. 478 ; Davis x. Jones, 2 B. & Aid. 165. (0 M‘Kintosk X. Trotter, 3 M. & W. 184. REMEDIES BY ACTION. 259 were one continued act, it has been doubted (u) whether an action in this form could be maintained ; but, as has been well argued (a;), the property in the chattel vests in the landlord at the very instant of severance, and the severance itself is, of necessity, an asportation, and “ whether the wrong-doer carry the fixture an inch, a yard, or a mile, after having severed it, can make no difference in principle.” The tenant may also maintain an action in the Action of same form, if the landlord or a stranger disannex{e?aS!^*’^ and carry away fixtures belonging to him (y). Where a landlord demises a house together with ^^essor can- certain chattels, as in the case of a furnished trespass or house, he cannot during the term sue either in trespass or trover for a conversion of the furni- ture (z). And if a party takes forcible possession of a house and fixtures, but does not sever the fix- tures, he cannot be sued in trover for having converted the fixtures (a). (u) Udal V. Udal, Aleyn. 82. lx) Gibbons on Fixtures, p. 64. (y) Twigg v. Potts, 1 C. M. & R. 89 ; 3 Tyr. 969. {z) Ward v. Macauley, 4 T. R. 489 ; Gordon v. Harper, 5 T. R. 9 (a) Longstaffv. Meagoe, 4 N. & M. 213. 260 Stealing of fixtures, a felony. Removal of fixtures. CHAPTER XII. CRIMINAL PROCEEDINGS IN RESPECT OF FIXTURES. Chattels affixed to the freehold may be either stolen or maliciously injured, and the law has provided for their protection in both these respects by affixing suitable penalties for the punishment of those who either feloniously appropriate property of this de- scription, or wantonly and wickedly injure it. Sect. I . — For Stealing Fixtures. By 7 & 8 Geo. IV. c. 29, s. 44, ‘‘ If any person shall steal, or rip, or cut, or break, with intent to steal any glass, or wood-work, belonging to any building whatsoever, or any lead, iron, copper, brass, or other metal, or any utensil, or fixture, whether made of metal or other material, respectively fixed in or to any building whatsoever, or any thing made of metal fixed in any land being private property, or for a fence to any dwelling-house, garden, or area, or in any square, street, or other place dedicated to public use or ornament, every such offender shall be guilty of felony, and being convicted thereof, shall be liable to be punished in the same manner as in the case of simple larceny ; and in case of any such thing being fixed in any square, street, or other like place, it shall not be necessary to allege the same to be the property of any person.’' At common law, larceny could not be committed of things that savoured of or adhered to the freehold, as fixtures ; for they were considered part of the land, which could not be the subject of theft (a). {a) 1 Hale P. C. 510; 2 East, P. C. 58/. PROCEEDINGS FOR STEALING FIXTURES. 261 Yet if severed from the freehold at one time and removed at another, the removal was a felony, for they were personal goods after the severance. The rule on this subject is thus stated by the criminal law commissioners: “Although a thing be part ofRuieonthis the realty, or be any annexation to, or unsevered®'^^-’®‘^‘* produce of the realty, yet if any person sever it from the realty with intent to steal it, after an interval, which so separates the acts of severance and removal that they cannot be considered as one con- tinued act, the thing taken is a chattel, the subject of theft, notwithstanding such previous connexion with the realty. If any parcel of the realty or any annexation to, or unsevered produce of the realty be severed, otherwise than by one who afterwards removes the same, it is the subject of theft, notwith- standing it be stolen instantly after that sever- ance” (b). To remedy the inconvenience which arose from Removal of this state of the law, it has been made larceny in fixtures in . 1 1 • 1 1 some case certain cases to steal things annexed to a part of the larceny. freehold, by the enactment above cited. Under that section of the Act, all persons convicted of severing and removing, though without any interval between the severance and removal of any articles affixed to the freehold, are to be deemed guilty of larceny, and to be punished in the same manner as those found guilty of that offence at common law. Where a person obtained possession of a house, fraudulently and with intent to steal fixtures, under a written agree- ment for twenty-one years’ lease, it was held that he was guilty of felony in stripping the lead from the house (c). Sect. II . — For breaking or destroying Fixtures. There are certain classes of fixtures which the law Malicious has jealously protected against malicious injury, by gxtirres" felony. (b) Report, p. 11. (c) Rex V. Munday, 2 Leach, 859 ; 2 East’s P. C. 594. 262 FIXTURES. Transporta- tion or im- prisonment. Parties da- maging ma- chines em- ployed in manufacture liable to transporta- tion. Also for da- maging any steam or other engine employed in mines. many statutes which are now repealed ; and the fol- lowing provisions, substituted by the 7 & 8 Geo. IV. c. 30, s. 3, which enacts that, If any person shall unlawfully and maliciously cut, break, or destroy, or damage with intent to destroy or to render useless, any loom, frame, machine, engine, rack, tackle or implement, whether fixed or movable,” (used for the purposes of silk, woollen, linen, or cotton manufac- ture) “or shall by force enter into any house, shop, building, or place, with intent to commit any of the offences aforesaid, every such offender shall be guilty of felony, and, being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding four years ; and, if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall so think fit) in addition to such im- prisonment.” By section 4, of the same Act, similar offences committed in respect of ‘'any machine or engine, whether fixed or movable, prepared for or employed 'in any manufacture whatever,” (except those pro- vided for in the section cited above), are punishable with transportation for seven years, or imprisonment for any term not exceeding two years, and whipping, at the discretion of the court as above. A similar punishment is awarded by the 7th section of the Act, for maliciously damaging or destroying any steam-engine, or other engine for working a mine,” &c. Under these and similar sections of the Act, it has been held that the offence is within the statute, although at the time some portion of the machine or engine was deficient, provided it was capable of being worked without it (c?), or the other parts might be readily added (e). So, also, the parties may (d) Bartlett's Case, 3 Deac. Dig. C. L. 1517, and Chubb's Case, 151. (e) Fidler's Case, 4 C. & P. 449. DEODANDS OF FIXTURES. 263 be convicted, although at the time of the offence committed the machine had been taken to pieces, and was in different places ; but only requiring the carpenter to put those pieces together again {f). Where, however, the owner had not only taken the machine to pieces, but had broken the wheel without which it could not be worked, this was held to take the case out of the statute {g). These cases were decided on that section which includes threshing-machines, and were cases where the offence was committed in respect of such ma- chines ; but the principle will apply to all other machines and engines. It is obvious that the machinery protected by the different clauses "of this Act, may, or may not be so annexed to the freehold, as to fall within the legal definition of a fixture. As far as, in any case, it is so annexed, so far the criminal law which applies to it falls within the scope of this treatise. Sect. III. — Of Deodands. Any personal chattel which has occasioned the death of a person is by the English law forfeited to the crown. But whilst any thing remains affixed to the freehold, it is not a personal chattel; if, therefore, any such article should occasion the death of a party, it will not be forfeited. Thus, a man was drawn up and strangled by the rope while ringing a church bell; but the bell, being parcel of the freehold, was not forfeited (h). In a similar manner, the sail of a windmill, the wheel of a forge or mill, or a mill-stone, occasioning death, cannot be accounted as a deodand {i). (/) MackareVs Case, 4 C. & P. 448. {g) Wesfs Case, 2 Deac. Dig. C. L. 1518. {h) Axminster Parish CdiSe, 1 Sid. 207 ; 1 Leon. 136 ; S. C. 1 Keb. 723, 745. {i) 6 Mod. 187 ; Sir T. Ray. 97 ; 3 Inst. 57 ; Keb. 745. 264 FIXTURES. If, however, the fixture be severed from the freehold before it occasion the death, it will be for- feited. Thus, if a bell fall from a steeple, or a mill- stone from a mill, and kill any one in its descent, it will be forfeited as a deodand, for it became a chattel from the moment of its severance (^). ' (k) 1 Keb. 723. 'I I 265 SCHEDULE, No. I. Fixtures not Removable by the Tenant, although annexed to the Freehold, or renewed by him. Agricultural Buildings. Ale-house Bar (a). Barns, substantially affixed (5). Beast-houses. Benches affixed, as in a Tap-room. Binns, and binn divisions of brickwork. Box planted in a garden. Bricks, laid in mortar or cement. Carpenter's Shop. Cart-houses. Cellar Binns, divisions, and shelves, built of brickwork. Chimney-pieces, original (c). Conservatories. Cornices, substantially affixed, or worked in plaster, cement, or stone, and as accessaries to other work. Cow-sheds. Cucumber Frames, substantially affixed. Cupboards, let into the floor or walls, or nailed to standfasts which are so let in. Dairy-shelves and Pillars of brickwork. Doors. Dressers. Fastenings to gates, &c. Fences, living. (а) The pewtering on the bar-counter and other bar and counter-fixtures and fittings are removable. (б) The term “ substantially affixed " is used throughout these schediiles, to imply fixtures for which foundations have been opened, or for the reception of which the freehold, whether of soil, or bricks, or wood, or stone, has been broken or cut into ; or, where the fixture is affixed by mortar, cement, cramps, standards, standfasts, or some other permanent setting. (c) That is to say, “ the original chimney-piece." An original chimney-piece of stone may be replaced by one of marble ; but the tenant must restore the original one in good condition ; or in default of so restoring it, or if there have been no “ original ” chimney-piece, he must leave that which he has put up. 266 FIXTURES. Schedule, Fences, dead, if substantially affixed, as post and rail, &c. No. 1. Flowers planted, not in pots. Foldyard Walls and Gates. Fruit-trees, standard, planted for other than nursery pur- poses ; or purposes of sale. Fruit-trees trained against a wall. Fuel House. Garden Frames, substantially affixed. Gibs, or Jibs. Gibdoors. Glass-windows. Hay-racks. Hearths, both front and back. Hedges. Hen-house. Hinges of doors, not removable. Jibs, or Gibs. Keys, provided with the premises demised. Latches, ditto. Locks, and lock-furniture ditto. Machinery, forming a substantial part and parcel of the freehold, as in a corn-mill. Mangers. Millstones. Melon-frames, substantially affixed. Partitions of every kind. Pavements (a). Pigeon-houses. Piggeries. Pineries, substantially affixed. Pump-houses, or Housings. Racks. Rings. Shutters. Slabs, necessary to the freehold ; such as the slab in front of the grate, &c. Strawberry-beds. Tower Windmills. Verandahs, substantially affixed. Ventilators. Waggon-houses. Wainscot, substantially affixed. Wells. Well-coverings, or Housings. Windows. (a) Some pavements arc removable in a few extraordinary cases, such as where a party lays down a false tesselated pave- ment or floor, over the common, or substantial pavement, &c. But no pavement can be removed which in it its removal would damage or disturb the freehold. 1 267 Schedule, No. 2. SCHEDULE, No. II. Fixtures Removable by the Tenant, if annexed by him. Accessary Buildings (a). Agricultural Machines, as threshing machines, &c. Apparatus for heating houses, &c. Apparatus for making soda, and mineral-waters, &c., for drawing beer ; or for any other trade purposes. Arras Hangings. Aviaries. Backs in breweries, distilleries, &c. Backs (Iron) of chimneys. Baize-doors. Bar-fittings in public-houses. Barns built on frames, rollers, blocks, pattens, piers, or wheels ; or otherwise than substantially affixed {b). Bars — as iron guard-bars, to doors, windows, &c. Baths, and their accessaries, as supply and waste-pipes, &c. Beds — although fastened to the wall, floor, or ceiling. Beer Engines. Bells, with their wires, cranks, carriages, pulleys, levers, &c. Bell-pulls. Bell-wires. Binns, Binn Divisions, and Binn-shelves, made of wood, slate, or stone ; or otherwise than of bricks and mortar. Blinds — both exterior and interior ; and spring and other blind rollers, laths, and pulleys. Book-cases. Book-shelves. Bottle Racks. Brackets. Brewery Plant. Brewing Backs. Brewing Vessels — vats, coppers, pipes, tubs, &c. Brick-kilns, and sheds used in the manufacture of bricks on the premises demised. Buildings merely accessary to any removable fixture ; or themselves built on frames, rollers, blocks, pattens, piers, or wheels; or otherwise than substantially af- fixed (i). (a) That is to say, such buildings as are purely accessary to the use of a removable fixture. {b) For a definition of the term “ substantially affixed,” see ante, Schedule I., note (h), page 265. 268 FIXTURES. Schedule, Cabinets. No. 2. Casings. Cellar Fittings, {See Binns). Cheese Presses. Chimney Backs (iron). Chimney-pieces (ornamental). Chimney-glasses. Cider-mills. Cider-presses. Cisterns, with their pipes, &c. Colliery Engines. Colliery Implements. Colliery Machines. Colliery Plant. Clock-cases. Closets. Coffee-mills. Cooling Coppers. Coppers. Cornices (ornamental). — {See Schedule, No. I.) Covings. Counters. Cranes. Cranks to bells. Cupboards, affixed by crews, or holdfasts not let into the walls or floor. Dairy Fittings, other than of bricks or mortar. Desks. Distillery Backs. Distillery Plant. Distillery Pipes. Doors, supplementary ; as baize doors, nursery gates, &c. Drawers. Dutch Barns. Engines, employed in any trade to which the premises demised have been appropriated. Engine-houses built to contain such engines. Eyes, as of hooks-and-eyes, stair-eyes, &c. Fastenings. Finger-plates. Fire-engines, in collieries, and their sheds or houses. Fire-guards. Fittings of public-house counters. Fittings of warehouses, safes, strong rooms, &c. Fittings of shops. Fitted Furniture. Flowers, planted for sale or nursery purposes. Flowers, in pots. Flower-baskets, of wood or iron. FIXTURES. 269 Flower-boxes, of wood or iron. Force-pump, and pipes. Furnaces, used in trade. Gas Fittings. Gasometers. Gas Apparatus. Gas Pipes (interior). Glass Shop fronts. Glasses in nursery-grounds. Glass Frames, ditto. Gold Mouldings (ornamental). Granaries, on frames, rollers, blocks, pattens, piers, or wheels ; or otherwise than substantially afl&xed. Grates. Gratings, not necessary to the freehold — as hot-air grat- ings, &c. Guard-bars, not necessary to the freehold. Guards — of wire, for grates, &c. Hangings, as tapestry, arras, &c. Hat Pegs. Hat Rails, with their pins or pegs. Heating Apparatus. Hinges of baize doors, gates, &c., themselves removable. Hooks. Hydraulic Apparatus. Hydraulic Presses. Implements employed for trading purposes. Iron Backs in breweries, distilleries, &c. Iron Backs to chimneys. Iron Boilers. Iron Chests. Iron Guards, Guard Bars, or Rails. Iron Malt-mills. Iron Ovens. Iron Rollers in mills, &c. Iron Safes, frames, shelves, and strong-room fittings. Jacks. Lamps, with their hooks and brackets. Linen Posts. Lead Pipes. Looking-glasses. Louvre or Luffer-glasses, affixed for the purpose of ven- tilation. Machinery affixed by frames, bolts, or screws, or in caps or steps of timber ; or otherwise than as being actual part and parcel of the freehold. Malting Plant, stoves, kilns, &c. Malt-mills. Marble Chimney-pieces (ornamental). Marble Slabs (ornamental). Schedule, No. 2. 270 FIXTURES. Schedule f Mash-tubs. No. 2. Meat-safes. Mills, on posts, &c., or otherwise than substantially affixed. Mills, laid on (not let into) a brick foundation — such found- ation being itself irremovable. Mouldings, (ornamental,) bradded round the room as a finish to the papering {d). Office-desk Enclosures. Ornamental Fixtures. Ovens. Paling. Pegs and Peg-rails. Picture Rods (c). Pier-glasses. Pipes of all kinds, excepting rainwater pipes. Plant of every kind of trade, as breweries, distilleries, malting, &c. Plants, in pots or boxes. Plate Glass. Posts — as linen-posts, &c. Powder-mill apparatus and machinery. Presses. Pumps, slightly attached. Rails — as hat-rails, &c. Ranges. Reservoirs. Rods for Pictures, curtains, &c. (c). Saltpans. Saltworks, plant of. Sheds — accessary to or used for particular purposes of trade, and not substantially affixed. {See Brick Kilns.) Shelves, and their brackets. Shop Counters, and enclosures. Shop Fittings. Shop Fronts. Shrubs, planted for nursery purposes, or for the purposes of sale. Shutters, door or window, not affixed. Sideboards. Sinks, with their pipes, &c. Slabs, whether of marble, or wood ; fixed or folding. Smock Windmill, on posts, &c., and not substantially affixed. {d) These, however, cannot be removed, unless the papering be finished fair underneath, so that the moulding can be re- moved without damage to the room. (e) In some cases picture rods are so arranged as to form an integral part of the cornice, in which case they cannot be removed. FIXTURES. 271 Smoke-jack. Schedule, Soap-works, (plant of.) No. 2. Soil-pipes. Spring rollers for blinds. Stair-eyes and rods. Steam-engines, affixed for purposes of trade. Stills, and their apparatus. Stoves. SuNBLiNDS, and their casings. Tanks — of iron, slate, &c., used instead of cisterns. Tapestry. Threshing-machines. Trees, planted for nursery purposes, or for purposes of sale. Tubs. Turret-clocks. Varnish House, and apparatus. Vats. Verandahs, not substantially affixed. Vessels — standing on frames or brickwork. Wainscot — ornamental and supplementary; and affixed by screws only. Warming Apparatus. Water-butts. Water-closet Apparatus. Water-trunks. Water-tubs. Windmills, on posts, frames, rollers, blocks, pattens, or piers ; or otherwise than substantially affixed. Window Blinds and Shutters. Window Fastenings. Wire Window and Fire-guards. Wires to bells. SCHEDULE, No. III. Fixtures Removable by the Tenant, if annexed by him j but usually scheduled in the Lease (a). Bars. Batps, with their pipes, &c. Bolts. Buildings of every kind erected during the term. (a) And these fixtures ought always to be scheduled in the lease, since their removal materially affects the freehold, whilst it gives but little advantage to the lessee. 272 FIXTURES. Schedule, Chimney-pieces. No. 3. Chimney-dressings. Cisterns, with their pipes, &c. Closets. Covings. Cupboards. Doors. Door-shutters. Drawers. Dressers. Fastenings. Footpieces or Footpaces. Frames (door or window.) Gates. Gilt, and other Mouldings. Gratings. Guard Bars. Hearths. Hinges. Hooks. Improvements of every kind. Iron Bolts and Bars. Iron Guards. Iron Pipes. Iron Rails. Keys. Latches. Leaden Pipes. Locks. Marble and other Chimney-pieces. Marble and other Slabs. Mouldings. Paling. Partitions. Piles. Pipes, of every kind. Posts. Pumps. Sashes. Shelves. Shutters. Sinks, with their pipes, &c. Soil-pipes. Stair-eyes. Sun-blinds, and their casings. Tanks, of iron, slate, or stone, used as cisterns, &c. Wainscot. Water-closet Apparatus. Water-pipes. Water-trunks. FIXTURES. '273 Windows. Window-fastenings. Window-shutters. SCHEDULE, No. IV. Doubtful Fixtures, of which the Character must be deter- mined by the particular circumstances of the Tenure. Brick-sets and kilns, sheds, &c. Buildings, erected for special purposes. Frames in Gardens. Furnaces in smelting-houses, &c. Garden-frames. Glasses in Gardens. Glass-frames in Gardens. Green-houses. Hot-houses. Kilns. Lime-kilns. Malting-floors, stoves, kilns, &c. Pavements, under Verandahs, or in Green-houses, &c. Sheds. Store-houses. Tables, fixed, or dormant. Temporary Buildings. Verandahs. Wind or Water-mills. Water-wheels, and runs. Workshops. END OF fixtures. F * Schedule, No. 4. DILAPIDATIONS. CONTENTS. Chapter I. — Dilapidations of Church Property. Sect. 1. As to who are liable for Repairs of Church Property .... 2. Nature and Extent of the Liability 3. Remedies for Dilapidations incurred under such Liability Chapter II. — Dilapidations of other Property. Sect. 1 . Liability to Repair by mere force of Law 2. Liability to Repair under Covenant 3. Breaches of the Covenant to Repair 4. Of the Landlord’s Remedies for Dilapi- dations .... 5. Of the Tenant’s Remedies for Dilapida- tions . . . Chapter III. — Assessment and Valuation of Dilapida- tions (with Schedules and Speci- fications). Part I. — Of Church Property. Sect. I. In case of an Archbishop, Bishop, Dean, Prebend, Rector or Vicar 2. In case of a Curate Part II. — Of other Property. Sect. 1. In case of a Tenant-at-will 2. In case of a Tenant from Year to Year . 3. In case of a Tenant for a Term of Years 4. In case of a Tenant under Special Cove- nant to repair 5. In case of a Tenant for Life 6. Dilapidations in Agricultural Tenancy . 7. Dilapidations of Fixtures Page 279 282 289 292 297 308 312 325 327 330 333 334 334 336 337 341 341 342 DILAPIDATIONS. CHAPTER I. DILAPIDATIONS OF CHURCH PROPERTY. Sect. I . — As to who are liable for Repairs. The incumbent of an ecclesiastical benefice is a Liability of tenant for life. As such he is bound to preserve and transmit the temporalities of the living in as good and sound a state as that in which he received them. He is even bound to do more. Inasmuch as the On grounds dwelling-house and other property attached to the cure were set apart for the purpose of more eflfect- ually promoting the great objects of the Christian ministry, by furnishing adequate temporal support and a suitable residence for the officiating minister, he is under an obligation to maintain and preserve this property unimpaired ; so that his successors in all future time may enjoy those advantages which have been secured to him ; and the church and the country retain the services of a resident incumbent in every parish. Besides these considerations of general policy, On other there are other grounds on which an obligation to sroundg. repair attaches to an ecclesiastical incumbent. His is the only beneficial ownership of the property. He is liable to no rent for his occupation ; he is con- strained by no special covenants ; nor does any other party whatsoever derive any emolument or advan- tage from it. There is no reversioner, who, by reason 280 DILAPIDATIONS. Curates. 57 Geo. III. c. 99, s. 63. of any pecuniary or other interest in the estate, can be called upon to contribute to its restoration or repair. Its ownership is a series of life-estates, and each successive occupant is bound to do his own part towards the support and maintenance of the property ; — and thus his immunities become respon- sibilities, imposing upon him duties in this respect to which parties under ordinary circumstances would not be liable. And this is a wise state of things ; if it were otherwise, either the inheritance of the church would be wasted, and the object of its consecration to public purposes be defeated, or an unfair and ruinous burden might be imposed upon one incumbent by reason of the laxity and negligence of his predecessors. Against both of these consequences the law has rigidly guarded, by enforcing a stringent obligation to repair upon every ecclesiastical incumbent, and giving civil remedies against the party himself and his executors if that obligation should ever be neglected. Hence, every grade of church officers holding pro- perty or occupying buildings by virtue of their spi- ritual offices, is included under this obligation ; — archbishops, bishops, deans, prebendaries, canons, rectors, and vicars, are equally bound to preserve the official residence from dilapidation and decay. A curate, however, from the very uncertain tenure on which he holds his situation, is not usually ex- pected to do any repairs, of the benefit of which he might be immediately deprived by his appoihter, upon whom, therefore, the law casts the burden of sustaining the buildings attached to the benefice (a). But, by the provisions of an Act of Parliament (6), where the whole profit of a benefice shall have been allotted to the curate, the rector, vicar, or other spiritual person, is allowed to deduct or retain therefrom in any or each year, so much money, not exceeding in any case one-fourth part of the profits. (a) Curate of Orpington's Case, 3 Keb. 614. {h) 57 Geo. III. c. 99, s. 63. AS TO WHO ARE LIABLE FOR REPAIRS. 281 as shall have been actually expended during the Expenses of year in the repair of the chancel, parsonage, &c., may^^i^^som^ or other buildino:s in respect of which the rector, &c., or his executors, administrators, or assigns, would the curate’s be liable for dilapidations to their successors. in like manner, where the profits of the benefice do not exceed one hundred and fifty pounds per annum, the rector, &c., may deduct and retain from the salary allotted to the curate in each or any year, so much money as shall have been actually expended in such repairs as aforesaid, over and above the amount of the surplus remaining of such profits after payment of the salary allotted to thg curate; provided that the sum deducted, after laying out such surplus, shall not exceed, in any year, one- fourth part of the salary of such curate. Rectors and vicars are alike liable to the costs of Rectors and repairing and sustaining the buildings, &c., parcel of the rectory or vicarage. - Prebends, also, are bound in a similar manner Prebends, with [respect to the houses which they occupy in .virtue of their office. And this, even though the residence is not specifically annexed to the prebendal stall, but only belongs generally to the cathedral ; it remaining with the bishop to assign to each pre- bendary the house which he may think fit. Thus where, as in the cathedral church of Wells, there were eight prebends and eight houses, and the bishop had assigned a house to a particular prebend, who suffered it to fall into dilapidation, and, after his death, his successor sued his executors for the costs of those dilapidations, the court held them liable ; for the house, when assigned by the bishop to a prebendary, became parcel of the prebend (c), and as such the prebendary was bound to repair, and was therefore liable to a suit for dilapidations, (c) Dr, Sand's Case, Skin. 121. F 3 282 DILAPIDATIONS. Nature and extent of repairs to be done. Wise V. Met- calfe. Sect. II . — Nature and Extent of this Liability. The temporalities of a benefice which the incumbent is bound to sustain and preserve, are, the chancel, the residence and adjacent buildings, and the fences of the glebe- lands and property : but the incumbent is not bound to repair tenements not being part and parcel of the benefice. As to the nature and extent of those repairs which are obligatory on an incumbent, the case of Wise V. Metcalfe (c?), which was very elabo- rately argued in the Court of Queen^s Bench, will furnish the best guide. It was an action against the executor of a deceased rector by his successor ; and the question was, for what dilapidations he was liable. The rectory-house was an ancient structure, built with timber, and plastered on the outside, and had upon it the date of 1624 ; the barns were also old, but not so ancient as the house. The dilapi- dations were estimated at £399 185. 6d. The prin- ciple upon which the estimate was made was, that the former incumbent ought to have left the rectory- house, buildings, and chancel, in good and substan- tial repair; the painting, papering, and whitewashing, being in proper and decent condition for the imme- diate occupation and use of his successor; that such repairs were to be ascertained with reference to the state and character of the buildings which were to be restored, where necessary, according to their original form, without addition or modern improve- ment. This was proved to be the usual principle on which dilapidations of property of this kind were esti- mated. If the rectory-house, &c., were to be repaired in the same manner only as buildings ought to be left by an outgoing lay tenant, who is bound by cove- nant to leave them in good and sufficient repair, the expense of such reparation would amount to £310 ; id) 10 B. & C. 299 EXTENT OF AN INCUMBENt’s LIABILITY. 283 the painting, papering, and whitewashing not being included. If the former incumbent were only bound to leave the buildings wind and water tight, and in that con- dition which an outgoing lay tenant not bound by covenant to do repairs, ought to leave them, the expenses amounted to £75 11s. After an elaborate argument as to which of the above principles ought to be adopted, the judgment of the court was delivered by Mr. Justice Bayley; who said, — “We are not prepared to say that any of the rules suggested are precisely correct, though the second approaches most nearly to that which we consider as the proper rule.” After citing the ancient rule of Judgment English law from very early precedents (e), he pro-®^^’^*^^ ceeded : “ From this statement of the common law, two propositions may be deduced, — first, that the incumbent is bound, not only to repair the buildings belonging to his benefice, but also to restore and rebuild them, if necessary ; secondly, that he is bound only to repair, and sustain, and to rebuild when necessary. Both these rules are very reason- able ; the first, because the revenues of the benefice are given as a provision, not for a clergyman only, but also for a suitable residence for that clergyman, and for the maintenance of the chancel ; and if by natural decay, — which, notwithstanding continual repair, must at last happen, — the buildings perish, these revenues form the only fund out of which the means of replacing them can arise. The second rule is equally consistent with reason, in requiring that which is useful only, not that which is matter of ornament and luxury.” — “ It follows, from the first of these propositions, that the third mode of com- putation proposed in the case cannot be the right one ; because a tenant not bound by covenant to do repairs, is not bound to rebuild or replace ; the landlord is the person who, when the subject of (e) See 12 & 13 Hen. VIII. ; Rot. 126 ; 1 Lut. 116. 284 dilapidations. Percival r. Cooke. occupation perishes, is to provide a new one, if he think fit. And if the second proposition be right, a part of the charges contained in the first mode of computation must be disallowed; for paperiug, white- washing, and such part of the painting as is not required to preserve wood from decay by exposure to the external air, are rather matters of ornament and luxury, than utility and necessity.” After con- firming his views by citations from the canon law, the learned Judge thus concluded: “Upon the whole, we are of opinion the incumbent was bound to maintain the parsonage, (which we. must assume upon this case to have been suitable in point of size and in other respects, to the benefice,) and also the chancel, and keep them in good and substantial repair, restoring and rebuilding when necessary, according to the original form, without addition or modern improvement; and that he was not bound to maintain or supply any thing in the nature of ornament, to which painting, (unless necessary to preserve exposed timbers from decay,) and white- washing, and papering belong ; and the damages in this case should be estimated upon that footing. It will be found, that this rule will correspond nearly with the second mode of computation, and probably will be the same if matters of ornament and luxury are not taken into consideration.” Ultimately the amount of damages ascertained on the principle above laid down, was fixed at £369 I85. Qd,\ and judgment entered accordingly. The decision in the above case rather extended the liability of incumbents, as explained in a case then recently determined. Lord Chief Justice Best had ruled, in Percival and Cooke (/), that the executors of a deceased incumbent were not bound to put the rectory-house into a finished state of repair, but only to restore what was actually in decay, and to make such repairs as were absolutely necessary for the preservation of the premises. But (/) 2 Car. & P. 460. EXTENT OF AN INCUMBENt’s LIABILITY. 285 the surveyor had estimated the amount on the prin- ciple that the representatives of the late incumbent were bound to do every thing which an incoming tenant would do, whereas the learned Judge was of opinion that they were not bound to do more than an outgoing tenant. From the cases generally, it may be inferred that General an incumbent is bound to sustain the buildings cS'es on attached to the benefice, in a good and substantial state of repair, even though it may become necessary entirely to rebuild ; that it is not sufficient to pre- serve them from actual decay, but that he must renew and restore from time to time such portions as from age or accident are so far dilapidated, as to be liable in a short period to become useless, although they be not as yet actually so. At the same time, he is not under any obligation to modernize or improve the tenements, nor to bear the expense of any. ornamental or decorative works. If, through lapse of time and consequent decay, AstorebuUd- or by fire, tempest, or other accident, the rectory-’"®’ houses or other buildings attached to the benefice, -are reduced to such a state of dilapidation as to make it necessary to rebuild, the incumbent, whilst he is under an obligation to replace them, cannot be compelled to do more. Thus he is not bound to erect larger, more substantial, more modern, or more convenient buildings than those which existed before. He may, however, do so, with the consent of the bishop, provided that the new erections are suitable in size and other circumstances to the value of the living. So, with the same consent of Enlarging the ordinary, he may alter, enlarge, and modernize an existing building, subject to similar restrictions. It is obvious that a strict control should be exer- cised over incumbents in these matters, lest their successors should become burdened with the main- tenance and repair of houses far larger than their necessities require, and far more expensive than the emoluments of the benefice are calculated to sup- port. Or, lest on the other hand, the accommodation 286 DILAPIDATIONS. provided should be insufficient, or the character of the new buildings be unsuitable to the station and circumstances of a clergyman. To meet the difficulties of rebuilding parsonage- houses, the Ecclesiastical Court is in the habit of ordering one-fifth part of the proceeds of the living, to be set apart for the building fund, where a suit has been instituted in the life-time of the incum- bent (^r). 17 Geo. III. The statute 17 Geo. III. c. 53, also provides that, mo?fe the consent of the patron and ordinary, the repairs, &c. incumbent shall be empowered to raise money by mortgage of the glebe lands, tithes, or other pro- perty of the living for 25 years, for the purpose of rebuilding or repairing the house, where one year’s income of the benefice shall be insufficient for that purpose. The interest is to be paid yearly, and also 5 per cent, per annum of the remaining debt to be paid off in each year by the incumbent or his suc- cessors, until the whole shall have been discharged. By this enactment, incumbents are -enabled to throw part of the burden upon their successors, when they die or are removed from the living before the whole of the debt is paid. The same statute empowers the governors of Queen Anne’s bounty, to advance and lend, for similar purposes, and on the same securities as above mentioned, a sum not exceeding £100, where the annual value of the living does not exceed £50, to be repaid without interest ; and, in other cases, a sum not exceeding two years’ profits of the benefice, to be repaid with interest at 4 per cent, per annum. The obligation on an incumbent to transmit the temporalities of the benefice in thorough repair to his successor is absolute and unqualified. He is. Dilapidations therefore, liable for dilapidations which occurred in predSessor, of his predeccssor, or during the interval between the avoidance of the latter and his own entrance on the living, as well as for those which {g) Sollers v. Lavjrence, Willes, 420. EXTENT OF AN INCUMEENt’s LIABILITY. 287 occurred during the period of his own incumbency. So he is liable for those dilapidations which liave happened after his avoidance of the living and before the appointment of his successor, except in those cases where the interval has been very consider- able ; when a proper apportionment is made between the new incumbent and his predecessor. These regulations, though stringent, are obviously justification iust and necessary ; — they have the effect of securing: j • *1 \ c 1 O going rules. due vigilance on the part ot every clergyman who enters on a living; insomuch as, if he omit to claim such a sum for repairs as shall suffice to put the house and buildings into a sound state, he will either during his incumbency, or on his own avoidance, have to pay the penalty of his negligence in the in- creased outlay necessary for repairs, or the larger demand for dilapidations put forward by his succes- sor. In individual cases, the rule may be productive of injury and injustice ; as where a clergyman suc- ceeds to a benefice of which the former incumbent has died insolvent, leaving the parsonage-houses and premises in a state of decay, and throwing the whole burden of repair or restoration upon his successor. But, in general, the rule is the means of securing to every ecclesiastical person a suitable residence in a habitable state of repair, and thereby increasing his facilities for the discharge of the duties of his office. It does not fall within the scope of this treatise to allude at any length to other topics connected with the subject of waste. But it may be observed, waste, that no incumbent is entitled to cut down timber for his own personal emolument (/t), either on the glebe or in the church-yard ; though for the purposes of Felling of repairing or rebuilding the chancel, parsonage-house, or other buildings, he will be permitted to do so. It is not, however, essential that this identical timber should be used in the repairs, it may be sold and the money expended for that object (i). (h) Knowle v. Harvey^ 3 Bulst. 158 ; 1 Roll. Ab. 333 ; also, Rex v. Zakar^ 3 Bulst 91. (i) Withers v. Dean and Chapter of Winchester, 3 Mer. 421. 288 DILAPIDATIONS. Bad wood, however, may be cut down (4), and the parson may take the loppings of tlie trees in the church-yard, and may mow the grass therein (1), but he must not remove the soil (m). Management There is no remedy against an incumbent for lands^^^ managing the lands of the benefice in an improper manner, Mr. Justice Fatteson laying it down in a recent case {n) : “ That no contract to use lands in a liusband-like manner, can be implied between an incumbent and his successor, since there is no privity between them.” But an incumbent must not open a mine, nor dig stone other than for repairs (o) ; nor carry away earth for the purpose of making bricks (/>). The executors of a deceased incumbent are entitled to emblements, or the growing crop which the deceased has sown (q)^ and to the rent due on all leases expiring at his death, and also to a proportion of all moduses and compositions falling due at fixed periods by virtue of any instrument executed after the 16th June, 1834 (r). Where an incumbent resigns his benefices, which is his own voluntary act, he loses all right to em- blements (s). But if he avoid his benefice in law by accepting another, he retains his right to emblements until he is actually deprived (t). If an incumbent, being also the patron of a benefice, avoid it by accepting another, and then present to the former, the presentee is entitled to all the profits from the time of presentation (zi). (Ar) Strachy v. Francis, 2 Atk. 217. (/) Line v. Harris, 1 Lee’s Judgments, 146. (m) Bennet v. Bonaker, 2 Hag. 25. («) Bird V. Relph, 4 B. & Ad. 826 ; 1 Nev. & M. 415. (o) Knight v. Moseley, 1 Amb. 176. {p) Bp. Bond. V. Webb, 1 P. Wms. 527. (?) 28 Hen. VIII. c. 11, and 1 & 2 P. & M. c. 17. (r) 4 & 5 W. IV. c. 22. {s) Bulwer v. Bulwer, 2 B. & Aid. 470. (^) Holton V. Cove, 1 B. & Ad. 538. (u) Betham v. Gregg, 10 Bing. 352. 289 Sect. IIL — Remedies for Dilapidations of Eccle- siastical Property, The inferior clergy are subject to the control of their superiors, not only in the spiritual functions of their office, and in the ordinary discharge of their clerical duties and the regulation of discipline ; but they are also amenable to the same authority for the pre- servation and right employment of the temporalities of their benefices. For this purpose, bishops, arch- visitation at deacons, and rural deans, within their respective provinces, are required to visit every parish, anddiiapida- ascertain, at certain intervals, the state of the par-^^°"®‘ sonage-house and accessary buildings, the chancel, and all other erections to be repaired and sustained by the incumbent. This visitation is a preventive measure, whereby the progress of decay is stayed and timely repairs are enforced ; thus ensuring the stability and permanence of all the tenements sup- ported out of the profits of the living. If any incum- Ecciesias- bent contumaciously refuses to make such proper t'^aicen- sur6* and sufficient reparations as from time to time may become necessary, he may be compelled to do so by ecclesiastical censures. In such cases a certain proportion, usually one-fifth (.r), of the profits of the living are sequestrated by episcopal authority for that purpose, until the object is accomplished by the thorough repair of the dilapidated mansion-house, or other building, as the case may be. Bishops and archbishops and ecclesiastical cor- porations are also under an obligation “ sub attesta- tione divini judicii” to keep their temporalities in repair. And, by statutory provisions (?/), the king is enjoined to keep in repair the property of arch- bishoprics, bishoprics, and other ecclesiastical dig- nities, during their vacancy. Permissive waste, or the gradual and inevitable decay of the fabric through lapse of time, is thus {x) Gibson’s Cod. 751 ; Sollersw Lawrence^ Willes, 420 ; North V. Barker, 3 Phil. 307. (y) Magna Charta, c. 5, & Stat. of Westminster, 1 ; 3 Edw. I. c. 21. 290 DILAPIDATIONS. Prohibition. Suit. prevented by the supervision of the above-named ecclesiastical officers. For voluntary waste, or an actual depreciation and injury of ecclesiastical pro- perty, there are, however, other remedies. The writ of prohibition, which issued out of Chancery was one of these, but it is now seldom re- sorted to; an injunction, granted by the same court, on sufficient cause shown, being a more convenient as well as a more efficient remedy. An injunction will be issued against an incumbent at the suit of the patron, and against a bishop and dean and chapter at the suit of the king ; but a party having no in- terest in the freehold of a benefice, as a lessee of the bishop, has no right to an injunction (z). Waste by a bishop is the subject of prohibition (a). Writs of prohibition and assistance have been granted, to prevent a prebendary from committing waste on his prebend (d). For dilapidations the party injured may institute a suit in the Ecclesiastical Court, or commence an action at law. Under the former, the party in default may be compelled to repair under ecclesiastical censures, or by sequestration ; or he may be punished, in aggravated cases of voluntary waste, by depriva- tion. Against a layman the court has no power of sequestration ; and this is a remedy, therefore, not available in the case of a lay impropriator (c). But he may be imprisoned as contumacious if he refuse compliance with the order of the court to repair. In the instance of a fraudulent grant of his pro- perty by an incumbent with the view of defrauding his successor of his remedy for dilapidations, the grant is made void by the statute, 13 Eliz. c. 5 ; and by 13 Eliz. c. 10, s. 2, the grantee may be sued in the spiritual court as if he were executor or admi- nistrator. (z) Withers V. Dean and Chanter of Winchester j 3 Mer. 421. (a) Bishop Winchester v. Wolgar, 3 Swans. 493. (J) Ackland v. Atwell, 3 Swans. 499. (c) Walwyn v. Awbery, 1 Mod. 258 ; 2 Mod. 254. REMEDIES FOR ECCLESIASTICAL DILAPIDATIONS. 291 An action on the case at common law may also Action on the be brought for dilapidations against the executor a deceased prebendary, rector, or vicar, by his suc- cessor (d). If, however, the benefice be avoided by the promotion or resignation of the incumbent, he is the proper person to be sued. In certain cases the plaintiff may bring distinct actions for dilapida- tions, as for those of the chancel, and those of the rectory-house (e) ; but this can rarely be either neces- sary or proper. The plaintiff cannot when his claim has been once decided by a competent jurisdiction proceed again in another court (f). Money recovered for dilapidations by a succeeding Money reco- incumbent from his predecessor, must within two'^®’’®'^’ years be expended in the repairs of the buildings in respect of which it was recovered, under pain of forfeiting double the amount. If the incumbent die within two years his executor is under similar obliga- tion to repair (g). (d) Jones v. Hill, 3 Lev. 268; Radcliff^e v. D^Oyly, 2 T. R. 630. (e) Young v. Munhy, 4 M. & S. 183. \f) Okes V. Ange, 2 Lev. 413. Ig) Gibs. Cod. Tit. 32, c. 4. 292 Ancient doc- trine of waste. Liability of tenants. CHAPTER II. DILAPIDATIONS OF OTHER PROPERTY. Sect. I . — Liability to Repair by mere force of Law, The ancient doctrine of waste, and the penalties attached to it, prove that the law has ever regarded the tenant as responsible for the use and enjoyment of the property demised to him. He is not the absolute owner of the estate, he has the usufruct only ; — hence he is answerable for the manner in which he treats the premises during the continuance of the demise. The substance of the property re- mains vested in the lessor, and on the determination of the tenancy the possession will revert to him : he has a right, therefore, to claim from the lessee, that the premises should return to him again with- out waste or dilapidation ; and if they have, become ruinous and fallen into decay, the landlord may recover from the tenant a compensation in damages equal in amount to the cost of repairing and rein- stating the property. But these rights and liabilities are subject to some qualification. The owner of an estate allowing to another the use and enjoyment of it, in considera- tion of a certain remuneration in the shape of rent, the landlord is bound to allow for such decay and dilapidation in the premises as may be the natural consequence of lapse of time, of the action of the elements, and of a fair and reasonable wear and tear ; — these are all inseparable from the usufruct, and are considered, therefore, as included in the amount of the rent. No damages are recoverable for the results fairly attributable to or deducible from such causes ; and on this question it is that litigation chiefly arises, since it is notorious that extraordinary dilapidations, and injuries of every kind resulting LIABILITIES OF TENANTS. 293 from avoidable accident, carelessness, waste, wilful damage or malice, must be repaired : these not being the natural consequences of occupation. The liability which the law imposes upon tenants Proportioned without covenant, varies according to the nature and Jena^cy? duration of the tenancy. Tenants at will, whose estate is so uncertain, are Tenants at not responsible for dilapidations. The law will"^^^‘ attach no liability to so frail a tenure, and hence the landlord can have no remedy against him for repairs. If he commit voluntary waste, by wilfully injuring or destroying the property, the landlord may main- tain trespass against him (a). But for permissive waste, or injury which is the result of negligence or inadvertence, he is not punishable (b) : the only charge which a tenant at will takes upon himself is to occupy, and to pay his rent (c). Tenants from year to year, on agreements, or Tenants otherwise, stand on a different footing. They liable for all dilapidations which are not the ne- cessary consequences of the occupation, or the result of inevitable accident; the law implying a contract on their part to use the tenements in a tenant-like manner, and not to commit waste (d). The mere use of a house, together with the in- Wear and fluence of the elements, and lapse of time, will work*®®*’* a gradual and inevitable decay. Thus, floors and staircases will become worn and infirm, plastering will be weakened, tiles or slates will be loosened, the pointing of external brick-work will fret away, weather-boarding will rot, the lead of ridges and gutters will wear thin : no care on the part of a tenant can prevent these things from occurring. The law, therefore, throws no responsibility upon him for them. But if the nosings of steps be broken off, or a Avoidable * accident. (a) Litt. s. 71. (b) Countess of Shrewsbury's Case, 5 Rep. 13. (c) Cro. Eliz. 784. (rf) 1 Saum. 323, b. n. 7 ; 1 Co. Litt. 57, a. 7 ; 1 J. B. Moore, 100. 294 DILAPIDATIONS. Inevitable accident. Ferguson v. door be torn from its hinges, or the pulley of a sash broken, or a pane of glass be cracked, the tenant must repair : such dilapidation not being the result of ordinary wear and tear. So, if a stranger come and injure the house, the tenant is liable ; for the law presumes that he is capable of resisting the wrong- doer. But for the results of inevitable accident the tenant is not responsible. Thus, if the house be con- sumed by fire, or prostrated by tempest, or carried away by a flood, he is not bound to rebuild : such a liability as this does not result from the character of the relation between landlord and tenant. Though, however, the tenant cannot be compelled to repair the more immediate consequences of flood or tempest, he is answerable for those more re- mote ; and, therefore, by implication for those more immediate, in many cases. Thus, if the roof be stripped by the wind, he is bound to replace the covering ; otherwise he will be liable for the decay of the timbers of the roof through exposure to the weather (e). So, under certain circumstances, the mischief caused immediately by the elements the tenant must repair. Thus, where the estate is injured by the tide or stream through the decay of a sea-wall or of the banks of rivers, it is waste, for the tenant should have repaired the wall or bank, and prevented the accident ; but if by any sudden storm or unexpected flood injury is occasioned, it is not waste (f), and the tenant is not liable. The extent of the liability of tenants from year to year for repairs, may best be shown by citing one or two of the leading cases on the subject. In Ferguson v. (g) the landlord, at the expiration of a yearly tenancy, brought an action against the tenant for dilapidations, and made the amount of an (e) Co. Litt. 53, a. ; Bro. Ab. Conditions, pi. 40 ; 2 Roll. Abr. 818, 1, 17. (/) Co. Litt. 536. (p) 2 Esp. 590, Kenyon. LIABILITIES OF TENANTS. 295 estimate which had been prepared for putting the house into complete and tenantable repair, the mea- sure of his damages, Lord Kenyon said, “ That it was not to be permitted to go for the damages so claimed. A tenant from year to year was bound to commit no waste, and to make fair and tenantable Lord Ken- repairs, — such as putting in windows or doors that have been broken by him, so as to prevent waste and decay of the premises ; but that in the present case, the plaintiff claimed a sum for putting a new roof on an old worn-out house ; this I think the tenant is not bound to do, and that the plaintiff has no right to recover.*' So, in Horsefall v. Mather {h), where the plaintiff Horsefaii v. declared on a contract by defendant to deliver up father, premises in the same state as he received them, and merely proved a tenancy from year to year, Chief- c. J. Gibbs JusticeGibbs nonsuited the plain tiff, saying the obli- gation is stated too largely. Can it be contended that a yearly tenant would be bound to rebuild if the pre- mises were destroyed by accidental fire, or if they became ruinous by any other accident ? He is only to use them in a husband-like manner, or with ordinary care.” In Anworth v. Johnson (i), (an action against aAnwortht?. yearly tenant,) it appeared that the stairs of the house Johnson were worn out, new sashes were wanted, the doors were rotten and fallen to pieces from decay, latches, keys, and locks were broken and damaged, and a panel of a door was broken. Lord Tenterden in Lord Ten- summing up said: ‘^It appears this was a very dilapidated house when the defendants took it, and they have had a very considerable quantity of work done upon it. The first question is, what are the things an occupier of a house from year to year is bound to do ? He is only bound to keep the pre- mises wind and water-tight. A tenant, who cove- nants to repair, is to sustain and uphold the premises ; (A) Holt. 7. (i) 5 C. & P. 239 ; see also Leac/i v. Thomas^ 7 C. & P. 328, Pattison. 296 DILAPIDATIONS. but that is not the case with a tenant from year to year. A great part of what is claimed by plaintiff consists of new materials, where the old were actually worn out : for that the defendants are clearly not liable. But if you think that defendants have done all that tenants from year to year ought to do, considering the state of the premises when they took them, the defendants are entitled to your verdict.” Liability of may gather from the foregoing cases, that yearly tenants are liable only for fair and tenantable general. repairs ; that they are bound to use the demised premises with ordinary care, and to guard against premature decay and dilapidation, by keeping the buildings wind and water-tight ; by renewing as oc- casion may require, such external painting as may be necessary to preserve the wood and iron-work, and by maintaining the windows and doors sufficiently sound to exclude the weather. But for the decay consequent on ordinary wear and tear and lapse of time, — against which no care of the tenant would suffice ; for the gradual imperceptible deterioration of the solid fabric of the house, and the inevitable weakening and ultimate wearing out of it from these causes, — the yearly tenant is not liable (k). Still he should not omit to adopt reasonable and useful precautions to obviate, at a slight expense, the occurrence of great and manifest injury to the premises. If a window or tile were even accidentally broken, it seems that he would be liable if he did not repair it, if the plain consequence of his neglect would be a serious damage to the house from wet, &c. (Z). Liability of If ^>6 useful to add, that where a tenant holds ^nants hold- over after the expiration of his lease, he will be ing over after , i i i ^ i i term expired, bound during his tenancy by the covenant to repair. And the same where the lease is void. In Beal v, (^) See Torriano v. Young, 6 C. & P. ; 8 Taunton ; and Martin v. Gillham, 2 Nev. & P, 568. (0 Chitty, Jun., On Contracts, 3rd Edition, p. 335. LIABILITY TO REPAIR UNDER COVENANT. 297 Sanders A, devised certain estates to B. for where lease life ; the devise contained a limited power of leasing. The devisee leased part of the demised premises for a term beyond the limit appointed. The lease con- tained the usual covenants to repair, and was after- wards assigned to the defendants, who, for several years, remained in possession, and paid the rent to the expiration of the term ; — Held, that although the lease was void, the defendants held as tenants from year to year under the covenants of the lease, and were liable to repair up to the end of the term. Sect. II . — Of the Liability to Repair under Covenant. With regard to covenants to repair, we may con- pivision of sider, first, who are bound by them; secondly, the ’ time when the obligation attaches, and the period during which it continues; next, the property to which it applies; and lastly, the extent of the obli- gation. On the first point a very few Avords will suffice, who are Covenants to repair run with the land : therefore they bind the assignee of the lessee, as well as executors and administrators, even although he be not mentioned in the deed (w). Such covenants as relate to the manner of using the premises, bind the lessee and every one to whom he may assign his interest (o). And, as the covenant extends to every part of the demised premises, the assignee of any part is liable under this covenant for not repairing that part ( jd). Where the covenant is to do a specific thing, and Where assig- not something which is to be performed during Habie. the whole term, as to build a wall on the demised (m) 3 Bing. N. C. 850 ; 5 Scott, 58 ; 3 Hodges, 147 ; 1 Jurist, 1083. (n) Bacheloure v. Gage, Cro. Car. 188. . (o) Lant V. Norris, 1 Bur. 287. (j)) Congham v. King, Cro. Car. 221. O * 298 DILAPIDATIONS. Executors and adminis- trators. premises, the assignee is not bound unless expressly named (q). So, if a lessee covenant for himself and his assig- nees to build a house within a certain time, and assign after the time has expired, the assignee is not bound ; but if he assigns before the cove- nant is broken, the assignee is bound to perform it(r). The assignee of the reversion can only sue for breaches of covenant committed after he had pur- chased the reversion ; and, therefore, where A. de- mised to B. for a term of years, two messuages, and the lease contained a covenant by B. that he would, during the term, keep the premises in repair, and leave them, at the end of the term, in good repair, and in the same state as they were in at the beginning ; but at the end of the term the messuages were out of re- pair, and had been converted into a single house ; and B. held on without a fresh lease ; after which C. pur- chased the reversion of A., and under him B. con- tinued to hold ; the court decided that B. was not liable in assumpsit, on an implied contract, to put the messuages in such repair and in the same state as they were in at the commencement of the term, but that, supposing B. so liable, C. had no right of action for breaches of the contract committed before he purchased the reversion (s). As the executors, administrators, or assigns of the parties bound by these covenants are liable for a breach of them, so the executors, administrators, or assigns of him who had originally the right to take advantage of them, as the lessor or^covenantee, may sue for any breach which may have been committed. Thus the assignee or devisee of the reversion, — or (if the lessor’s were a chattel interest in the estate) his executor or administrator, — or his heir, if the rever- (§') Spencer^s Case, 5 Rep. 16. (r) Glascot v. Green, 1 Salk. 199. {s) Johnson v. St. Peter's Hereford {Churchwardens), 4 Ad. & E. 520 ; 4 Nev. & M. 186 ; 1 Har. & W. 720. LIABILITY TO REPAIR UNDER COVENANT. 299 sion descends upon him, may sue the parties liable under the covenants(^). In like manner any covenant affecting the mode What cove- of enjoying the demised premises, runs with the^^JJJ^j^ land, and the benefit of it passes to the assignee ofiand. the reversion. Thus, where a party covenanted to erect a smelting-mill on a piece of land not demised, nor shown to belong to the lessors, it was held that the assignee of the reversion might sue for the breach of that covenant (u). Liability under a covenant to repair, usually com- when the lu mences with the right to possess and enjoy the pre- mises demised. The obligation to sustain and uphold the property, dates from the sealing and delivery of the lease. Under some circumstances, however, the covenant does not attach or take effect until after the doing of some specific act, or the happening of some particular event. Thus, in the case of Lant v. Norris the obligation to repair did not arise until after the premises were rebuilt. So, in Horsefall v. Testar (z/), where the defendant, had covenanted to repair the premises at all times, (as often as need or occasion should require) “ and at farthest within three months after notice,” the court were of opinion that the tenant was not bound to repair until notice had been given, the covenant not being general and abso- lute, but qualified and conditional on the giving of the specified notice (z). Where, however, by two separate covenants the lessee binds himself by one to repair generally, and by another to repair within a certain time after notice, the general obligation attaches, and the (t) Sale V. Kitchingham, 10 Mod. 158 ; and Lougher v. Williams j 2 Lev. 92. See also Buckley v. Pirk, 1 Salk. 317. (u) Sampsoi,. v. Easterhyy 9 B. & C. 505, S. C. nom ; Easterly v. Sampson, 6 Bing. 644 ; 4 M. & P. 601 ; and 1 C. & J. 105. (x) Burr. 287. (y) 7 Taun. 385 ; 1 Moo. 89. (z) See also Boe dem. Rankin v. Brindley, 1 N. & M. 1 ; 4 B. & Ad. 84. 300 DILAPIDATIONS. Tenant holding over. When not liable. covenantor is liable, although no notice has been given {a). Upon a covenant, therefore, to repair and keep in repair during the continuance of the term, an action may be maintained for breaches committed before the term has expired (b). A general covenant to repair not only binds the covenantor during the continuance of the lease, but during such further period as he may continue to hold over after its expiration. The law presumes that he continues tenant from year to year, under the same covenants and conditions as were contained in the expired lease. Hence, he is liable for dilapidations so long as his tenancy continues, to the same extent j as during his previous term. Under such circum- , stances, therefore, it has been decided that a tenant j is bound to rebuild premises which have been con- sumed by fire(c). j But where there was a covenant to yield up the premises in good repair at the end of the term, and a covenant not to convert or alter the premises, but to deliver them up in the same state as when the lease was granted, and it appeared that the buildings were altered during the term and were dilapidated at the end of the term, and the tenants held over, but no dilapidations happened during the continuance of the yearly tenancy : it was held that the tenants were not liable on the implied agreement for those alterations and dilapidations, because they were ! breaches of the covenants in the lease, which the continued tenancy did not impose the duty of re- pairing (d). No covenants can continue binding ! as implied covenants, except such as prescribe the manner in which the premises shall continue to be used. J (a) Wood V. Day, 7 Taun. 646 ; 1 B. Moo. 389 ; Roe d. Goatly V. Paine, 2 Camp. 520 ; Doe d. Morecraft v. Meux, 4 B. & C. 606. (.6) Luxmore v. Robson, 1 B. & A. 584. ' * (e) Digby v. Atkinson, 4 Camp. 275. {d) Johnson v. ChurcJmardens of St. Peter's, Hereford, 4 N. & M. 186 ; 1 H. & W. 720. LIABILITY TO REPAIR UNDER COVENANT. 301 but the of vere tbe re- The covenant to repair the premises demised, To what extends (as we have already stated) to every portion of tliem, which can be accounted part of the freehold, extends. It includes all such new buildings, (whether substi- tuted in the place of others, or added to those already existing,) as the tenant will not be allowed to remove New buiid- as fixtures at the end of his term. Thus, where there was a lease of three messuages, and the tenant covenanted to pull them down and erect three others in their place, to keep the messuages so to be erected in good repair, and, at the end of the term, to leave the demised premises and the houses thereon erected in good repair, and the lessee pulled down the three messuages, and erected five in their place ; it was held that he was bound to leave the whole five in good repair (e). Where the covenant is to repair all erections and Even though buildings erected and built on the demised premises, con - the covenantor will be bound to repair such erections set up for the purposes of his trade, or for domestic use or ornament as would, in the absence of such a covenant, have been removable as fixtures {/)• This rule has been extended to a verandah put up by the tenant (^), and to a millstone fixed by the lessee himself upon the premises (A) where the co- venant was to “ repair and leave in repair improve- ments.” It) like manner racks are included in a covenant to repair stables, nor need it be shown by the declara- tion that they were fixed to the freehold (i). A lessee covenanted to repair prcedimissa from the time of the lease to the determination thereof, and to deliver up at the end of the term, not saying from time to time. This lessee afterwards built a malt- house, and the court was of opinion that the co- (e) Douse v. Earle, 3 Lev. 264 ; 2 Ventr. 126 ; Brown v. Blunden, Skin. 121. {f) Naylor V. Collinge, 1 Taun. 19. {g) Penry v. Brown, 2 Stark. 403. (^) Master v. Bradley, 9 Bing. 24 ; 2 Moo. & Sc. 25. {i) Anon. 2 Vent. 214. 302 DILAPIDATIONS. Equitable construction of covenant. Boundary walls. venant extended to it, for it was a continuing cove- nant (k). The courts, however, will construe covenants to repair in a reasonable manner, and in accordance with the manifest intention of the parties. Thus, where a lessee covenanted within fifteen years to lay out the sum of £200 upon the demised premises, in erecting and rebuilding messuages thereon, and to repair the said messuages so to be erected, and all other houses at any time hereafter to be erected, and to yield up the demised premises, with all such other houses in good repair at the end of the term ; the Court of King’s Bench were clear that the assig- nee was not bound to repair buildings erected on the premises at the time the lease was granted, because the intention was evidently to remove those and erect others in their place ; and the lessor, not having insisted on the lessee erecting new houses within the first fifteen years of the term, could not call upon the assignee to repair the old and dilapi- dated buildings which he had negligently suffered to remain (/). Where a lessee covenanted to repair four mes- suages demised ; and within fifty years to take down the said demised messuages, as occasion should require, and in the place thereof to erect upon the premises four new brick messuages ; the Court of Common Pleas intimated an opinion, that if within the fifty years the houses should be so repaired as to make them completely and substantially as good as new houses, the covenant would be satisfied without taking down the old houses ; and that the words, “as occasion should require,” would raise a question of fact for a jury, whether such occasion did arise (m). A covenant by a lessor to repair the external parts of the demised messuage, comprehends the boundary walls of it, though they adjoin other buildings ; and (Jc) Brown v. Blunden, Skin. 121. il) Lant V. Norris, 1 Burr. 287. (m) Evelyn v. Raddish, 7 Taun. 411. LIABILITY TO REPAIR UNDER COVENANT. 303 he is liable to compensate the lessee for any damage which he may have sustained from the non-repair of such a wall, although such damage has resulted from the pulling down of the adjoining building (w). An express covenant to repair, binds the cove- Extent of nantor to do so under all circumstances and at all ’ events, nor can he be excused by inevitable accident, accident. He has covenanted generally and absolutely, has introduced neither exception nor qualification into his agreement, and the law, therefore, is bound to construe strictly the engagement into which he has deliberately entered. If events the most unexpected afterwards occur, if calamities the most unusual are brought about, if circumstances are entirely altered by subsequent occurrences, the lessee is, never- theless, bound by his engagement. All these events were, or they might have been, anticipated. If they were foreseen it would be unjust to absolve the lessee from his covenant, and deprive the lessor of his remedy ; if they were not, still the parties have pre- scribed and defined the terms of their own agree- ment, and the law will interfere no farther than to explain and enforce it accordingly. Hence, under a general covenant to repair, the Case of fire, lessee is bound to rebuild if the premises be destroyed by accidental 6re (o). And this obligation extends to his assignee. Nor does it make any difference, though there be a covenant to insure for a specific sum, as well as to repair; for, if the premises be burnt, the lessee is liable to rebuild, though the cost exceed 'the amount of the insurance (/?). But where a lessor covenanted in a lease with his lessee, that he would, in case the premises demised should be burnt down, “ rebuild and replace " the same in the same state as they were in before the fire, he is only bound to restore the premises to the state (n) Green v. Bales, 1 Gale & D. 468. (o) Bullock V. Dommitt, 6 T. R. 650 ; 2 Chit. 608. See also Digby v. Atkinson, 4 Camp. 275 ; and Phillipson v. Leigh, 1 Esp. 398. (/;) Digby v. Atkinson, 4 Camp. 275, Ellenborough. 304 DILAPIDATIONS. Landlord’s liability in case of fire. General lia- bility under covenant. in which they were when he let them, and is not bound to rebuild any additional parts which may have been erected by his tenant (q). If a lessee covenant to repair, &c.y casualties by fire and tempest excepted,” it seems that the land- lord is not bound to repair in either of the excepted cases (r) ; nevertheless the tenant continues liable to the payment of rent, notwithstanding the premises are destroyed by tire (s). A landlord sometimes covenants with his lessee to repair; but if he do not, the tenant cannot com- pel him (0. It\ therefore, the premises be consumed by fire, and the landlord having insured them, has recovered the insurance money, the tenant cannot compel him, either at law (w) or in equity (x), to expend the money so received in rebuilding the premises; nor will a court of equity restrain the landlord from suing for his rent until the premises are rebuilt (y). Though, under a general covenant to repair, a lessee is bound to make good the consequences of all accidents, yet he is not bound to supply defects in the fabric of the buildings, produced by time and use, so long as those defects do not render the house untenantable. He is bound, however, to preserve and deliver up the premises in a tenantable con- dition, and is prevented by his covenant from saying either that they were not tenantable at the com- mencement of the term, or were not calculated to last so long. He will be always liable in damages to the extent of the costs of repair ( 2 ) and dilapida- tion. (g) Loader v. Kemp, 2 C. & P. 375, Best. (r) Weigall v. Waters, 6 T. R. 488. {s) Hare v. Groves, Anst. 687 ; and Belfour, Admor. v. Weston, 1 T. R. 310. (f) Bayne v. Walker, 3 Dow. 253. (tt) Pindar v. Ainsley, cited 1 T. R. 312. Ipc) Leeds v. Cheetham, 1 Simons, 146 ; Holtzappfel v. Baker, 18 Ves. 115. (y) Hare v. Groves, 3 Anstr. 687. (z) Vivian v. Campion, 2 Lord Ray. 1125; Holt, Ch. J. LIABILITY TO REPAIR UNDER COVENANT. 305 As to the nature and extent of the repairs which Extent of lessees are compelled to perform under their covenant, co?enan^t?‘^^'^ we shall first give a general view of their liability as collected from the cases, one or two of the more important of which we shall cite at length, for the purpose of show'ing the opinion which the courts have expressed as to the obligation entered into by the covenantor in a general covenant to repair ; and afterwards add a schedule and specification in detail of such works as the nature of each kind of tenancy appears to us to warrant. It has been decided that, under covenant to re- Does not pair the tenant is liable for repairs only, and not for the extra expense of laying anew floor on improved ^ents. plan, or the like (a). But where a tenant taking Exception, premises out of repair agrees to put them into habit- able repair, this implies a better state than that in which he found them ; and, regard being had to the state of the premises at the time of the agreement, and of their situation, and to the class of persons likely to inhabit them, he is to put them into a condi- tion reasonably fit for the occupation of an inhabi- tant (6). A covenant to repair does not compel or even Nor rebuild- authorise the lessee to pull down and rebuild, although it does bind him to rebuild in case the premises fall down (c). A covenant to repair, however general and abso- covenant lute in its terms, is to be construed with a reference to the age and condition of the buildings at the ence to age time of the demise. Therefore although a lessee isdltiorTof precluded from pleading, that the messuages in question were ruinous and in decay at the com- mencement of the term, or were so old and infirm as to be incapable of lasting till its expiration, yet he will be allowed to give evidence of the age and state of repair of the premises when the lease was (а) Soward v. Leggatt, 7 C. & P. 613 ; Abinger. (б) Belcher v. McIntosh, 8 C. & P. 720 ; 2 M. & Rob. 186 ; Alderson. (c) Jones dem. Cowper v. Verneg, Willes, 175. G 3 306 DILAPIDATIONS. Harris v. Jones. Gutteridge v. M unyard. granted; and the verdict of a jury will be guided by a reference to these facts, when they come to decide whether the covenant has been substantially complied with, or to assess the damages to which the defendant may be liable. This principle of construction is clearly illus- trated in the three following cases, which may be con- sidered as fair exponents of the law on this subject : — In Harris v. Jones {d)y the covenant was to leave the premises in good and substantial condition. It appeared, on the part of the landlord, that glass in the skylight was broken, to the amount of 40s. ; that iron rails, tiling, and coping, were dilapidated. On the part of the tenant, it was proved that he had laid out considerable sums in repairs during the term, and that the premises were, in the whole, in tenant- able repair, and in a better state than when demised. Lord Chief Justice Tindal said : — “ The question is, wdielher the covenant has been substantially com- plied with. The defendant was only bound to keep up the house as an old house, not to give the plain- tiff the benefit of new work.” The jury found for the defendant. — Hence it would appear that we must infer that such a covenant as the above is satisfied by maintaining the tenements in substantial repair; and that substantial repair will be judged of with reference to the previous condition of the premises ; and that a literal performance of the covenant is not to be required ; — but this is altogether contrary to the principle of other decisions, a§ well as to reason and right ; since a tenant, even not under covenant, is liable to restore broken glass. The case may be best understood and reconciled with others, by con- sidering the defects and dilapidations proved to exist as of too minute and trifling a character to sustain and justify a verdict against a tenant who had complied substantially, and at considerable ex- pense, with the spirit of his covenant. In the case of Gutteridge v. Munyard (e), tried {d) 1 Moo. & Rob. 173. (e) 1 Moo. 5c Rob. 334. LIABILITY TO REPAIR UNDER COVENANT. 307 A» before the same learned judge, similar principles were laid down. The house in question was very old at the time of the demise ; the covenant was to repair and yield up in repair. The Chief Justice remarked, ** Whenever an old building is demised, and the lessee enters into a covenant to repair, it is not meant that the old building is to be restored, in a renewed form, at the end of the term, or of greater value than it was at the commencement. Wliat the natural operation of time flowing on effects, and all that the elements bring about in diminishing the value, constitute a loss, which, so far as it results from time and nature, falls upon the landlord. But the tenant is to take care that the tenements do not suffer more than the operation of time and nature would effect. He is bound, by seasonable appli- cations of labour, to keep the house, as nearly as possible, in the same condition as when it was demised. If it appear that he has made these applications, and laid out money from time to time upon the premises, it would not, perhaps, be fair to judge him very rigorously by the reports of a sur- veyor, who is sent upon the premises for the very purpose of finding fault Again, in Stanley v. Twogood {f), where the Stanley r. covenant was to preserve, keep, and have the house in good and tenantable order and repair. Chief Justice Tindal held that “ the question was, whether the house was in a substantial state of repair, as opposed to mere fancied injuries, — such as a mere crack in a pane of glass, or the like. That although the state of repair at the time of the demise was not to be taken into consideration, yet it would make a difference whether the house were new or old at the time of the demise.^’ The same principle, that a verdict is to be given, or damages assessed with reference to the state of the premises when the defendant takes possession, is laid down in the case of Burdett v. Withers {g). (f) 3 Bing. N. C. 4 ; 2 Hodges, 132. {g) 7 Ad. & E. 136 ; 2 Nev. & P. 122. 308 DILAPIDATIONS. Party wall. Inside paint- ing. Other cove- nants. It will not, however, be permitted to the defendant to go into matters of detail ; the general condition only may be shown (h). It may just be observed, that an express covenant to repair does not render the covenantor liable to contribute to the expense of rebuilding a party-wall under either the Building Act, (14 Geo. III. c. 78.) (i), nor under the new one (7 & 8 Viet. c. 84), for the first named statute intended to throw the burden upon the owner of the improved rent (k ) ; and the second specifically places it upon the lessor. Under a covenant that the tenant “ should and would substantially repair, uphold, and maintain" a house, it has been decided that he is bound to keep up the inside painting (/). This decision, however, would not now be supported, unless under aggra- vated circumstances. It goes farther than recent cases seem to justify. Painting at specified times is generally provided for by a special clause in the lease, and this appears to strengthen the exception. A covenant to “alter and improve" or to rebuild, is not satisfied by substantial and thorough repairs, but must be strictly complied with (w). So, a covenant to make a shop front is not performed by merely enlarging windows, although that may be sufficient for the purposes of the tenant’s trade (n). A court of equity will enforce a specific per- formance of a covenant to make the elevation of a house correspond with that of others (o). Sect. III. — Of Breaches of the Covenant to Repair, Under a lease the tenant has a right to use and {h) Young v. Mantz, 6 Scott, 277 ; 1 Arn. 198 ; S. C. nom. Mantz V. Goring, 4 Bing. N. C. 451. (i) Stone v. Greenwell, cited, 3 T. R. 461 ; Moore v. Clark, 5 Taun. 90. {k) Southall V. Leadbetter, 3 T. R. 458. (/) Marke v. Noyes, 1 Car. & P. 265 ; Abbott. {rn) City o/ London v. Nash, 3 Atk. 512. (n) Doe d. Nash v. Birch, 1 M. & W. 402. (o) Franklyn v. Tuton, 5 Mad. 469. OF BREACHES OF THE COVENANT TO REPAIR. 309 enjoy the premises demised during the term, on the conditions specified in the indenture. At the deter- mination of the tenancy the landlord has a right to receive back the tenements in substantially the same condition as they were in when he demised them. Hence any material and extensive alteration of theWhatis premises, whereby either the value of them ** nished, or the evidence of their identity is liable to alterations. be aflPected, is waste, and a breach of the covenant to repair. Thus, converting two chambers into one, or a hand-mill into a horse-mill (/>) ; pulling down Pulling down a house, and rebuilding it in a different fashion, though the new house be more valuable than the old one (q ) ; and building new houses, which produce £200 per annum, on the site of a brewhouse which produced only £120, have respectively been held waste (r). The breaking of a doorway through the wall of a Breaking demised house into an adjoining house, and keep-^^^^®*^”^^^’ ing it open for a long space of time, is a breach of the general covenant to repair (s) ; and where the tenant of a house covenanted to repair the premises and all erections, buildings and improvements erected on the same during the term, the court held, that it was a breach of the covenant to remove a verandah erected during the term, the lower part of which was affixed to the ground by means of posts {t). But where the lease contemplates alterations being Exception, made in the premises ; the enlargement of windows, by converting them into shop windows, the opening of one internal door and the stopping up of another, and taking down partitions, are no breaches of a covenant to repair, and to keep in repair, a dwelling- house, together with all such buildings, improve- (/>) Grave's Case, Co. Litt. 53, a. n. 3 ; City of London v. GrcBme, Cro. Jac. 182. {q) 2 Roll. Abr. 815, pi. 17, 18. (r) Cole V. Green, 1 Lev. 311, S. C. 1 Mod. 94; Cole v. Forth. {s) Doe dem. Vickery v. Jackson, 2 Stark. 293. (0 Penry v. Brown, 2 Stark. 403. 310 DILAPIDATIONS. Pulling down wall. Leaving new building out of repair. Covenant to -teep in repair. To leave in repair. To maintain, sustain, and repair. ments, or additions, as should be erected, set up, or made by the lessee {u). If a lessee covenant to support and maintain the brick walls belonging to the premises, and he pulls down a brick wall which divides a front court-yard from another court at the side of the house, it will be a breach of the covenant (x). A lessee covenanted to preserve and keep, and at the end of the term leave the demised premises in good and tenantable repair : during the term he erected a lean-to, with a roof so ill-constructed that it did not exclude the weather, and so left it at the end of the term. This was held to be a breach of his covenant {y). Where a man covenants to keep buildings in repair, and he pulls them down, or suffers them to decay, he is immediately guilty of a breach of his covenant, and an action may be maintained against him before the term has expired (z). But if he covenant to leave them in as good a state as he found them, and then pull them down, he will be guilty of no breach of covenant, for he may rebuild them ; there- fore no action will lie before the end of the term (a). Where the lessee covenanted to maintain, sustain, and repair two messuages ; to an action on a bond given for the performance of these covenants, he pleaded that he had repaired all the messuages, with the exception of one kitchen, which was so ruinous that he could not repair it, but that he had pulled it down and built another in as short a time as possible ; and that he had at all times well repaired the new kitchen. The court, upon demurrer to this plea, de- cided that though it would have been good in an action (m) Doe dem. Dalton v. Jones, 1 Nev. & M. 6 ; 4 B. & Ad. 126. (x) Doe dem. Wetherell v. Bird, 6 C. & P. 195. See also Corporation of London v. Venables, 6 C. & P. 196. {y) Stanley v. Twogood, 3 Scott, 313 ; 3 Bing. N. C. 4 ; 2 Hodges, 132. (z) Shep. Touch. 173 ; Luxmore v. Robson, 1 B. & A. 584. (a) Shep. Touch. 173. OF BREACHES OF THE COVENANT TO REPAIR. 311 of waste, yet that it was bad to that action upon a covenant by which lie had tied himself down to an inconvenience which he ought at his peril to provide for {b). If a man covenant to repair a house, and it become Reasonable ruinous by accident, the covenant will not be broken till after a convenient time for its reparation has repairs after elapsed (c) : and if he covenant to repair it before a particular day, and the reparation by such day be rendered impossible by the act of God, this is no breach of the covenant. But he is bound to repair it as soon as possible (cl). “ There are no particular formalities requisite to Agreement to give validity to an express agreement to repair, that it should be by writing or under seal. But an agreement by word of mouth between landlord and tenant, or an agreement contained in a written lease, void as a lease for want of a stamp, is binding on the tenant (e), and as absolute and unqualified in its operation as if it were by deed under seal (f ) ; and any words which show the intention that the repairs shall be done will be sufficient. Thus, where the words of a deed were ; ‘ it is agreed the lessee shall keep the house in good repair, the lessor putting it in good repair,’ it was held that an action of co- venant lay against the lessor” (g). An agreement to leave a farm as found, is an agreement to leave it in tenantable repair, if it was found so ; and will maintain a declaration so laid (h). By agreement, dated 20th October, 1824, reciting Pistor r. a former agreement in 1819, for the grant of a lease of copyhold premises to A. B. for twenty-one years, from the 25th of March, 1820 ; and that A. B. had (i) Wood V. Jvert/f 2 Leon. 189. (e) Shep. Touch. 173 ; Sir Ant. Main*s Case, 5 Rep. 21. (rf) Shep. Touch. 174. (e) Richardson v. Gifford, 1 Ad. & E. 52 ; 3 N. & M. 325. (/) Conolly V. Baxter, 2 Stark. 525. Ig) 1 Esp. 278 ; Gibbons, on Dilapidations, p. 66. \h) Winn V. White, 2 W. Bl. 840. 312 DILAPIDATIONS. requested, and the plaintiff had agreed, that the defendant should be accepted as tenant, and a lease should be granted to him instead of to A. on the same terms ; and that the plaintiff was desirous to let the premises to the defendant as soon as a good license for that purpose should be granted to him by the Lord of the Manor, but not before : the plaintiff, in consideration of the covenants and agreements thereinafter contained on the part of the defendant, covenanted that he would, so soon as a good license for that purpose should have been procured to him from the lord, at the defendant’s expense, lease the premises to the defendant for all the residue then unexpired of the term of twenty- one years, from the 25th of March, 1820, &c. ; and the defendant thereby covenanted, from thenceforth yearly during the remainder to come of the said term, to pay the plaintiff the rent, and also that he would, from time to time during the time to be granted as aforesaid, keep the premises in repair, &c. The agreement contained also a covenant by the plaintiff for quiet enjoyment during the remainder of the term, on payment of the rent and perform- ances of the covenants. The defendant entered upon the premises, and occupied them until the expiration of twenty-one years, from the 25th of March, 1820 : — Held, that he was liable on the covenant for repair, although no lease had ever been made to him pursuant to the agreement, nor any license obtained from the lord for that purpose (i). Sect. IV. — 0/ the Landlord's Remedies for Dilapidations. Division of PROCEEDINGS in law in respect to dilapidations subject. are either preventive or remedial. ' To the first class we assign the injunction issued by a court of equity to restrain parties from committing waste : to the (0 Pistor V. Calor, 9 M. & W. 315. landlord’s remedies for dilapidations. 313 second class, the actions of assumpsit, debt, cove- nant, ejectment, or case in the nature of waste, which the party aggrieved may bring against the wrono^-doer. It may often happen that mischief once done is injunction, irreparable. The assistance of the law may be invoked to punish the aggressor, or to recover com- pensation for tlie party injured; but the nature of the injury may be such as to preclude the possibility of satisfaction. The consec|uences of the wrongful act cannot be repaired ; and damages, however large, may be a very inadequate compensation. Thus, a noble avenue of trees may be cut down ; or a wall destroyed on which was a valuable painting ; or some piece of costly sculpture be shattered. The reversioner in these and similar cases, finds little relief in the most vindictive assessment of damages in his favour : the money will not replace what has been despoiled, — a century must elapse ere the grove can flourish again ; and a much greater interval may pass away ere a genius shall arise who can replace the broken sculpture, or the beautiful picture. Hence the law provides a summary mode of pre- venting the infliction of such injuries, by application to a court of equity for an injunction, to restrain persons from the commission of wrongs such as these, on property of which they may have for a time the possession and usufruct. Tlie court, how- oniy granted ever, will not lightly interfere with the partv in w^ereserious possession, in the exercise or what he considers his threatened, rights ; good cause must be shown by the petitioner who would call into exercise the summary power of the court : there must be an apparent intention on the part of the tenant to do some irreparable injury to the premises. I'his intention is most commonly evidenced by some act of waste committed, or, at least, by certain preliminary steps being taken, by the party whom it is sought to restrain. If, therefore, he send a surveyor to mark trees (^), or threaten to {k) Jackson v. Cator, 6 Vesey, 688. 314 DILAPIDATIONS. open mines (/), the court will interfere. An injunc- tion has been g^ranted against a person who only insisted on a right to commit waste (m). Notfortri- But for trivial injuries done or contemplated, no vial mischief. will be issued (n) ; nor where the applica- tioncomes long after the acts complained of havebeen done, and when those acts have ceased, therefore, to be any intimation of an intention to commit future waste. Tenants will be restrained by injunction from making such alterations in their tenements as, in the opinion of all mankind would be improvements, if these alterations are distasteful to those who have a perma- nent interest in the property (o), and a court of equity will restrain a tenant from committing an act con- trary to his own covenant, whether it be waste or not (p). Where Where the tenant insists on his right to do certain on°dLV^tld * which, if done, will cause irreparable mischief right. to the party resisting, the court will grant an injunc- tion until the right can be tried in an action at law. Thus, where a tenant claimed the right to remove valuable trade-fixtures, which the landlord disputed, and it appeared that the right was doubtful, the tenant was restrained from removing them until judg- ment was given Who may Any person who has right to the land, and who would be prejudiced by the waste in contemplation, tion. may apply for an injunction. There need be no privity between the parties. A ground landlord may enjoin the under-lessee of his tenant (r) ; or this protection maybe afforded to the contingent interests (Z) Gibson v. Smith, 2 Atk. 182. (m) Barnardiston, 494. (n) Wilson v. Bragg, Bac. Abr. Waste O. ; and Barry v. Barry, 1 Jac. & Walker, 651. (o) But see Mollinmx v. Powell, 3 P. Wms. 268, n. {p) Lord Grey de Wilton v. Saxon, 6 Ves. 106 ; Drury V. Molins, ibid. 328 ; London (Mayor) v. Hedger, 18 Ves. 353. {q) Sunderland v. Newton, 3 Sim. 450. (r) Farrant v. Lovel, 3 Atk. 723 ; Amb. 105. landlord’s remedies for dilapidations. 315 of an executory devisee (s), or of a child in ventre sa mere. With the injunction the court will sometimes grant Account, an account, by which the defendant will be compelled to give compensation for waste already committed. This is only done, however, to avoid multiplicity of suits, and will never be granted except as auxiliary to the injunction {t). In certain cases of extreme urgency, the court when will grant an injunction in vacation (w) ; but never when the party complained of claims the inheritance, unless such claim is manifestly groundless (a:). Though only one act of waste is proved, the injunction is to restrain waste generally {y). At common law, the reversioner has a right to Entry to view enter on the premises and view the state of repair (z), after giving notice to the tenant so that he may not be taken by surprise (a). If the latter offer any ob- struction, he is liable to an action on the case (b). The lessor, however, has no right to enter on the premises and do the repairs himself, unless there was some stipulation to that effect at the time of the letting (c). But if, by the provisoes in the lease, the term be forfeited by the tenant's neglect to re- pair, then, as the lessor may enter and avoid the lease, so he may enter and do the repairs without avoiding the lease, and he will be entitled to recover from the tenant all the costs of those repairs which were essential to prevent the forfeiture of the estate, as damages consequent on the tenant’s breach of contract (d). (s) Robinson v. Litton, 3 Atk. 209. (0 Jesus College v. Bloom, 3 Atk. 362 ; Amb. 54 ; Bishop Winchester v. Knight, 1 P. Wras. 106. (m) Laythorp v. Marsh, 5 Ves. 261. {x) Lowther V. Stamper, 3 Atk. 496. {y) Coffin V. Coffin, 6 Mad. 17. \z) 2 Inst. 306. (a) Doe dem. Wetherell v. Bird, 6 C. & P. 195. (i) Hunt V. Doivman, Cro. Jac. 478. (c) Barker v. Barker, 3 C. & P. 557 ; Best. {d) Colley v. Streeton, 2 B. & C. 273. 316 Remedy by action. On the contract. For the tort. Ejectment for the forfeiture. DILAPIDATIONS. We have already seen that the tenant may be under a liability to repair, arising from a contract either express or implied. An implied contract to repair, springs from the relation of land- lord and tenant, and is a conclusion of law from the relative situation of the parties, without any agreement on either side on the subject. An ex- press contract may be merely verbal, or it may be in writing not under seal, or it may be by covenant : according to the nature of the contract will be the remedy for the breach of it. If the agreement to repair be under seal, an action of covenant must be brought to recover damages for the breach ; or, if compliance with the covenant be secured by a penalty, debt will lie ; if it be a parol contract, an action on the agreement can be instituted ; if it be merely a liability which the law imposes, as the re- sult of an implied undertaking, assumpsit may be brought for the recovery of compensation for neglect to fulfil it. Again ; a neglect to repair where there is an obli- gation to do so, may be regarded either as a breach of contract, or as a tort, or wrongful act. If the former view be taken, one of the above-named re- medies, selected in accordance with the nature of the instrument out of which the contract arises, will vindicate the rights of the party injured. But the complainant may treat the commission of waste as a wrongful act or misfeasance, and as an injury to his reversionary estate ; and in this view of it, he will be entitled to bring an action on the case in the nature of waste. Finally ; by the conditions of the tenancy, a neglect or refusal to repair, may incur a forfeiture, and the landlord will then be entitled to recover possession of the premises by an action of eject- ment. Hence a landlord, lessor, or reversioner, may maintain against the tenant who neglects to repair, either an action of assumpsit on his implied contract, or on his express agreement, an action of covenant landlord’s remedies for dilapidations. 317 or debt for the penalty, or an action on the case ; or, he may proceed in ejectment to recover pos- session. A few words will suffice to explain these respectively. A tenant-at-will being possessed of an estate of a no remedy frail and uncertain tenure, incurs no liability lor repairs. Against such an one the landlord can have wui for per- no remedy for permissive waste ; — he can enter, and”"igtr!^ do whatever repairs are necessary himself. If the tenant were to expend money on the premises, he might be evicted immediately afterwards, and lose all the benefits of his outlay. He enjoys no rights in respect of the estate, but at the caprice of the land- lord ; and he incurs no liabilities. He will be answerable, however, in an action of trespass for voluntary waste. A tenant from year to year is differently circum- Tenant from stanced. He cannot be evicted without due notice, His estate is not determinable until a certain fixed period, and in the meantime he enjoys the property. Hence he is liable for certain repairs ; and if he fail to do them, he may be sued on an implied contract, to maintain the tenement in a tenantable state. In such an action damages will be recovered equal to the costs of repair. Where there has been an express agreement not Action on under seal between the parties as to repairs, an action for the breach should be on the agreement, .the declaration stating mutual promises, and the breaches complained of, in the terms of the agree- ment. In an action of assumpsit on the implied contract On implied to maintain the buildings in a tenantable state, care must be taken in describing the nature of the lia- bility, that it may appear to be that which the law regards as springing from the relation of landlord and tenant. I’hus a declaration, that “ in considera- tion that the defendant had become and was tenant to the plaintiff, of a certain messuage, &c, he under- took to keep the place in good tenantable repair, to uphold and support^ and to leave the premises in 318 DILAPIDATIONS. Tenant on sufferance. Assignee and personal representa- tive. Action of covenant. the state he found them,” is bad, such an undertaking not resulting from the relation of the parties (e). A tenant on sufferance, or one who holds over after the expiration of the lease, may be treated as an assignee, as he impliedly engages to observe such of the covenants contained in the lease as are appli- cable to his new holding ; and for the breach of which he will be liable in assumpsit or case (/). If he commit any act of waste, the lessor may either have an action of trespass, treating the wrongful act as a determination of the right of possession (^), or he may maintain an action on the case, treating the possessory right of the tenant as continuing, and the act as injurious to his reversion (A). Assumpsit may be maintained against the assignee or the personal representatives of a tenant, to recover damages for dilapidations accrued since the as- signment, or before or since the decease of the tenant. Where the lessee has entered into a contract under seal to repair, he may be sued for the breach of it in an action of covenant. The declaration should set out the terms of the covenant verbatim, or the legal effect of it; and if there be any exception of casualties, such as damage by fire, or otherwise, it must be stated, and also that the damage, &c. did not arise therefrom (i). If a covenant with such exceptions be stated as a general covenant to repair, it is a fatal variance (k). Covenant may also be maintained by tlie heir or assignee of the reversion against the assignee or personal representatives of the lessee for breach of the covenant to repair, which runs with the land(Z). (e) Brown v. Crump, 1 Marsh, 567 ; 6 Taun. 300, S. C. (/) Bromfield v. Williamson, Style, 407 ; Johnson v. St. Peters, Hereford, 4 Ad. & E. 520. {g) Walgrave v. Somerset, 4 Leon. 167 ; Co Litt. 57, a. (4) West V. Treude, Cro. Car. 187 ; Burchell v. Hornsby, 1 Camp. 360. (i) 4 Camp. 20 ; 2 B. & B. 395 ; 5 J. B. Moore, 164, S. C. (A:) Tempany v. Burnand, 4 Camp. 20 ; Ellenborough. (0 Chit. PI. vol. 1, p. 116, 6th edition. landlord’s remedies for dilapidations. 319 An heir(m), or an executor (w), may be declared against as assignee, for a breach of covenant after he became interested (o). But an under-lessee cannot be sued in covenant or debt on the original lease {p). An assignee of part of the reversion {q), may maintain this action, and an assignee of part only of the premises is liable to it (r) ; although debt could not be, maintained in the latter case ( 5 ). If the performance of the covenants in a lease is Debt for secured by a penalty, an action of debt may be brought to recover it; but, in general, it is more desirable to proceed by an action of covenant, in which damages beyond the amount of the penalty may be recovered for the several breaches ; whereas if the plaintiff proceed for the penalty, he will be precluded from suing afterwards for general da- mages. And where rent is due upon a lease, and there has also been another breach for not repairing, covenant is preferable to debt : because in the former, both the breaches of covenant may be in- cluded in one action, and damages for the whole be recovered” {t). If the breach of covenant be treated as a tort, Action on the and an action on the case be brought, as for an injury to the reversion, it must clearly appear that the reversionary interest of the plaintiff has actually been injured, either by diminishing the value of the property, or affecting the evidence of the plaintiff’s title thereto {u). It is not, however, essential that the alteration should actually lessen the marketable value of the premises, it is sufficient if they be there- (m) Derisley anor. v. Custance, 4 T. R. 75. (n) 1 Salk. 316, 817. ( 0 ) Chit. PI. vol. 2, p. 367, note (n), 6th edition. lp) Holford V. Hatch, Doug. 183, 445 ; Cowp. 766. l q) 2 B. & Aid. 105 ; 4 B. & C. 157. (r) Congham v. King, Cro. Car. 221. (^) Curtis V. Shirley, 1 Bing. N. C. 756. (t) Chit. PI. vol. 1, p. 118, 6th edition. (m) Young v. Spencer, 10 B. & C. 145. 320 DILAPIDATIONS. by rendered less suitable to the purposes for which the reversioner intended tliem (x). PermisBive It has been nauch disputed whether an action on waste. case in the nature of waste will lie for permissive waste, or a mere neglect to repair, against any one who has not entered into an express contract to repair. It is unnecessary to go through the various arguments; but the conclusion appears to be that such an action is maintainable against all but tenants at will. Three cases were deemed autho- rities against such an opinion, Gibson v. Wells Herne v. Benhow (z), and Jones v. Hill {a) ; but the first of these was a decision in the case of a tenant-at-will, and therefore not at variance with the above conclusion ; in the second, though the tenant held under a lease, yet the authority cited in support of the judgment did not bear it out, and the question appears not to have been much consi- dered ; and the third was decided on a collateral point, and is no authority on either side (5). For voluntary waste, tenants, whatever be the nature of their tenure, are clearly liable. Where a tenant occupies premises, and pays rent under a lease void by the statute of frauds, he becomes liable to repair such premises according to the cove- nants contained in that lease (c). At what time actioii on the case for waste, either wilful or it may be permissive, may be maintained by the lessor during brought. tenements must be in a state (x) Governors of Harrow School v. Alderton, 2 B. & P. 86. (y) 1 N. R. 290. (z) 4 Taun. 764. (a) 7 Taun. 392; 1 Moore, 100. (b) Those who may wish to pursue this investigation, may consult Coote’s L. & T. pp. 569 — 571 ; Harrison’s Woodfall’s L. & T. p. 427 ; Chit. PI. vol. 1. p. 141 ; 6th edition ; ibid, vol. 2, p. 193, n. (Ar), and the various authorities there cited. (c) Richardson v. Gifford, 1 Ad. & E. 52 ; 3 Nev. & M. 325. (d) Provost, <^c. of Queen's College, Oxford v. Hallett, 14 East, 489. landlord’s remedies for dilatidations. 321 of dilapidation at the time of action brought, for although the neglect to repair at any time during the term, be a breach of contract by which the plaintiff is injured, yet that breach of contract is purged, and the injury and right of action satisfied and discharged by the subsequent restoration (e). Of course if the repairs be done by the landlord before action brought, this cannot be pleaded in answer to his claim for damages (/). This action may be maintained at the suit of a landlord against a tenant who is holding over after the expiration of a notice to quit {g). By the 3 & 4 W. IV. c. 42, s. 2, an important Effect of 3& alteration has been made in the common law doc- 42 "!’ 2 ^^ ’ trine, actio personalis moritur cum persona, as well in favour of executors and administrators of the party injured, as against the personal representative of the party injured ; as far as regards injuries to per- sonal and real property. It is thereby enacted, that “ actions of trespass or case may be maintained by the executors or administrators of any person de- ceased, for any injury to the real estate of such person, committed in his life-time, for which an action might have been maintained by such person, so as such injury shall have been committed within six calendar months before the death of such person, and provided that such action be brought within one year after the death ; and the damages when reco- vered shall be part of the ‘personal estate of such person ; and actions of trespass or case may be maintained against executors or administrators for any wrong committed by the deceased in his life- time to another ; in respect of his property, real or personal, so as such injury shall have been committed within six calendar months before such person’s death, and so as such action shall be brought within six calendar months after such executors or'adminis- (e) Whelpdale's Case, 5 Rep. 119 b. ; 2 Inst. 306; Co. Litt. 53, a. (/) Walton V. Waterhouse, 3 Saun. 420. iy) Burchett v. Hornsby, 1 Camp. 360. H* 322 DILAPIDATIONS. Damages, how to be estimated. Who may claim. Damages beyond costs of repairs. trators should have taken upon themselves the ad- ministration of the estate and effects ; and the damages to be recovered in such action, shall be payable in like order of administration as simple contract debts.” Subject therefore to the restric- tions here imposed, actions may be maintained by and against executors and administrators for breaches of covenant to repair during the life of their testator or intestate. In assessing the damages on an action for dilapi- dations, it is customary to give the amount requisite for the repairs. Nor will this custom be varied, although part of the dilapidations occurred when another person was entitled to the reversion, or another person in possession of the tenements. It is for the then dilapidated stale of the premises that an action is brought, and to damages that the then reversioner is entitled. If, therefore, the owner of the reversion do not take advantage of the breach of a covenant to repair in his life-time, that cause of action does not vest in his executor, but descends, with the reversion, to his heir (h). Or rather, perhaps, he has a new and independent right to sue for the continuing injury to his reversionary estate. Although, when tenements are dilapidated, the landlord has, generally speaking, no right to enter and execute repairs ; yet the costs necessarily so ex- pended may be recovered from the tenant who is under agreement to repair, although the landlord entered and did the repairs without the assent of the former ; if the landlord is himself a lessee under covenant to repair, and is threatened with an eject- ment on account of the dilapidations (i). Under certain circumstances damages may be given beyond the amount of the actual cost of the repairs ; provided the plaintiff has suffered such damages in consequence of the defendant’s neglect to repair, or commission of waste. Thus, where a (h) Vivian v. Champion, 2 Lord Ray. 1125 ; 1 Salk. 141. (0 Colley V. Streeton, 2 B. & C. 273 ; S. C. 3 D. & R. landlord’s remedies for dilapidations. 323 tenant who was bound to repair, left, and at the end of the tenancy the premises were out of repair, the jury were directed to give the landlord, in an action against the tenant, compensation for the loss of the use of the premises while they were undergoing, repair, in addition to the actual expense of the repairs (k). So, where A. took premises under a repairing lease, and underlet them to 5., who also entered into a covenant to repair ; and the under-lessee, having suffered the premises to go out of repair, the original lessor sued the original lessee for his breach of covenant: the court held, that the damages and costs of that action, and also the costs of defending it, might be recovered as special damages, in an action by the lessee against his under-tenant for the breach of his covenant to repair (/). In estimating damages, the general state of the premises at the time of the demise may be taken into considera- tion (?n ) ; but the defendant will not be allowed to go into matters of detail (w). Where the neglect to repair, or the commission of Action of voluntary waste, incurs, by the conditions of the tenancy, the penalty of forfeiture, the lessor may enter and determine the lease, or maintain ejectment to recover possession of the premises. This action must be brought while the dilapida- when to be tions remain ; but it need not be instituted so soon they occur, nor within any given period ; for the breach of the covenant to repair is a continuing for- feiture, of which advantage may be taken at any time, until the breach is purged by repairs. If, during this interval, the landlord have received rent, or done any other act to recognize the tenancy, it will not operate as a waiver, so as to prevent him (k) Woods V. Pope, 6 C. & P. 782 ; Gaselee. (0 Neale v. Wyllie, 3 B. & C. 533 ; S. C. 5 D. & R. 442. (m) Burdett v. Withers, 2 N. & P. 122. (w) Mantz v. Goring, 4 Bing. N. C. 451. H 2 324 DILAPIDATIONS. from entering subsequently if the dilapidations con- tinue (o). In ejectment for a forfeiture under a covenant to keep in tenantable repair, it is not, however, neces- ^»ary to show that the premises were not in repair on the day of the demise ; but if proved to be out of repair a short time previously, it is incumbent on the defendant to give evidence that they had been put into repair before the right to re-enter ac- crued (p). As to waiver Where there was a general covenant to repair, of forfeiture, a covenaiit to repair within a certain time after notice, and the landlord gave the tenant notice to repair forthwith ; it was held that such notice was no waiver of the right of entry, accruing under the general covenant to repair (q). In a similar case, however, it was held that the notice to repair within a limited time was an implied promise to allow that period for the tenant to purge his forfeiture, and that the landlord could not enter until that time had expired (r). A covenant to do some particular act, as to make a shop front, is not a continuing covenant; and if, therefore, the right of entry for a breach of it be once waived, it cannot afterwards be taken advan- tage of as a forfeiture of the lease (s). If, on the trial of an ejectment against the as- signee of a tenant on a forfeiture of the lease by a breach of covenant, it appears that the land- lord acted so as to induce the tenant’s assignee to believe that the latter was doing all that he ought, the landlord cannot recover, although the covenants be actually broken, and there be neither a (o) Fryett d. Harris v. Jeffereys^ 1 Esp. 393 ; Doed. Sore V. A^ers, 1 Ry. & Moo. 29 ; 1 C. & P. 154 ; Doe d. Bos- cawen v. Bliss, 4 Taun. 735. {p) Doe d. Hemmings v. Durnford, 2 C. & J. 667. (g) Roe d. Goatly v. Paine, 2 Camp. 520. {r) Doe d. Morecroft v. Meux, 4 B & C. 606. (s) Doe d. Nash v. Birch, 1 M. & W. 402. TENANTS REMEDIES FOR DILAPIDATIONS. 325 release nor a dispensation on the part of the land- lord (0. A court of equity has repeatedly refused to re- Equitable lieve parties from a forfeiture for breach of covenant to repair, on the premises bein^ thoroughly rein- stated, on the ground of its being an unwarrantable interference with the agreement between the par- ties (m). Under very peculiar circumstances a plaintiff was restrained from suing for the breach of such a covenant (x). The rule to be applied to all cases (except that of forfeiture for non-payment of rent), would seem to be, that courts of equity will relieve “ where the omission and consequent forfeiture are the effect of inevitable accident, and the injury or inconvenience arising from it is capable of compensation ; but where the transgression is wilful, or the compen- sation impracticable, the courts will refuse to inter- fere” (y). Sect. V. — 0/ the Tenant's Remedies for Dilapidations. No action can be brought by the lessee against his lessor for neglect to repair except upon an express contract. If the landlord has covenanted with the lessee to do certain repairs, he may be sued by the latter on that covenant ; and the same observations {mutatis mutandis)^ are applicable in this case, as where the landlord seeks to enforce the performance of such a covenant by the tenant. {t) Doe d. Knight v. Rowe^ 2 C. & P. 246 ; R. & M. 343 ; Abbott. See West v. Blakewag, 3 Sc. N. R. 199 ; 9 Dow. 846. See also Doe d. Sheppard v. Allen, 3 Taun. 78. {u) Wadham v. Calcraft, 10 Ves. 67 ; Eaton v. Lyon, 3 Ves. 692 ; Mosely v. Virgin, 3 Ves. 184 ; Hill v. Barclay, 16 Ves. 402 ; 18 Ves. 56 ; Bracehridge v. Buckley, 2 Price, 200 . * (x) Hannam v. South London Water Works Comp. 2 Mer. 65. (y) Rolfe V. Harris, 2 Price, 210, n. 326 DILAPIDATIONS. Tenant’s right to leave. Lessee charging lessor with cost of re- pairs. If, however, the tenant of a house from year to year, who is not under any agreement to repair, finds the premises becoming unsafe and useless for want of repairs, he may quit without giving notice ; nor will he be liable for rent after the occupation ceased to be beneficial (z). Thus, although the tenant be under an agreement to keep a house in tenantable repair, he may quit without notice during the continuance of the term, if he find it becoming unwholesome from insufficient drainage, which cannot be remedied without unreasonable outlay on his part (a). It is needless to add, that if the premises be burnt down, or destroyed by a flood or hurricane, the tenant is not liable for rent, so long as he is deprived of the use thereof. In this respect there is a broad distinction between yearly tenants and those who hold under a lease. The former are under a liability to pay rent resulting from their occupation and from that alone ; and, hence, when that occupation, either I ceases entirely, or ceases to be beneficial, they are I exonerated from all claims for rent : but the latter ! are bound by special covenant to the end of their term, whatever may be the casualty which has hap- pened to deprive them of the use and enjoyment of the tenements. Where the lessee executes repairs to which the lessor is liable, it has been held that he might deduct i the amount laid out from the rent (6) : but this has I since been frequently and reasonably doubted (c). At I all events, a lessee cannot charge his lessor without V giving him notice, because the lessor may not know I that such repairs are wanting (d), I {z) Edwards v. Hetherington, 7 D. & R. 117. I| («) Collins Barrow , 1 Moo. & Rob. 112; Bayley. Hi {b) Taylor v. Beal, Cro. Eliz. 222. ft j (c) Per Holt, C. J. 1 Lord Ray. 420 ; Clayton v. Kynasion, •f B. N. P. 176. See also Robinson v. Lewis, 10 East, 227 ; Ij Graham v. Tate, 1 M. & S. 609. ■] {d) Per Mansfield C. J. and Gibbs, J., 5 Taun. 96; I. Moore v. Clarke. ■ a 327 CHAPTER III. ASSESSMENT AND VALUATION OF DILAPIDATIONS. Such infinite variety of practice has hitherto ex- Variety of isted in the valuation or assessment of dilapidations that it would appear to be most desirable to en- deavour to establish some general rule of practice or precedent, by which valuers might be guided, and the accuracy of their valuations tested. That some such standard is much needed, is Necessity of proved by the fact that the Royal Institute of British Architects have lately published “a Report of the select Committee on Dilapidations,” which having committee of been prepared by “experienced members of the A.^on di-^’ profession,” is put forth as calculated to “ serve ^^P'dations. the profession as a work of reference in such matters.” Unfortunately however for the permanent settle- its errors, ment of the difficulties by which this question is surrounded ; — the committee, overlooking the impor- tance of the relative legal obligations of the parties; have adopted one code, or specification, by which all parties alike are to be bound, whilst their adapta- tions of the various positions of parties to this standard are replete with error. Of this few evidences will suffice. A tenancy at will, and a yearly tenancy are classed as one and the same thing; and the liability of a tenant at will is said, “ in the opinion of the committee,” to “ extend to making good all works that may have been broken, damaged, or defaced ” (a). That it would be most desirable in many, if not all, instances to (a) Report of the Committee of the R. I. B. A. on Dila- pidations. 328 DILAPIDATIONS. Suggestion to avoid liti- gation as to extent of di- lapidations. attach this responsibility to tenants-at-will, is not the opinion of the committee alone. But to what purpose does the committee lay down a schedule of charges as incumbent on a party whom the law specially absolves ? It is to be regretted that this committee did not conduct their investigation under the guidance of some competent member of the legal profession. As it is, their labour has been labour in vain ; and we have directed attention to its erroneous results only to utterly repudiate its authority, and to hope that it may soon be replaced by some more carefully collated and competent standard, emanating from the same body. There is however one practical suggestion con- tained in this report, which, if generally adopted, would at once put an end to all question as to the extent of the dilapidations to be valued ; and inas- much as the principal source of litigation on this subject, is with relation to the state of the property at the commencement of the tenancy, it is obvious that much trouble, expense, and annoyance to all parties might be avoided by conforming to the proposed remedy, which we cordially recommend to the consideration of our readers, and which runs as follows : — “ To obviate this difficulty, in a manner which the council believe will be found applicable to most cases which can occur, they propose that, as a pre- liminary to the execution of leases in general (i), the premises to be leased should be surveyed, both on the part of the lessor and lessee, and that a schedule should be drawn up, signed by them or their agents, specifying the actual state of every part of the buildings, by reference to which the dilapidations should be assessed at the end of the term. Such a document universally accompanies agreements for the occupation of houses in France, under the name of the ‘ Hat des lieux' and its {b) And wherefore not also of agreements ? ASSESSiMKNT AND VALUATION OF DILAPIDATIONS. 3'29 adoption is strongly recommended by the council to the consideration of the profession at large, as a means of simplifying a question usually attended with much complexity, and seldom satisfactorily deternuned. As it is probable, in the existing state of the law, that this measure would generally ori- ginate with the lessee, it might be understood that he alone should bear the expense ; and, on this con- dition, no landlord could reasonably object to be- come a party to it.” It appears then to us that the only safe system to schedules of be adopted, in laying down a rule for the valuation of dilapidations, is by giving a schedule or specified- with each tion of all the various items of reinstatement (each under the heading of its own peculiar trade) to which the relative position of any parties may render them liable; since it is altogether absurd to en- deavour to set forth any one sdiedule equally adapted for a tenant from year to year, and for a tenant for a term of years. At the same time it must be borne in mind that Difference of DILAPIDATIONS wholly differ from repairs, > ‘iso - tion anlf" much as that the latter may occur continually under rkpair. the repairing clause of a current lease, — whilst the former can only be demanded once, viz., at the end of the term. But in the course of any legal question of amount as to a valuation of dilapidations, evi- dence of notices of any specifications to perform repairs will always materially affect the point of the dilapidations, either in increase or in reduction of their amount, as the case may be. It must be premised, that in the ensuing sections. Landlord s all dilapidations are presumed to fall upon the dllapTda-"'^ lord, unless specified as belonging to the tenant ; tions. and it must moreover be borne in mind, that as local custom very properly exercises a powerful influence influence or over all valuations, so the rules hereinafter laid down oTvaiua^wm^^ must be taken as being subject to such modification o/diiapida- as the peculiar custom of the “ locus in quo,” may render necessary. II 3 330 PART I. ASSESSMENT AND VALUATION OF DILAPIDA- TIONS OF CHURCH PROPERTY. Sect. I . — In Case of an Archbishop^ Bishop, Dean, Prebend, Rector, or Vicar. Liabilities of The law, as has been already shown (a), has im- inciimbents. pQged heavy responsibilities on incumbents in the matter of repairs and dilapidations. And it must be observed, that being bound down by no particular covenants to repair, the law assumes in their case a heavier responsibility from this fact, and visits the results of negligence or carelessness the more severely ; in direct opposition to the custom in lay tenancies, where default of special covenants lays the burden of repairs upon the landlord. Specification of Dilapidations, to which an In- cumbent, other than a Curate, is liable. Bricklayer. CuT out and Underpin defective foundations; put- ting in concrete, and renewing footings where ne- cessary ; needling and shoring up the walls dur- ing the progress of the work. Cut out, replace, and make good all defective brick-work ; taking down, and rebuilding all such portions as are so far cracked, split, bulged, or battering, as to be in- capable of being effectually repaired. Take out and renew, or supply all defective pointing, or open joints in the walls, gables, parapets, and chimney-shafts. Replace broken chimney-pots, and reset those which are loose. Examine, empty, cleanse, and repair all drains and cesspools."^ Clear and cart away all accumula- tions of soil, dirt, earth, and rubbish. (a) Ante, chap. I. sect. i. p. 280. SPECIFICATION OF CLERICAL DILAPIDATIONS. 331 Replace all broken or defective slates or tiles, and siater. refix those which are loose ; stripping, and re-slating, or re-tiling, and renewing the lathing where neces- sary. Restore all defective fillettings, and external pointing to tiling. Examine, repair, and replace all broken or defec- Carpenter, tive timbers, joists, girders, brestsummers, beams, story-posts, rafters, purlins, &c. Fix and restore to a proper level, all timbers out of the level, or not perpendicular. Secure, make good, repair, and reinstate all de- cayed, defective, broken, or loose weather-boarding, wood-fences, paling, dormer door and window- frames, windows, sills, skylights, water-trunks, wooden gutters, roofs, and roof-timbers, cisterns, and cistern-covers, gutters, flats, and other external tim- ber and wood-work. Secure and make good, repair and reinstate all gates and gate-posts, &c. Restore the level of the hangings, and renew all defective fastenings to the same. Secure and make good all decayed, broken, orjoiner. damaged flooring. Secure, make good, repair, or reinstate, all damaged, decayed, broken, or defective joiner’s work ; and refix such as may be loose. Re- hang all doors and shutters, where requisite, and re- pair the fastenings of the same. Examine, repair, and reinstate all window-frames, linings, backs, sashes, headings, sash-frames, lines, pullies, weights, and sash-fastenings. Repair broken stair-treads, nos- ings, risers, &c. ; and secure those which are loose. Replace broken balusters, hand-rails, newels, and spandrils. Secure, make good, and reinstate all damaged, Plumber, warped or loosened lead-work. Solder and make good all cracks Reinstate, and replace the deficiencies of all hips, ridges, valleys,flats, gutters, flashings, aprons, dormer tops and cheeks, cisterns, cistern heads, rain- water pipes and heads, sinks, supply and waste- pipes, &c. 332 DILAPIDATIONS. Glazier. Mason. Pavior. Plasterer. Smith and ironmonger. Make good all damage to pumps, water-closet ap- paratus, soil-pipes, traps, &c. ; and reinstate and leave them effective, and fit for immediate use. Reinstate all broken and cracked glass, make good all puttying and back puttying, reinstate all lead- work to skylights or windows, and renew bandings and cementing where necessary. Make good all defective or broken coping to walls, gables, parapets, and chimnies, and reinstate and refix all such as may be loose. Reinstate all cornices, blocking courses, string courses, plinths, lintels, sills, area or other curbs and copings, and balcony land- ings; and generally reinstate all stonework, whether external or internal. Examine, repair, and reinstate all paving, chan- nels, sinks, sinkstones, shelves, bearers, &c. ; make good all broken nosings of steps, and repair and re- instate all broken or uneven landings. Make good, repair, and reinstate or renew all chimney-pieces, slabs, hearths, and inner hearths. Replace defective cramps, make good defective lead, and point up all decayed or open joints. Reinstate all paving and channeling to a proper level. Reinstate all defective, damaged, or decayed plaster- ing, cornices, mouldings, enrichments, compo or cement work, both externally and internally ; and recolour the same where defaced by repairing or otherwise. Make good, and reinstate all broken or damaged railings, gates, gratings, skylights, fanlights, sashes, casements, saddle-bars, window-bars, guards, bal- conies, verandahs and other external iron-work. Reinstate all defective hangings and fastenings, both external and internal. Repair, and reinstate all iron -balusters damaged or broken ; replace damaged iron-girders, beams, story-posts or ties ; reinstate all iron-pipes, eaves-guttering, cistern-heads, &c. ; take up, cleanse, and reinstate all drain-mouths and stench- traps. SPECIFICATION OF CLERICAL DILAPIDATIONS. 333 Repair and reinstate iron doors, shutters, shelves, bearers and frames. Make good all bolts, bars, locks, and other items of ironmongery, and replace lost or defective keys. Reinstate all canvas and papering torn or so da-P»per- maged as to be unlit for use. hanger. Paint all external wood and iron-work which has Painter, not been painted within the last three years ; make good the painting wliere damaged by the piecing or repairs of other trades, or where the work has been defaced from any cause. Make good all defects of every kind in respect Generally, of irremovable fixtures, also in respect of all offices, outbuildings, stables, coachhouses, piggeries, and other buildings ; but not in respect of the glebe land or garden. Also, where the repair of the chancel attaches to the incumbency, it must be made good in a similar manner with, and to the full effect of the foregoing specification. Sect II . — In the Case of a Curate. A CURATE, like a tenant at will, is liable for no re- Liabilities of pairs; but in certain cases, already cited (a), a por- ^ tion of his stipend may be retained by the patron of the benefice, for the purposes of necessary repair. {a) AntCy chap. I. sect. i. p. 280 . 334 PART II. DILAPIDATIONS OF LAY PROPERTY. Sect. I. — In Case of a Tenant at Will, A TENANT at will is by the very nature of his tenancy exempted from all liability for dilapidations of any kind. Even in case of wilful damage no remedy exists against him in this form ; but the landlord, having repaired the house, may recover damages by an action on the case. Sect. II. — In Case of a Tenant from Year to Year. A tenant from year to year is liable for all dilapi- dations consequent upon his tenancy, resulting from avoidable accident, carelessness, negligence, or wilful damage (a), but not from unavoidable accident, nor from the action of the elements. If, however, a tenant from year to year renews his tenancy without giving notice to his landlord of dilapidations or defects of repair, he adopts them as his own, and so renders himself liable to their consequences ; and this is no hardship, since it is obvious that every tenant has the remedy for all these difficulties in his own hands, by refusing to enter upon the tenancy of any house in an imperfect state of repair. Specification of Dilapidations to which a Tenant from Year to Year is liable. Bricklayer REPLACE all slates or tilcs broken by accident ; (as and slater, case of felling a tree, from such tree, or any portion of it falling upon the roof.) Repair, replace, secure, and makegood all defective eaves-guttering. Remove all accumulations of soil, earth, or rubbish (a) See Ante, chap. II. p. 296. DILAPIDATIONS OF LAY PROPERTY. 335 (except the emptying of cesspools, which is the customary duty of the landlord). Make good all main-timbers, weather-boarding, carpenter, and wooden fences, which may have been broken by avoidable accident, or cut into purposely. Secure and rehang all defective or loose external doors, gates, door-posts, or gate-posts, and make good all defective hinges and fastenings to the same. Secure and make good all loose or broken floors. Joiner. Secure and make good all joiner’s work broken or damaged during the tenancy. Rehang all doors and shutters, loose, or out of the level. Make good broken skylights, window-frames, sashes, headings, &c., and refix those which are loose. Replace broken or defective lines, weights, pullies, and sash fastenings. Repair broken balusters, hand-rails, newels, and stair-nosings. Secure and make good all lead-work warped, Plumber, loosened, or damaged. Examine, cleanse, and re- pair eaves-guttering, rain-water pipes and heads. Make good all damage to pumps, watercloset appa- ratus, soil-pipes, traps, &c., and leave them free, clear, and perfectly fit for use. Reinstate all cracked or broken glass (excepting Glazier, plate-glass, which need not be replaced, unless having two open cracks); make good all lead-lights bent, loosened or damaged. Reset, and make good all wall-copings disturbed or Mason, broken by the use of ladders, &c. ; and all area or railing-curbs broken by accident. Repair, fill in, and make good all cornices, lintels, sills, string- courses, plinths, and other external stone-work or dressings, damaged otherwise than by the fair wear and tear of time. Make good all broken nosings to steps and landings, and all chimney-pieces, slabs, and hearths, where damaged otherwise than by the settling or giving way of the house. Refix all loose masonry ; and re-lead, or point up all open joints. Repair, or replace all broken York or flat-stone Pavior. paving. Supply all deficient pavings and channels. Reset all channels out of the level. i 336 DILAPIDATIONS. Plasterer. Smith and ironmonger. Painter and paper- hanger. Generally. Extent of liability Replace all plastering, moulding, or enrichments damaged by violence. Recolour, where such re- pairs have been executed. Recolour generally edl plastering which has not been coloured within seven years, or which has been damaged by water, smoke, or otherwise. Make good all broken railings, gates, gratings, iron skylights, fanlights, and sashes. Rehang gates, where dehcient or loose ; and refix the fastenings, stops, and catches of the same, where necessary. Repair all eaves-guttering, pipes, rain-water pipe- heads, &c., where necessary. Reinstate, repair, or replace all damaged ironmongery, bells, wires, cranks, pullies, locks, bolts, bars, hinges, fastenings, &c., and replace all lost keys. Paint all external wood, stucco, and iron-work, which has not been painted within four years last past. Repair all papers damaged by violence, care- lessness, neglect, or any cause other than the actual settling, subsidence, or decay of the house. Paperings damaged from the effect of defective walls, walls built of old materials, or new walls used before they are perfectly dry, need not be replaced. Repair all damages to the premises or fixtures arising from avoidable accident, neglect, careless- ness, or malice ; that is to say, all damage for which the tenant cannot account in some reasonable manner. Sect. III . — In Case of a Tenant for a Term of Years. The situation of a tenant for a term of years, in default of any specific agreement as to repairs, is similar to that of a tenant from year to year certain, as detailed in the preceding section. The only variation will be, that the responsibilities of a tenant for a term will increase in proportion to the length of his term, and that he will be liable not only for any evident neglect but also for its conse- quences, immediate and remote ; and in proportion as IN CASE Of A TENANT UNDER COVENANT, &C. 337 by the length of term the landlord’s difficulties of specification are increased, so will be the burden of the tenant’s liabilities ; since it may be fairly presumed that no person would enter upon the occupation of a dilapidated dwelling for a term of years, without being cognizant of its state of repair. These considerations being duly taken into ac- specification count, the specification given in the preceding sec- tion (a), for the case of a tenant from year to year from year to certain, will equally apply to that of a tenant for term of years. Sect. IV. — In Case of a Tenant under Covenant to Repair. The liabilities of a lessee under covenant to repair, Extent of are, as has been already shown ( 6 ), almost unli- mited. The extent of the same lessee’s repairs of dilapidation must therefore be estimated in a like proportion. If the premises be destroyed by fire, or tempest, in^case of either partially or wholly, a lessee under covenant to ^ ' repair is liable to restore them ; unless fire and tempest be specially excepted. If the premises should fall down, from the break- if premises ing in 01 a sewer, or any other cause, the lessee is bound to restore them (c), but he may employ the old materials for that purpose. A tenant under covenant to repair is liable for all Ruinous damage done, as well to his own premises, as to ^aiis"^^* those of his neighbours, by the fall of any ruinous chimney, gable, parapet, or wall, excepting a party- wall (c?). (a) Ante, p. 334. \b) Ante, chap. ,11. sect. ii. p. 297. (c) The lessee, of course, preserving his remedy (if any) against other parties ; we are dealing here only with the mu- tual obligations of lessors and lessees. {d) Metropolitan Buildings Act, 7 & 8 Viet. c. 84, s. 44. 338 Bricklayer. Slater. Carpenter. Joiner. Specification of Dilapidations to which a Tenant under Covenant to Repair is liable. Cut out, and underpin defective foundations ; put- ting in concrete, and renewing footings where neces- sary ; needling and shoring up the walls during the progress of the work. Cut out, and replace, and make good all defective brick-work ; taking down and rebuilding all such portions as are so far cracked, split, bulged,' or battering, as to be incapable of being effectually repaired. Take out and renew or supply all defective pointing, or open joints in the walls, gables, parapets, and chimney-shafts. Re- place broken chimney-pots, and reset those which are loose. Examine, empty, cleanse, and repair, all drains and cesspools. Clear and cart away all accumula- tions of soil, dirt, earth, and rubbish. Replace all broken or defective slates or tiles, and refix those which are loose ; stripping and re-slating or retiling, and renewing the lathing where neces- sary. Restore all defective fillettings, and external pointing to tiling. Examine, repair, and replace all broken or defec- tive timbers, joists, girders, brestsummers, beams, story-posts, rafters, purlins, &c. Fix and restore to a proper level all timbers out of the level, or not perpendicular. Secure, make good, repair, and reinstate all de- cayed, defective, broken or loose weather-boarding, wooden fences, paling, dormer door and window- frames ; windows, sills, skylights, water-trunks, wooden gutters, roofs, and roof timbers, cisterns, and cistern-covers, gutters, flats, and other external tim- ber and wood- work. Secure and make good, repair and reinstate all gates and gate-posts, &c. ; and restore the level of the hanging, and renew all defective fastenings to the same. Secure and make good all decayed, broken, or damaged flooring. Secure, make good, repair, and SPECIFICATION OF DILAPIDATIONS, &C. 339 reinstate, all damaged, decayed, broken, or defective joiner’s work ; and refix such as may be loose. Re- hang all doors and shutters, where requisite, and re- pair the fastenings of the same. Examine, repair, and replace all window-frames, linings, backs, sashes, headings, sash-frames, lines, pullies, weights, and sash-fastenings. Repair broken stair-treads nosings, risers, &c. ; and secure those which are loose ; replace broken balusters, hand-rails, newels, and spandrils. Secure, make good, and reinstate all damaged, Plumber, warped or loosened lead- work. Solder and make good all cracks. Reinstate, and replace the deficiencies of all hips, ridges, valleys, flats, gutters, flashings, aprons, dormer tops and cheeks, cisterns, cistern- heads, rainwater-pipes and heads, sinks, supply and waste-pipes, &c. Make good all damage to pumps, water-closet ap- paratus, soil-pipes, traps, &c. ; and reinstate and leave them effective, and fit for immediate use. Reinstate all broken and cracked glass, make good Glazier, all puttying and back puttying. Reinstate all lead- work to skylights or windows, and renew bandings and cementing where necessary. Make good all defective or broken coping to walls, Mason, gables, parapets, and chimnies, and reinstate and refix all such as may be loose. Reinstate all cornices blocking-courses, string-courses, plinths, lintels, sills, area or other curbs and copings, and balcony land- ings; and generally reinstate all stone-work, whether external or internal. Examine, repair, and reinstate all paving, chan- nels, sinks, sink-stone, shelves, bearers, &c. ; make good all broken nosings of steps, and repair and re- instate all broken or uneven landings. Make good, repair, and reinstate or renew all chimneypieces, slabs, hearths, and inner hearths. Replace defective cramps ; make good defective lead, and point up all decayed or open joints. Reinstate all paving and channeling to a proper Pavior. level. 340 DILAPIDATIONS. Plasterer. Smith and Ironmonger. Paper- hanger. Painter, Generally. Reinstate all defective, clamag:ed, or decayed plas- tering, cornices, mouldings, enrichments, compo or cement work, both externally and internally : and recolour the same where defaced by repairing or otherwise. Make good, and reinstate all broken or damaged railings, gates, gratings, skylights, fanlights, sashes, casements, saddle-bars, window-bars, guards, bal- conies, verandahs and other external iron-work. Reinstate all defective hangings and fastenings, both external and internal. Repair and reinstate all iron-balusters damaged or broken. Replace damaged iron girders, beams, story-posts or ties; reinstate all iron pipes, eaves-guttering, cistern-heads, &c. Take up, cleanse, and reinstate all drain-mouths and stench- traps. Repair and reinstate iron doors, shutters, shelves, bearers and frames. Make good all bolts, bars, locks, and other items of ironmongery: and replace lost or defective keys. Reinstate all canvas and papering torn, or so damaged as to be unfit for use. Paint all external wood and iron-work which has not been painted within the last ihree years; make good the painting where damaged by the piecing or repairs of other trades, or where the work has been defaced from any cause. Carry out the preceding specification in respect of all offices, out-buildings, stables, coach-houses, ken- nels, green-houses, hot-houses, summer-houses, boat- houses, &c. And where the premises have been used for any special and particular purpose, as a wharf, or manu- factory, &c., add all such particulars as may occur from the peculiar nature of the premises ; or of the uses to which they have been applied. AGRICULTURAL DILAPIDATIONS. 341 Sect. V . — In Case of a Tenant-for- Life . A TENANT for life of an estate is looked upon by Tenure of a the law in the light of a trustee for that estate ; being entitled to use it for his own proper purposes, but not to do any wilful damage, nor to suffer any damage to accrue from carelessness, or neglect. Under these circumstances a tenant-for-life is His liabiiu bound to transmit to his successors the estate com-^*®®' mitted to his stewardship, without waste, in a state equal at least to that in which he received it ; reason- able wear and tear always excepted. The heir of a tenant-for-life can, therefore, recover similar to damages for dilapidations from the executor, nistrator or other representative of the tenant-for- church pro- life, in the same manner as an incumbent of church property is allowed to recover such damages of his predecessor. To that schedule and specification we, a similar therefore, refer our readers, as altogether appropriate ?hSole"be^ to the present case (c). adopted. At the same time it must be borne in mind, thatDUapi- the damages arising from the negligence or waste ofeyer^mustTe the tenant-for-life, must be real and not ideal ; or insubstantial, other words, substantial, not ornamental {d ) ; other- wise the law will protect the tenant-for-life, who may either not have needed, or may have been in other respects regardless of the refinements of life, or of the requirements of his station in society. Sect. VI. — Agricultural Dilapidations. Agricultural tenancies differ from others only in Peculiarities that they are usually to be interpreted more l^^vour- ably towards the tenant ; since, inasmuch as the land without buildings would be comparatively valueless, those buildings are never separated in agricultural (e) Ante, page 330. {d) Wise V. Metcalfe, 10 B. & C. 299. 342 DILAPIDATIONS. valuations for rent, but included at the highest price of the land, according to the area they cover. Liabilities in In Other respects the liabilities of the tenants are spects^^' same as those already set forth in the preceding sections of this chapter. Effect of At the same time it must be remembered that all local tenancies are more or less specially affected by local custom, which, in the absence of any agreement, allots some repairs to the landlord and others to the tenant ; and which, in some cases, will prove as powerful as any special covenant. Diiapida- Damages arising from neglect, waste, ignorance, or t>ad farming of the land, may be assessed and valued as a portion of the dilapidation in an action for breach of covenant (e). Ornamental No Ornamental repairs are at any ime included in repairs. liabilities of agricultural tenancy. Preceding With these modifications, — and such adaptations, maybe * changes. Or alterations, as may be rendered neces- “Inutatis either by peculiar customs of the locality, or by mutandis.” Special agreement between the parties, — the preceding schedules may with perfect safety be adopted. Sect. VII . — Dilapidations of Fixtures. Every tenant is bound to preserve his landlord’s fixtures in a like ratio with his other property ; therefore, whatever may be the nature of his tenure, it will affect his liability for dilapidations of fixtures, proportionately with his liability for all other dila- pidations. The extent of this liability must therefore be de- termined, first, by the nature of the fixtures, whether (e) It may be as well here to observe, that no action can be maintained against a clerical incumbent for mismanage- ment of the agricultural or glebe land, &c., attached to his benefice. SCHEDULE OF FIXTURES, &C. 343 belonging to the tenant or the landlord ; secondly, by the provisions of the tenancy. The latter of these considerations, and its respec- tive duties, has been already amply detailed, in the preceding part of our treatise on dilapidations. The first has also been set forth in a great degree in the definition of removable and irremovable fix- tures ; but for the purpose of ready reference we repeat it here. Schedule of Fixtures, for Dilapidations of which a Tenant will he generally liable. Additional Buildings. Agricultural Buildings. Ale-house Bar. Barns, substantially affixed {f). Beast-houses. Benches affixed, as in a Tap-room. Binns, and binn divisions of brickwork. Box planted in a garden. Bricks, laid in mortar or cement. Carpenter’s Shop. Cart-houses. Cellar Binns, divisions, and shelves, built of brickwork. Chimney-pieces, original (^). Conservatories. Cornices, substantially affixed, or worked in plaster, cement, or stone, and as accessaries to other work. Cow-sheds. Cucumber Frames, substantially affixed. Dairy-shelves and Pillars of brickwork. Doors. (/)The term “ substantially affixed ” is used throughout this schedule, to imply fixtures for which foundations have been opened, or for the reception of which the freehold whether of soil, or bricks, or wood, or stone, has been broken or cut into ; or, where the fixture is affixed by mortar, cement, cramps, standards, standfasts, or some other permanent setting. {g) That is to say, “ the original chimney-piece.” An original chimney-piece of stone may be replaced by one of marble ; but the tenant must restore the original one in good condition ; or in default of so restoring it, he must leave that which he has put up. 344 DILAPIDATIONS. Schedule. Dressers. Fastenings to gates, &c. Fences, living. Fences, dead, if substantially affixed, as post and rail, &c. Flowers planted, not in pots. Foldyard Walls and Gates. Fruit-trees, standard, planted for other than nursery pur- poses ; or purposes of sale. Fluit-trees trained against a wall. Fuel House. Garden-Frames, substantially affixed. Gibdoors. Glass- windows. Hay-racks. Hearths, both front and back. Hedges. Hen-house. Hinges of doors, not removable. Keys, provided with the premises demised. Latches, ditto Locks, and lock-furniture ditto Machinery, forming a substantial part and parcel of the freehold, as in a corn-mill. Mangers. Millstones. Melon-frames, substantially affixed. Partitions of every kind. Pavements. Pigeon-houses. Piggeries. Pineries, substantially affixed. Pump-houses, or Housings. Racks. Rings. Shutters. * Slabs, necessary to the freehold ; such as the slab in front of the grate, &c. Strawberry-beds. Tower Windmills. Verandahs, substantially affixed. Ventilators. Waggon-houses. Wainscot, substantially affixed. Wells. Well-coverings, or Housings. Windows. And to the foregoing must be added all Fixtures Scheduled in, or otherwise specially reserved by the Lease. INSURANCE. CONTENTS. Chapter I. — Of the Nature of the Contract, and the Parties to it II. — Of the Property Insured, and of its War- ranty and Representation . III. — Of the Risk Insured . IV. — Of the Premium V. — Of Recovery under the Policy . VI. — Of Covenants to Insure VII. — Of Arson . . . . VIII. -*— List of Fire Insurance Companies in England, Wales, Scotland, and Ire- land . . . . PAGE 349 352 355 360 363 369 373 377 V. - R.W.- r > MIVKI-.TWV O’itlH ,v . , ^ ?/ * • * ■'i.' *^; ”?•»•' ■ " ,. .v * , V. - '_’ , ^r**' ■•.,»«-'# .♦* t* :' . k V w j’, »-i ». . ‘ ■ “ rU'l • M MfX- I.r ;■'■ ‘'•**® ' • •■ i''- '■'-^ Vi”'- . ^ »!<• ■ * ' ■’ •• *(vni 'ijIfTi si»-^r -^V'S!^ i :-r^ fv# INSURANCE AGAINST FIRE. CHAPTER I. OF THE NATURE OF THE CONTRACT, AND THE PARTIES TO IT. Fire insurance is a contract by which the insurer. Nature of the in consideration of a certain premium received by him, either in a gross sum, or by annual payments, undertakes to indemnify the insured against all loss or damage which he may sustain in his houses, or other property in buildings, stock, goods, merchan- dize, and profits in trade (a), by fire, during a period of time limited by the policy. The terms of the indemnity are contained in the policy itself, and in certain rules established and acted upon by the insurer, a copy of which is fur- nished to every person at the time of his effecting an insurance : and which are considered as incor- porated in the policy which refers to them, so as to qualify the rights and liabilities of the parties and regulate the conditions of the agreem.ent {b). Insurances against fire are most commonly effected insurance by societies formed for that purpose ; of which there Companies, are many, as well in London (c), as in other cities and towns of the United Kingdom. Each company is governed by certain laws and regulations framed by the members ; which, in some respects, differ ma- terially from each other, both as regards the terms (a) In re Sun Fire Office, 3 N. & M. 819, S. C. nom. In re Wright and Pole, 1 Ad. & E. 621. ip) Worsley v. Wood, 6 T. R. 710 ; 2 Hy Bl. 574. And see also Oldman v. Bewicke, 2 Hy. Bl. 577, n. (c) For a List of these, see the Schedule, post. Chap. VIII. 350 INSURANCE. Who may insure. of insurance, and the mode of dividing profit and loss among the proprietors. These companies are divisible into two great classes, those of which every insured person becomes a member, sharing the pro- fit and loss of the speculation ; and those, in which the insurance is effected entirely at the risk of the society, the insurer having no interest whatever in the affairs of the Company. Of the former class are the Hand-in-Hand, The County, The Farmers, The Imperial, and The Westminster Fire-Offices, for the insurance of goods and buildings; and the Union Fire-Office, for the insurance of goods. Of the latter, the principal are the London and Royal Exchange Assurance Corporations, The Sun, The Phoenix, The Union, The Globe, and The British. As regards the parties insured, there is no restriction whatever beyond that which the policy of the law has imposed in every case of insurance ; namely, that the insured shall be interested in the property sought to be protected. This enactment was passed to prevent insurances being effected by uninterested parties by way of a wagering or gambling transac- tion. Thus, by the 14 Geo. III. c. 48, it is provided : First, ‘‘that no insurance should be made by any person, body politic or corporate, on lives, or any other event, wherein the person for whose benefit or on whose account the policy is made has no interest.” Secondly; that in every policy on lives, or other events, the name of the person interested, or on whose account it is made, must be inserted. Thirdly ; that no greater sum should be recovered, or received from the insurer, than the amount of the interest of the insured.” The word “interest” in the foregoing statute, means pecuniary interest in the event insured(c?) ; and this interest must exist at the time of insuring as well as at the time when the fire happens, in order to en- title the party to recover (e), (rf) Halford v. Kymer, 10 B. & C. 724. (e) Sadlers' Company v. Badcock, 2 Atk. 555. NATURE OF THE CONTRACT. 351 A policy of insurance against fire is not from its Policy not nature assignable, and the interest in it cannot be^^tK?^^ transferred, unless the previous consent of the in- consent, surers be obtained ; and where the insured dies, the interest remains to his heir or personal represent- atives to whom the property insured may respect- ively belong: provided that, before any new payment be made, they procure their right to be indorsed on the policy, or the premium to be paid in their name (/). In order to entitle the plaintiff to recover on a stamp, policy of insurance against fire, it must appear that the policy was duly stamped, according to the pro- visions of the 55 Geo. III. c. 184, schedule, Part I. By the 3 & 4 Wm. IV, c. 23, insurances on farm- ing stock were exempted from stamp-duties. (/) 2 Atk. 554. 352 I CHAPTER II. OF THE PROPERTY INSURED, AND OF ITS WARRANTY AND REPRESENTATION. What maybe The principle of insurance being applicable to every insured. species of risk against the consequences of which it may be thought desirable to provide, will in- clude every kind and class of property liable to be injured by the casualty insured against. Hence, an indemnity I'rom loss by fire may be secured with respect to buildings of all descriptions, goods, mer- chandise, furniture, wearing-apparel, agricultural implements and stock, machinery, and whatever else may be consumed by fire. Besides this, the remoter consequences of the calamity may be provided for ; and the profits of trade may be insured during the rebuilding of premises destroyed by fire, provided they are expressly included in the policy (a). It is a first principle of the law of insurance that when a thing is warranted to be of a particular nature or description, it must be exactly such as it is represented to be, otherwise the policy is void. Thus where a mill was insured as being of one class, and turned out to have been of another, at the time it was insured, it was held, that an action on a policy against a loss by fire could not be sustained, since, whether the misrepresentation was in a material point or not, or whether the risk was equally great in the one class and in the other, was wholly un- important, the only question being whether the build- ing was de facto that which was insured (5). If, however, the mistake or misrepresentation arose from \V arranty and repre- sentation. JIust be cor- rect. (a) In re Sun Fire Office, 3 Nev. & M. 819, S. C. nom. In re Wright and Pole, 1 A. & E. 621. {b) Newcastle Fire Insurance Company v. Macmorran, 3 Dowl. 255. OF THE PROPERTY INSURED. 353 the default of the insurer or his agent, the policy will not be vitiated (c). A very slight variation in the description of the slight errors, property, however, will not be material, if it be substantially correct, — if it makes no difference in the terms of insurance, — and if there be no fraudulent in- tention. Thus if an agricultural building be described as a barn, which is not strictly so, the same premium being required for the building in question as for a barn, the policy will not be vacated (c?). Where a policy was effected on “ stock in trade. Construe- household furniture, linen, wearing-apparel, and^‘°"’ plate,” the party insured not being a linen-draper; this was held not to protect linen-drapery goods, subsequently purchased on speculation ; the word “ linen,” in the policy evidently meaning, from the terms with which it was accompanied, household linen, or linen used by way of apparel (e). It is not only necessary, moreover, that the de- Material scription of the property to be insured should be^^^^®* correct and precise, but there must also be a faithful representation of all material facts by which the terms of the proposed insurance may be affected. Any fraudulent suppression or wilful mis-statement of a circumstance by which the amount of the premium may be determined will utterly vitiate the policy; and too much caution, therefore, cannot be used in conveying to the insurers with a scrupulous fidelity an account of every fact which may ultimately in- fluence their judgment in deciding on the terms on which they are willing to indemnify the insured. Thus, where a person living abroad had two ware-Rufer. Tur- houses, and wrote to this country to effect an insur-°^*^‘ ance upon one of them only, without stating, as was the fact, that a house nearly adjoining it had been on fire on that evening, and that there was danger (c) Newcastle Fire Insurance Company v. Maemorran^ 3 Dowl. 255. (d) Dobson V. Souihby, M. & M. 90, Tenterden, See also 1 R. & M. 92. (e) Watchorn v. Langford, 3 Camp. 422. Ellenborougli. I 3 354 INSURANCE. Friedlander V. London Assurance Company. Doe dem.Pitt r. Laming. of the fire again breaking out; and sent his letter after the regular post-time ; — the fire having broken out again on the day but one next following, and consumed the warehouse in question, the owner was held not entitled to recover, having been guilty of a material concealment, although the letter was written without any fraudulent intention, and the terms of the insurance did not expressly require such a communication (f). Goods insured were described in the policy to be in the dwelling-house of the insured ; the insured having only one room, as a lodger, in which the goods were. This was held a correct description within the condition that “ the houses, buildings, or other places, where goods are deposited and kept, shall be truly and accurately described,” such condition relating to the construction of the house, and not to the interest of the parties in it (g). A coffee-house is not an inn within the meaning of a policy enumerating the trade of an inn-keeper amongst others as doubly hazardous (h). (/) Rufe V. Turner, 2 Marsh. 46 ; 6 Taun. 338. {g) Friedlander v. London Assurance Company, 1 M. & R. 171. Tenterden. (A) Doe dem. Fitt Laming, 4 Camp. 76. Ellenborough. 355 CHAPTER III. OF THE RISK INSURED. If faithful representations have been made to the insurers, and the conditions of the policy have been substantially and bond fide fulfilled by the insured, both parties to the contract of assurance are aware of the risk insured against, and the one will be bound to give, and the other will be entitled to receive compensation for any loss which may be sustained by any casualty included in the policy. But, as we have seen, there must be a correct description of the property insured, and an enumeration of every material circumstance connected therewith, before the policy is effected. Moreover the conditions Conditions of of the policy must be afterwards faithfully complied observeS.'^^ with, in order to render the insurer liable in case of loss. He must always know the risk he insures against ; and therefore if anything occur, through the wilfulness or negligence of the insured, during the currency of the policy, to increase that risk and the insurer remains uninformed of it, he will not be liable for any loss which may accrue subsequently. In order to deprive the insured, however, of the right to recover upon his policy, there must be distinct proof of a breach of the established conditions. Where premises had been insured at a rate of pre- pobaon«. mium charged for those in which no fire is kept and no hazardous goods deposited, the condition was held to refer to the habitual use of fire, and the ordinary deposit of hazardous goods. Therefore, where a policy was effected on an agricultural build- ing, described in the policy as “ a barn, situate in an open field, timber built, and tiled,’' and a loss happened in consequence of the improper lighting ’ of a fire, and bringing a quantity of tar into the 356 INSURANCE. Shaw V. Ro- berts. Whitehead V. Price. Mayall v. Mitford. building, for the purpose of tarring it; the loss was held to be within the policy, the deposit of the tar- barrel for this temporary purpose not being a deposit of hazardous goods within the meaning of the po- licy (a). A fire policy contained the usual conditions of avoidance in case of misrepresentation, or of any alteration in the buildings insured, or in the mode of using them, without notice to the office. A kiln used for drying corn, being part of the premises in- sured, was used on one occasion by the permission of the insured, (who, however, received no remune- ration for the permission), for the purpose of drying bark, — a more dangerous process than that of drying corn. In consequence of the fire kindled for this purpose, the premises were burnt down, and the as- sured was held entitled to recover, although the fire was occasioned by his own negligence, he not hav- ing been guilty of fraud or misrepresentation, nor of any breach of the conditions of the policy, which had reference to some permanent alteration in the mode of employing the buildings, and not to a single instance such as the present ; which did not render necessary any notice to the insurers (b). A policy of insurance on a mill, mill-wright’s work, standing and going gear, engine-house, and steam- engine, recited, “ that the aforesaid buildings were brick-built, warmed by steam, lighted by gas, and worked by the steam-engine above mentioned, in tenure of one firm — standing apart from all other mills, and worked by day only.’’ In an action brought to recover for a loss by fire ; it was held, that this recital did not mean that the steam-engine was not worked by night (c). * In a policy of insurance against fire, upon cotton mills, “ it was warranted that the said mills were (a) Dohsonv. Southby ^ Ors.'M. & M. 90. Tenterden. {b) Shaw V. Roberts, 1 Nev. & P. 279 ; 6 Ad. & E. 75 ; W. W. & D. 94 ; 1 Jur. 6. (c) Whitehead v. Price, 2 C. M. & R. 447 ; 1 Gale 151 ; 5 Tyr. 825. OF THE RISK INSURED. 357 brick-built, and stated that they were warmed and worked by steam, lighted by gas, worked by day only.” It was held, that the stipulation that the mill should be worked by day only, meant that the usual cotton manufacture, carried on by mills in the daytime, should not be carried on at night ; and that it was consequently no breach of this warranty, that on one occasion, in order to turn machinery in an adjacent building, the steam-engine (which was not in the mill, but in an adjoining. building) and cer- tain perpendicular and horizontal shafts in the mill were at work ; and that a plea to a declaration on the above policy, that a certain steam-engine, and certain perpendicular and horizontal shafts, then being respectively parts of the said mills, were, with- out consent of the defendants, worked by night, was bad {d). It would appear from the following case, which to deprive has been very recently decided in the Court of Com- mon Pleas, that no alteration in the mode of using there must the premises, and no introduction of dangerous articles thereon subsequent to the effecting of the insurance, and without notice to the company, would vitiate the policy, if there were no fraud on the part of the assured. Of course it would be a question for the jury to determine in each individual case, how far such increase of risk might take place without any fraudulent intention in the mind of the person in- sured ; and in proportion as the alterations were material and perilous would be the probability of fraud. Birt the time at which they were introduced, and all the circumstances of the case, would require consideration before justice could be done between the parties : but if, ultimately, the jury negatived the chaige of fraud, the assured would be entitled to recover for a loss, although occasioned by the very alterations of which complaint is made (e). A policy of insurance was effected for a year, at Pimm & ^ *' anor. v. Reid {d) Mayall v. Mitfordy 1 Nev. & P. 732 ; 6 Ad. 670 ; W. W. & D. 310. (e) See Shaw v. Roberts, cited above, p. 356. 358 INSURANCE. the expiration of which it was renewable, upon a paper machine, a machine-house, &c. It con- tained the following condition : — “ In the insurance of premises which contain any steam-engine, stove, kiln, or other implement in or by which heat is produced, the construction of the same must be particularly described at the time of effecting the insurance, or, if subsequently introduced, due notice must be given to the company, and the same allowed by them, otherwise the policy would be void ; or if more than a quarter of a hundred weight of gun- pow’der shall be deposited at one time on the pre- mises, the insurance shall be void. In the insurance of goods, wares, or merchandise, the building in which the same are deposited is to be described, the quantity and description of such goods, also^ whether any hazardous trade is carried on, or any hazardous articles deposited therein ; and if any person shall in- surehis goods or buildings, and shall cause the same to be described otherwise than they really are, to the pre- judice of the company, or shall misrepresent or omit to communicate any circumstance which is material to be made known to the company, in order to ena- ble them to judge of the risk they have undertaken, or are required to undertake, such insurance shall be of no effect.” The premises were destroyed by fire within the year. In an action upon the policy ; held, that neither by the common law of insurance, nor by the condition, was the policy vitiated by the circumstance that subsequent to the effecting the policy, but without fraud on the part of the assured, a hazardous trade was carried on, and hazardous arti- cles deposited on the premises, of which no notice was given to the company (/). Torecoveron found a claim under the policy a loss or dam- mus7b?r^ age by fire must occur ; therefore, where a policy is loss by fire. effected “ against loss or damage by fire,” and the Ausunr. register over the fires of the sugar-house, which was usually shut at night to exclude the air, was con- (/) Pimm ^ Anor. v. Reid Ors. 21 L. J. R. 299, C. P. OF THE RISK INSURED. 359 tinued shut on a morning when the fires were lighted, in consequence of which the sugar was much in- jured by the sparks and smoke, but no ignition was produced; it was held not to be a loss within the policy, there having been no actual fire, and the injury being attributable to the mismanagement o the register {g). Had a conflagration ensued, how- ever, it would have afforded no answer to the claim of the insured that the fire was occasioned by the gross neglect of a servant. The insurers are in the habit of qualifying the Exception indemnity which they offer by certain conditions and provisoes introduced into the policy for that purpose, the proper construction of which has been frequently the subject of litigation between the parties, and of doubt and difficulty to the courts. Thus by the terms of several insurance companies it is provided, “ that no loss or damage by fire, happening by any invasion, foreign enemy, or any military or usurped invasion, fo- power whatever, will be made good by the insurer. ” After much argument, it was decided by three judges usurped against one, that the words, “ usurped power,” apply to an invasion of the kingdom by foreign enemies, or an internal armed force in rebellion pretending to assume the power of government. The terms of the proviso do not extend to the acts of a mob riotously assembled ; and therefore, where a malting-house was burned down by a mob at Norwich, which was riot- ously assembled in consequence of the high price of provisions, the loss was held to be within the policy(/i). The Sun Fire-office have used words of more ex- Civil corn- tensive import, including “ civil commotion which was held to apply to an insurrection of the people for the purposes of general mischief : and therefore, where the premises of a distiller were fired by the mob, during the riots of 1780, the loss was held not to be within the policy (z). {g) Austin v. Drew, 2 Marsh. 130 ; 6 Taun. 436 ; 4 Camp. 360; Holt, 126. (Ji) Drinkwater v. London Insurance Compy. 2 Wils. 363. (i) Lang dale V. Mason, Park, 657; Marsh. Ins. 7l)4. 360 CHAPTER IV. OF THE PREMIUM. The premiums on policies of insurance against fire are payable annually, or, in some cases, half-yearly. In the case of an annual policy, however, insurance Fifteen days Companies have been in the habit of allowing fifteen (lays beyond the time limited for the expiration of due. the policies during which the premium may be paid ; and, if accepted, the insurers become liable should any fire occur during that interval. Strictly speak- ing, the policy subsists only so long as the premium is paid ; and the fifteen days allowed after the expi- ration of the time of insurance are a privilege ac- corded to the insured, to protect them from the expense and inconvenience which may arise from But the as- their owii negligence. But the latter are at their their own risk during this interval ; for if any accident risk till pre- happens before the premium is actually paid, they niiumispaid. uninsured. There would be great injustice in putting any other construction on the policy, for then the assured would have the interval to consider whether or not he would insure for the next half- year (or year, as the case might be). If no loss happened during the fifteen days, perhaps he would not insure ; but in the event of a loss during that period, he would insure after it happened. But in order to make persons liable on a contract, both the contracting parties must be bound ; whereas in the case supposed the insurers only would be bound for the fifteen days (a). Shortly after this decision the Royal Exchange, the Phoenix, and some other insurance companies, gave notice that they did (a) Tarleton 8f Others v. Staniforth Sf Anor. 5 T. R. 695 ; 1 B. & P. 471 C. OF .THE PREMIUM. 361 not mean to take advantage of this judgment, but would hold themselves liable for any loss during the fifteen days which are allowed for payment of the renewed premiums upon annual policies, and others for a longer period ; but that every policy for a shorter period than a year, would cease at six o’clock in the evening of the day mentioned therein (b). In truth, the fifteen days are allowed only in case Notice by in- it is intended to renew the policy ; and if the gives notice before or during the fifteen days, that renew the they will not accept the premium, and a loss^°’“^^‘ happens afterwards during the fifteen days, the office is not liable. This was decided in the follow- ing case : — By a policy under seal, referring to certain printed saivin&o«. proposals, a fire-office insured the defendant’s pre mises, from the 11th November, 1802, to the 25th December, 1803, for a certain premium, which was to be paid yearly on each 25th December, and the insurance was to continue so long as the insured should pay the said premium at the said times, and the office should agree to accept it. And by the printed proposals it was stipulated, that the insured should make all future payments annually at the office, within fifteen days after the day limited in the policy, upon forfeiture of the benefit thereof; and that no insurance was to take place till the premium was paid. And by a subsequent advertise- ment (agreed to be taken as a part of the policy^, the office engaged that all persons insured there by policies for a year or more, had been and should be considered as insured for fifteen days beyond the time of the expiration of their policies. It was nevertheless determined, notwithstanding this latter clause, (the assured having, before the expiration of the year, nad notice from the office to pay an in- creased premium for the year ensuing, or otherwise they would not continue the insurance, and the assured having refused to pay such advanced pre- (i) 2 Marsh. Ins. 3rd edn. 800; Park, 7th edn. 661. 362 INSURANCE. Insurers not bound by their agent. Acey V. Fernie. mium), that the office was not liable for a loss which had happened within fifteen days from the expiration of the year for which the insurance was made, though the insured, after the loss and before the fifteen days expired, tendered the full premium which had been demanded. The effect of the whole con- tract, &c., taken altogether, being only to give the assured an option to continue the insurance or not, during fifteen days after the expiration of the year, by paying the premium for the year ensuing, not- withstanding any intervening loss, provided the office had not, before the end of the year, determined the option by giving notice that they would not renew the contract (c). If the premium remaining unpaid during the fifteen days is afterwards paid by the insured to a clerk or agent of the insurers, the latter are not bound by that receipt : therefore where, in an action on a policy of insurance, it appeared that the agent of an insurance company after the expiration of the time limited for the payment of the premium, and without the authority of the company, received the amount ; the court held, that his authority being limited to, receive premiums and not to make contracts for the company, he could not, by such receipt, raise a new contract binding on his principals and revive the policy ; and that an arrangement between the com- pany and the agent, that he should be debited as if the premiums were paid, if he failed in giving notice within the fifteen days, it being only an arrangement for keeping their agents in order, did not enable a third party, the insured, to avail themselves of it as a payment within the original time fixed by the policy {d). (c) Salvin 8f Ors. v. James ^ Ors. 6 East, 571 ; 2 Smith, 646. And see Doe d. Smith v. Shewin, 3 Camp. 134. {d) Acey v. Fernie ^ 7 M. & W. 151. 363 I CHAPTER V. OF RECOVERY UNDER THE POLICY. In order to found a claim under a policy of insu- rance against fire, it is necessary that there should have been a loss or damage by fire ; indeed there must have been actual ignition, as we have seen by the case already cited (a), where the sugar in a manu- factory was greatly injured by excessive heat and smoke, occasioned by the mismanagement of a register ; yet the insured were held not entitled to recover, inasmuch as the damage was not attributa- ble to a fire within the meaning of the policy. In order to prove an insurance from fire at a public Production office in an action on the policy, it must be pro- duced {b) properly stamped according to the provi- sions of the statute, 55 Geo. Ill, c. 184, schedule. Part 1. If it has been lost or destroyed, that fact secondary must be proved before secondary evidence of its contents can be admitted. If it is in the custody of the defendant, notice to produce it should be given ; and on his refusal the plaintiff is allowed to give secondary evidence. The insurance companies in general, reserve to insurers may themselves an option of reinstating the premises, or paying the amount of the insurance-money. And the late Building Act, 14 Geo. III., c. 78, s. 83, em- BufidingAct, powered the governors and directors of the several insurance-offices, upon the request of any persons interested in or entitled to any houses or buildings which might be burned down, demolished, or da- maged by fire ; or upon any grounds of suspicion (a) See p. 358 ; Austin 8f Anor. v. Drew, 6 Taun. 436 ; 2 Marsh. Rep. 130. {b) 3 Stark Ev. 3rd eda. 866. 364 INSURANCE. Alchorne v. Saville. Case of alter- ation of the law relating to regulation of buildings. Effect of the recent build- ing Act, 7 & £ Viet. c. 84. that the owner or occupier, or other person, who has insured, has been guilty of fraud, or of wilfully setting houses or buildings on fire ; to cause the insurance to be laid out and expended as far as the same would go towards rebuilding, reinstating, or repairing the property burned or damaged, — unless the parties claiming the insurance-money, within sixty days after the claim was adj usted, gave sufficient security to the governors or directors of the office, that the in- surance-money should be laid out and expended, or unless the insurance-money should be within that time settled and disposed of amongst the contending parties, to the satisfaction and approbation of the governors and directors. A house, which had been erected before the Build- ing Act, being consumed by fire, the officers of the company with whom it was insured, instead of paying the sum at which it was insured, elected to rebuild the premises ; the Building Act, however, prevented them from re-erecting the house in exactly the same manner in which it was before the fire, and particularly from making ,the site and the building project into the street beyond the line of the adjacent houses : — Held, that the insured were entitled to maintain a bill in equity against the directors for the time being of the insurance company, for a compen- sation for the injury which they had sustained by reason of the inferior value of the premises erected by the insurance-office, instead of the old premises. The amount of the damage, in respect of which compensation is due, to be ascertained by means of an issue (c). This case leads us at once to the consideration of jany similar circumstances arising from the recent alteration of the law by the enactment 7 & 8 Vic. c. 84, commonly known by the name of the Metro- politan Buildings Act ; and already fully noted in a preceding portion of this work. By reference to this Act, {d) it will be seen that a (c) Alchorne v. Saville, 4 L. J. R. Chanc. 47. {d) Section 11, ante, p. 14. OF RECOVERY UNDER THE POLICY. 365 power of modification of its most string:ent regula- tions, is vested in the Commissioners of Woods and Forests, so far as relates to any case of exceeding hardship ; that there is moreover (e) a power given to the Official Referees to interfere in respect of all existing building contracts, and to modify and re- construct them as between parties ; giving a com- pensation to either, as the case may be. This section • would, therefore, at once affect policies of insurance, which are in fact contingent contracts to build. It Iiowever appears to us, looking at the case already cited (/), so pertinently to the point, — that’ no relief will under the New Act be given to in- surers, in consideration of any additional outlay im- posed upon them by that Act, provided that with' such additional outlay the whole sum to be laid out still comes within the limits of the sum insured ; whilst on the other hand, the insured could in any case, only recover the amount of the insurance, and no more. The insurer must therefore elect, either to re-build in accordance with the New Act ; or to pay the full amount of the policy. Under certain circumstances, those who sign a Personal policy of insurance, may make themselves personally liable to the insured in an action of covenant a policy under seal, three of the directors of a fire association admitted the plaintiff as a member of that society, upon the terms and conditions prescribed by the deed of settlement of the association. ; and he subscribed a certain sum as the consideration-money for one year’s insurance ; and it was declared that he should be entitled to a remuneration out of the society’s funds in case of loss by fire happening to any property therein specified, not exceeding the sums set against each article respectively ; and it was further stipulated that neither of the directors who signed the policy, nor the plaintiff, nor the policy. ■Rv Andrews r. Ellison. (e) Section 10, page 12. (/) Alchome v. Saville, 4 L. J. R. Chanc. 47. 366 INSURANCE. Alchorne v. Saville. holder of it, should, as members of the society, be subject or liable to any demand for loss, excepting under the articles establishing the society, and as provided by the same. The plaintiff having sus- tained a loss by fire, brought an action of cove- nant against the directors who signed the policy ; and averred in his declaration, that the funds of the association were sufficient to satisfy the amount of such loss; and the jury found a verdict for him. On an application to arrest the judgment, the court held that the declaration was sufficient, and that the defendants were liable by the terms of the policy (g). In another case, however, the policy was de- cided to be an instrument on which the insured could not maintain an action of covenant, and, con- sequently, neither the executing parties, nor the directors for the time being, were liable at law. Three persons, being trustees and directors of a fire insu- rance association, executed a policy to indemnify and others from loss by fire, whereby they ordered, directed, and appointed the directors for the time being to pay the loss which A. and others should sustain in the event of a fire happening ; and the policy, among other clauses, went on to recite cer- tain provisions containing the words, ‘‘ conditions and agreements and A, and others having sus- tained a loss : it was held, that the policy was not an instrument or agreement upon which an action could be maintained, and, therefore, that neither the executing parties nor the directors for the time being were liable at law (k). Besides an actual loss or damage by fire during the period included in the policy, it is frequently necessary, before the amount of the claim can be recovered against the assurers, to comply with certain terms contained in the proposals of the company, and which (as has been decided) form a part of the contract, when they have been referred to in the (g) Andrews v. Ellison, 6 Moore, 199. And see Severn v. Olive, 6 Moore, 235. (h) Alchorne v. Saville, 6 B. Moo. 202, n. OF RECOVERY UNDER THE POLICY. 367 policy (i). These conditions are binding, although contained in a printed paper without stamp, seal, or signature; provided the deed of insurance refer to them (k). By the proposals of the Phoenix Company, it is Notice of stipulated that “ persons insured shall give notice of the loss forthwith, deliver in an account, and pro- cure a certificate of the minister, churchwardens, and some reputable householders of the parish, im- porting that they knew the character, &c. of the assured, and believe that he really sustained the loss and without fraud. After several arguments it was at last determined, that the procuring of this cer- tificate was a condition precedent to the payment of any loss, and that the fact of its being wrongfully refused is no sufficient excuse for the want of it. The parties to the contract are bound to abide by the terms and conditions of it, according to their true intent and meaning ; and those conditions will not be satisfied by the performance of acts apparently equi- valent, for the insured cannot substitute any other terms in lieu of those agreed to by the policy (/.) But where one of the conditions in a policy of Submission insurance against fire, stated that if any difference should arise on any claim, it should immediately be submitted to arbitration, and after directing how the arbitrators should be chosen, added, that no com- pensation should be payable until after an award determining the amount thereof should be duly made : it was held, that the insured might maintain an action on such policy, notwithstanding the con- dition, where it appeared that the insurers derived the general right of the assured to recover anything, and did not merely question the amount of damage (w). We have before alluded to the proviso in the con- Remedy * where loss is occasioned (») See Worsley v. Wood (in error), 6 T. R. 710 ; 2 Hy. Bl. 574. (k) Routledge v. Burrell^ 1 Hy. Bl. 254, (/) Worsley v. Wood (in error), 6 T. R. 710 ; and see Oldman v. Bewicke^ 2 Hy. Bl. 577, n. {m) Goldstone v. Osborne, 2 C. & P. 550. Best. 368 INSURANCE. ditions of certain insurance companies, protecting them against any demand from the insured in case of loss through “ civil commotion or “ usurped power'' (w). In such cases, although the insured may be unable to recover for the loss against the company, he is not left without remedy, as he may proceed against the Hundred under the statute, and recover full satisfaction for the injury he has sus- tained (o). If the company are compelled to in- demnify the insured for the consequences of public violence or tumult, they, on their part, can recover from the Hundred the amount of the damage by bringing an action in the name of the insured (p). (n) See ante, p. 359. (o) Marsh. 794. (p) Mason v. Sainsbury, 2 Marsh. 794. 369 CHAPTER VI. OF COVENANTS TO INSURE. It is customary in leases of houses, factories, and other buildings, to insert a covenant on the part of the lessee “ to itisure and keep insured the demised Usual cove- premises during the term,” to a given amount of"y"p money. And where the words of the covenant were, “ to insure and keep insured” a given sum of money upon the premises during the term in some sufficient insurance-office, the covenant was held not to be void for uncertainty ; as it meant only that the pre- mises should be insured against fire in some office where insurances against fire are usually effected (a). Where, in compliance with such a covenant, the w hat is a tenant effected an annual policy on the premises with an insurance company in the usual printed form, by which it is declared that the policy shall be for such longer period as the assured shall regularly pay, and the company receive the premium ; and a space of fifteen days beyond the quarter days is given for payment of the premium, during which lime the company is liable ; the year expired on the 25th March, 1811, but the tenant did not pay the pre- mium for a renewal till the 25th April following, and the company then gave a receipt for the premium, stating the insurance to be from Lady-day 1811, to Lady-day 1812; the court held that the covenant was broken by reason of the non-payment of the premium on or before the 9lh April, and that the lease was forfeited on a clause of re-entry (5). But where a lessee covenanted to insure, and whatnot a keep insured, a specified sum of money upon {a) Doe d. Pitt v. Shewin, 3 Camp. 134. Ellenborough. (b) Doe d. Pitt V. Shewin, 3 Camp. 135. 370 INSURANCE. Doe (1. Pitt V. Laming. Extent of tenant’s lia- bility not limited to amount of policy. premises, and accordingly effected such an insurance for a definite time; and the policy contained a memorandum that, in case of the death of the insured, the policy might be continued to his per- sonal representative, provided that an indorsement to that effect were made upon it within three months after his death ; and the lessee having died, the indorsement continuing the policy to his personal representative, was not made till a/fer the expiration of three months from the time of his decease. The court held, that under these circumstances there was no breach of the covenant to keep the premises insured (c). If a tenant covenant to keep the premises in repair, and also to insure them for a specific sum against fire; on their being burned down his liability on the former covenant is not limited to the amount of the sum to be insured under the latter {d). Exception in In many cases an exception of accidents by fire mlg?by the* tempest is introduced into leases for the protection of lessees, but this exception should be inserted into the covenant for the payment of the rent, as well as into the covenant for repairs, in order to exempt the lessee from the obligation of paying the rent, as well as rebuilding, in case the house should be destroyed by fire or tempest (e). Whether CO- Whether a covenant to insure be generally a Iu?e mns covenant which runs with the land, is a question with the land still undecided. Supposing the lease to contain a covenant that the lessee shall insure, and in case of fire pay over the insiirance^money to the lessor, there seems little doubt but such a covenant, giving a double security to the lessor for the rebuilding of the house, must be taken as falling within the defi- nition of a covenant running with the land. But upon the bare covenant to insure, the law presents (c) Doe d. Pitt v. Laming, 4 Camp. 73. Lord Ellen- borough expressed a doubt in this case as to the validity of such a proviso. (d) Dighy v. Atkinson, 4 Camp. 275. (e) See Monk v. Cooper, Strange, 763, S. C. 2 Lord Raym. 1477 ; and Hare v. Groves, 3 Anstr. 687. OF COVENANTS TO INSURE. 371 to the iandlord no means of recovering from the tenant the money he may receive from the insurance- office, whatever equity might do between the parties. Whether tlie covenant to insure runs witli the land On breach of or not, tlie lessor may, on non-performance of it, fes7o"^mly e ID 10 as lie lell ;ed ! ^ ilOD lioa iCfl] issor, living log of [defi* Bui eseols [Ellen- jidityof dR»y®’ enter as for breach of condition^ and oust the assignee of the lessee, even although the lessor has distrained for rent, with knowledge of the breach of covenant, which w’as a waiver of the breach of condition up to the time of distress. But the subsequent non-insur- ^ breach after the time of the distress, and gave a rightof entry forthe forfeiture ( /), and a court of equity will not relieve a tenant against Kqujty win whom the landlord is proceeding to recover the““ demised premises for breach of the covenant to insure {g). But if the lessor by his own conduct induces the Exception, lessee to think he is doing all which is required of him by the lease, retaining the lease in his own hands, and furnishing an imperfect abstract of it, he will not be entitled to recover for breach of the cove- nant (/i). In an action of ejectment brought for not insur- in^ejectmeut ing according to covenant, it lies upon the plaintiffbleach^is on to prove that no insurance has been effiected ; and plaintiff- the circumstance that the defendant refused to show the policy when the plaintiff required him, and the non-production of it at the trial, after notice, are uotprimd facie evidence against him(i). A tenant has no equity to compel his landlord to Landlord jiot spend money received from an insurance-office, on toTebuUd in the demised premises being burnt down, in rebuild- la'voreqmty. ing the premises; nor to restrain the landlord from suing for the rent until the premises are rebuilt (A). (y'l Doe d. Flower v. Peck, 1 B. & Ad. 428. {g) Green v. Bridges, 4 Sim. 96 ; Thompson v. Guyon, 5 Sim. 65. {h) Doe d. Knight v. Tioxoe, Ry. & Moo. 343. And see also Doe d. Pitman v. Sutton, 9 C. & P. 706. Denman. (i) Doe d. Bridger v. Whitehead, 3 Nev. & P. 557 ; 8 Ad. 6 E. 571 ; 1 VV. W. & H. 521 ; 2 Jurist, 493. (k) Leeds v. Cheetham, 1 Sim. 146. k2 372 INSURANCE. Nor will a court of equity grant an injunction to restrain the landlord from bringing an action of eject- ment for breach of the covenant to insure (Z). (0 Reynolds v. Pitt, 19 Vesey, jun. 134. 373 CHAPTER VII. ARSON, The offence of arson is a felony at common law, and At common is defined by Lord Coke to be the malicious and voluntary burning the house of another, by night or by day (a). Upon an indictment for this offence, the prosecutor must prove the burning ; that the house was the house of another ; and that the offence was committed voluntarily and maliciously. The several offences of burning houses and other By statute, property are now, however, provided against by various statutes recently passed. By the? Wm. IV. and 1 Viet. c. 89, repealing the 7 & 8 Geo. IV. c. 30, it is enacted (s. 2,) “ that whoever shall unlawfully and maliciously set fire to any dwelling-house, any person being therein, shall be guilty of felony ; and being convicted thereof, shall suffer death.” This sentence may be recorded under a provision in a former Act of Parliament {b). By the second section of the act above cited it is Buildings, enacted, that “ whosoever shall unlawfully and ma- liciously set fire to any church or chapel, or to any chapel for the religious worship of persons dissenting from the united church of England and Ireland ; or shall unlawfully and maliciously set fire to any house, stable, coach-house, out-house, warehouse, office, shop, mill, malt-house, hopoast, barn or granary, or to any building or erection used in carrying on any trade or manufacture, or any branch thereof, whether the same or any of them respectively shall then be in the possession of the offender or in the possession of any other person, with intent thereby to injure or (fl) .3 Inst. 66 ; 1 Hale P. C. 566. {b) 4 Geo. IV. c. 48, s. 1. If 374 INSURANCE. defraud any person, shall be guilty of felony, and being convicted thereof, shall be liable, at the dis- cretion of the court, to be transported beyond the seas for the term of the natural life of such offender, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years.” Proof requi- Upou an indictment framed under this statute, port indict- prosecutor must prove (in addition to the firing “ent. of the property, and that the property set fire to comes within the meaning of the statute and the de- scription given in the indictment) the intent to injure or defraud the party mentioned in the indictment. Upon this subject the law was luminously expounded by Lord Chief Justice Tindal, in his charge to the Grand Jury, at Bristol : “ Where,” he says, “ the Malice. Statute directs, that to complete the offence, it must have been done with intent to injure or defraud some person, there is no occasion that either malice or ill- will should subsist against the person whose pro- perty is so destroyed. It is a malicious act in con- templation of law, when a man wilfully does that which is illegal, and its necessary consequence must injure his neighbour ; and it is unnecessary to observe that the setting fire to another’s house, whether the owner be a stranger to the prisoner, or a person against whom he had a former grudge, must be equally injurious to him : nor will it be necessary to prove that the house, which forms the subject of the indictment in any particular case, was that which was actually set on fire by the prisoner. It will be sufficient to constitute the offence, if he is shown to have feloniously set on fire another liouse, from which the flames communicated to the rest. No man can shelter himself from punishment on the ground that the mischief he committed was wider in its consequences than he originally intended” (c). Thus, where a man was indicted for setting fire to a mill with intent to injure the occupier thereof, and it appeared from the prosecutor’s evidence that the (c) 5 C. & P. 266 (n). OF ARSON. 375 prisoner was an inoffensive man, and never had any quarrel with the occupier, and that there was no known motive for committing- the act, and he was convicted ; the judges held the conviction right, for that a party who does an act wilfully, necessarily intends that which must be the consequence of his act {d). Where the intent laid is to defraud insurers, the insurance must be proved. For this purpose the policy must be produced, the books of an insurance company not being admissible evidence until the absence of the policy is satisfactorily accounted for (e). The policy must be properly stamped {/), By the 7 Will. IV. and 1 Viet. c. 89, s. 10, “ who- stacks, crops, soever shall unlawfully and maliciously set fire to^^‘ any stack of corn, grain, pulse, tares, straw, haulm, stubble, furze, heath, fern, hay, turf, peat, coals, charcoal, or wood, or any steer of wood, shall be guilty of felony, and being convicted thereof, shall be liable, at the discretion of the court, to be trans- ported beyond the seas for the term of the natural life of such offender, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years.” By the 7 & 8* Geo. IV. c. 30, s. 17, it is made felony to set fire to any crops, whether standing or cut down, and is punishable with transportation for seven years, or imprisonment not exceeding two years, with whipping once, twice, or thrice, at the discretion of the court (g). Other Acts of Parliament have been passed to punish the offence of setting fire to ships of war and merchant vessels ; but these provisions do not fall within the scope of this treatise. It may be right, however, to allude to the (d ) Farrington's Case, Russ, and Ry. C. C. 207 ; Philp's firing of pro- Casei 1 Moo. C. C. 273. P" (e) Doran's Case, 1 Esp. 127. {f) Gieson's Case, Russ. & Ry. C. C. 138 ; 2 Leach 1007 ; 1 Taun. 95. (g) For further information on this subject, see Ros. Cr. Ev. 2nd edn. pp. 244-257. 376 INSURANCE. which has been attached to the negligent burning of houses, and other property. By statutes 6 Anne, c. 31, and 14 Geo. III. c. 78, s. 84, “ if any menial or other servant, through negligence or carelessness, shall fire, or cause to be tired, any dwelling-house or out-house, or houses or other buildings, and be con- victed thereof, by oath of one witness before two justices, he shall forfeit 100/. to the churchwardens, to be distributed amongst the sufferers by such fire ; and if he should not pay the same immediately on demand of the churchwardens, he shall be committed by the justices to some workhouse, or common gaol, or house of correction, for eighteen months, there to be kept to hard labour.” If this enactment was more frequently enforced, it might, possibly, have the effect which the legislature contemplated in framing it, — that of inducing greater caution on the part of domestic servants, through whose gross and criminal neglect and indiscretion the large majority of conflagrations are occasioned. Insurance com- panies, especially, might find it their interest to pro- secute to conviction in certain flagrant instances, by way of example to those whose vigilance can only be stimulated by the perils of fine and imprisonment. 377 CHAPTER VIII. LIST OF FIRE INSURANCE COMPANIES IN ENGLAND, WALES, SCOTLAND, AND IRELAND. ENGLAND AND WALES. TOWN. Alliance Atlas British Church of England County English and Scotch Farmers’ Globe Guardian Hand-in-Hand Imperial Licensed Victuallers’ London Phoenix Protestant Dissenters’ Royal Exchange Sun Union Westminster COUNTRY. Birmingham Bristol Union District Birmingham Essex Economic Essex and Suffolk Hants, Sussex, and Dorset Kent Leeds and Yorkshire Leicestershire Liverpool Manchester Newcastle-upon-Tyne Norwich Equitable Norwich Union Nottingham and Derbyshire Salop Sheffield Shropshire and North Wales Suffolk Amicable West of England Winchester, Hants, and South of England Yorkshire SCOTLAND. Aberdeen Assurance Com- pany Caledonian Insurance Com- pany County and City of Perth In- surance Company Forfarshire and Perthshire Insurance Company Friendly Insurance Company Hercules Insurance Company Insurance Company of Scot- land National Insurance Company North British Insurance Com- pany North of Scotland Assurance Company Scottish Union Insurance Company K 3 378 INSURANCE. IRELAND. Aberdeen Alliance Atlas British and Irish County Church of England English and Scottish Law Farmers’ and General Globe Imperial Liverpool London Corporation London Union Manchester National North British North of Scotland Norwich Union Patriotic Phoenix Royal Exchange Scotland Scottish Union Sun West of England ACTIONS ON BUILDERS’ BILLS. ACTIONS ON BUILDERS’ BILLS. Two main causes unite to produce frequent d is- chief causes pules relative to builders’ bills. Of these, the chief is^etweeS^^* to be found in that continual struggle of competition, employers which, pervading every trade, causes the employer to beat down the builder below a fair price, — whilst on the other hand it induces the contractor to keep in the back-ground many items which must eventually come forward. The other is the natural consequence of those accidents and chances at- tendant upon all building transactions, which makes the slightest deviation from the original plan, the source of many heavy, — and we must add frequently groundless — charges by the contractor, under the head of “ extras.” A third, but comparatively insignificant source of contention is to be found in the Architect’s specifica- tion. To any person who will consider for one moment the multitude of provisions to be made in the erection even of an ordinary dwelling-house, — the intricacy of their nature, and the almost trifling minutiae of their arrangement,— it cannot for a mo- ment appear extraordinary that some few items should escape his notice. Indeed the wonder would seem rather to be that so many are carefully re- membered, than that a few should be forgotten. From which soever of these causes disputes between the contractor and his employer originate, their nature is almost invariably the same,— they are points of construction not matters of fact. In other words, the question at issue is not one of workmanship, nor of 382 ACTIONS ON BUILDERS* BILLS. price, but whether the subject of extra claim forms a part of the contract or not. All specifications have a schedule of conditions annexed, which after alluding to the completion of the works, payment of the money, &c., usually contain a clause to the following effect : “ and also, that if the description of anything necessary to complete the said works according to the design expressed in the drawings, or in the foregoing spe- cification, or to be understood by fair inference therefrom, be omitted in the said specification or drawings, the contractor shall take no advantage of such omission or omissions, but shall supply whatever may be needed to complete the whole without any additional charge.” It is evident to the dispassionate reader of such a condition as this, that it is intended to supply any trifling omissions on the part of the architect; such omissions being actually necessary to complete work directly specified to be performed ; but, as we have already stated — it is on this point that the disputes turn, and with reference to their several readings of this clause the contending parties usually join issue. Much however of this old-fashioned disputation has been avoided by the modern method of practice adopted in the contracting for any public or private building of more than ordinary dimensions, or in the erection of which such questions are likely to arise. In such cases two surveyors are appointed, one on behalf of the architect, the other on behalf of the builder ; and these surveyors conjointly forma bill of quantities of work to be done. The work having been executed, the same surveyors — having pre- viously named a referee in case of questions arising as to quantities or price — proceed to measure the extra work not provided in the contract ; and accord- ing to their report, or that of the referee in case of a difference between them, the builder’s bill is settled. It may be said that this course of proceeding does not shut out the great source of contention; viz.. ACTIONS ON builders’ BILLS. 383 the construction of the conditions ; at the same time it must be obvious that it so contracts its limits as to leave but little room for litigation, where parties are really anxious to avoid it. It must be also borne in mind that builders’ bills are more usually made matters of reference than of law, and this will account for the paucity of recorded cases on the subject. On perusal of the New Build- ing Act, (7 & 8 Viet. c. 84) given in the first part of this work, it will be seen that all questions relative to the building of party-walls are submitted to the final jurisdiction of the official referees appointed by the Act. The judges, too, have almost uniformly adopted the practice of submitting such subjects to a reference, even when brought into court — and in this they have exercised a wise discretion, since the technicalities and intricacies of building are utterly unintelligible to the most erudite of juries. With these few preliminary observations we pro- ceed to the consideration of our subject : Where there has been no special contract entered where there into between the parties, an action of assumpsit^ or of debt for work done and materials found, will lie at the suit of the contractor to recover the value of the works he has executed, on an implied contract by the defendant to pay for them. In such case the plaintiff will have to prove that the work was done at the request of the defendant, and to give satisfactory evidence as to the value. But it is an ancient and undoubted rule of law, Action must that where persons have made an express contract none can be implied (a). The terms of the agree- when there ment prescribe the duties and liabilities of the re-**®"®’ spective parties, and their remedy must be sought on the instrument wherein they have thought fit to embody the nature and terms of the stipulation. Hence, so long as a special contract exists, the work not being complete, no action of indebitatus as- sumpsit on an implied contract can be maintained, (a) Per Lord Kenyon in Cutter v. Powell, 6 T. R. 324. 384 ACTIONS ON builders' BILLS. Unless the works are completed. Contract need not be in Writing- Production of agree- ment, duly stamped, ne- cessary on trial. even although the plaintiff seek to recover for extras, and the defendant lias admitted one item to be an extra (5). The case is different where an oral order is given for other work during the continuance of the first employment (c). Where deviations from the original contract have been made, by consent, in the course of the work, it still remains binding so far as it can be traced ; and the plaintiff may re- cover on a quantum meruit for the additional work id). But where works, executed under a special con- tract, have been quite completed, and accepted by the defendant, the plaintiff will be allowed to recover in an action of indebitatus assumpsit ; if the agree- ment were not under seal, and was for payment in money ; for where the conditions of an agreement have been performed, a duty is raised for which a general count will lie (e). A contract to build, alter, or repair a house, &c., and to provide materials for the purpose, need not be in writing, unless it is not to be performed within a year. For it is not in law a contract for the sale of goods, even as regards the materials ; but an entire contract for work and materials (f). Where however the terms of the contract have been reduced to writing, the writing must be pro- duced, duly stamped, on the trial of the cause. And this, although the action be not brought on the agreement itself, or to recover for work done in pur- suance of it, but for extras, or work done beyond, and independently of the contract. In such a case the plaintiff was nonsuited, on its appearing upon the cross-examination of his witnesses that the written instrument, which was in court, was un- (b) Vincent v. Cole, M. & M. 257. (c) Reid V. Bates, M. & M. 413. {d) Robson v. Godfrey, 1 Stark. C. 275 ; Pepper v. Bur- land, Peake's C. 103 ; Burn v. Miller, 4 Taun. 745. (e) Gordon v. Martin, Fitz. 302 ; B. N. P. 139. If) Chitty on Contracts, 566 ; 3d edn. ACTIONS ON builders’ BILLS. 385 stamped ; the court holding it to be material in such an action to put in evidence the original written agreement, both for the purpose of ascertaining the rate at which the work was to be paid for, and es- tablishing the fact that the items sought to be reco- vered as extras were not included in the contract {g). So, where it appeared on the trial of an action for Though the work and labour, that the work was done during the not don? progress of, but separate from some other work which "“der it. the plaintiff was doing under a written contract, and which had been paid for ; the court held, that the written contract ought nevertheless to be pro- duced {h). So strict is the rule requiring the production of the agreement, that where it is necessary to the plaintiff’s case that the agreement should be pro- duced, and it turns out that it cannot be read in evidence for want of a stamp, he will be precluded from recovering the value of the work and labour to which the agreement refers, although the defendant has had the benefit of it (t). So, where the plaintiff had been employed by, and performed certain work for the defendant, under a written agreement, and subsequently claimed for work done but not included in it; it was held, that in order to dispense with the production of such agreement, he must prove an employment by the defendant, altogether distinct and separate ; and it is not sufficient to show that such employment came within the description of extra work {k). The party with whom the contract was originally who may made b, usually, the person to sue upon it; except®'^®' in certain cases where the employer has consented that a third person should do the work, the contract {g) Vincent v. Cole, 1 M. & M. 257 ; 3 C. & P. 481. See also Fielder v. Ray, 6 Bing. 336 ; and Jones v. Howell, 4 Dowl. 176. (A) Holbard v. Stevens, 5 Jur. 71. (i) Hughes v. Budd, 8 Dowl. 478. {k) Parton v. Cole, 6 Jur. 370. 386 ACTIONS ON builders’ BILLS. having been previously assigned to him by the ori- ginal undertaker (/). Common No aclion can be maintained on a quantum meruit^ so long as the special agreement under which the work was done remains open ; but for extras it may (m). Before the new rules H.T. 4. W. IV. prohibiting two counts on the same transaction, it was decided that, “ If a man declare upon a special agreement, and likewise upon a quantum meruit, and at the trial prove a special agreement, but different from what is laid, he cannot recover on either count; not on the first, because of the variance, — nor on the second, because there was a special agreement; but if he prove a special agreement, and the work done, but not pursuant to such agreement, he shall recover upon the quantum meruit ; for otherwise he would not be able to recover at all ” (n). But this must be understood of cases where the defendant, notwith- standing the defect of performance, has not rescinded the contract in toto ; for performance is a condition precedent to the claim for payment. Therefore, where a builder undertakes a work of specified dimensions and with specified materials, and deviates from the specification, he cannot recover upon a quantum valebat for the work, labour, and materials (o). Nor should the plaintiff, in opening, his case, rely entirely on a quantum meruit, when there is a special contract existing to which he may find it necessary to resort. Therefore where a plaintiff declared in assumpsit for work and labour, proved the value of the work done, and relied wholly on the quantum meruit couni \ and the defendant proved that the plaintiff agreed to do the work for a certain sum ; (/) Oldfield V. Lowe, Hil. T., 9 & 10. Geo. IV., cited Peake's Add. C. 12, note ; and 9 B. & C. 73 S. C. (m) Rees v. Lines, 8 C. & P. 126. (n) Bui. N. P. 2nd ed. 139 ; cited by Sir Jas. Mansfield in Cooke V. Munstone, 1 N. R. 355. (o) Ellis V. Hamlyn, 3 Taun. 52. ACTIONS ON BUILDERS BILLS. 387 on the plaintiff’s counsel proposing to show that she was to be paid that sum if the work did not exceed a specified quantity, but that if it did, she was to he paid accordingly, the court stopped him, saying that the plaintiff should have relied on the contract in the first instance, and that it should have been stated by her counsel in opening the case to the jury (p). Where an entire contract has been entered into Work, la- for work and labour, and for materials to be supplied, and the work has been completed under it, the plaintiff may recover the whole on the several general counts, (for work and labour and materials found) which are applicable to the several parts of the con- tract ; but where the contract is to build a house, he cannot recover for the materials supplied, on a count for goods sold and delivered ; although, by reason of a deviation from the original plan, the contract has been superseded as to price (^). Nor can the value of materials be recovered under a count for work and labour only (?’). This common count for work and labour cannot be supported where the labour was bestowed upon the materials of the plaintiff", in making a chattel which never became the defendant’s property ; for until the completion and acceptance of the article, the plaintiff might have appropriated the produce of his labour and materials to any other person, and could, therefore, have no right of action against the defendant. But if the labour have been bestowed on the defendant’s materials, and at his request, the plaintiff may maintain an action to recover the value thereof; for he could not appropriate the produce of his own labour on your materials to any other per- son (s). So, if the work is to be done under the superintendence of a person appointed by the de- fendant, and to be paid for by instalments, the pro- (;;) Soulby v. Pickford, 2 M. & P. 545. (q) Cottrell v. Apsey, 6 Taun. 322. (r) Heath v. Freeland, 1 M. & W. 543 ; 2 Gale, 140 ; 5 Dowl. 100. is) Atkinson v. Bell, 8 B. & C. 277 ; 2 M. & R. 292. 388 ACTIONS ON builders’ BILLS. Right to re- cover. Work con- tracted for must be com- pleted. perty in tlie produce of the labour and materials ! passes to the defendant, on their being put to the fabric, with the approval of his appointee ; or, at all f events, as soon as the first instalment is paid (t). Where there has been a specific contract to do certain work for a specified sum, the work agreed upon must be done before any action will lie to recover for any portion of it; unless the plaintiff have been prevented or excused from completing the contract by the defendant ; or the latter has accepted the incomplete portion, or the work has become illegal or impossible. Therefore, upon an entire contract to repair a damaged chandelier, and make it complete for £10, an action will not lie for work done and materials provided, in effecting a partial repair, although such repair was beneficial to the defendant, and consisted partly in a supply of fresh materials, which the j plaintiff had not demanded back (m). j Where the first count of a declaration was on a i special agreement, for the plaintiff to build a house for the defendant at an agreed price, and it stated that the plaintiff had bestowed work on the house, and that the defendant abandoned the contract, and hindered the plaintiff from completing it ; and the ! second count was for goods sold ; and the defendant ! pleaded //om assumpsit, and that he did not abandon I the contract, nor hinder the plaintiff from com- pleting the house ; the particulars of demand being for work and materials under the agreement : the court held, that if the defendant had not hindered the plaintiff from completing the contract, the latter | could only recover for extras not included in it ; and j that the defendant having said that he would never pay a farthing, was no proof that he had aban- doned the contract, because he was not then liable {t) Woods V. Russell, 5 B. & Aid. 946 ; Clarke v. Spence, 4 A. & E. 448 ; Laidler v. Burlinson, 2 M. & W. 602 ; and see Chitty on Cont. 379-383 ; 3rd edn. (m) Sinclair v. Bowles, 4 M. & R. 1 ; 9 B. & C. 92. See also Parmeter v. Burrell, 3 C. & P. 144. 389 ACTIONS ON builders’ BILLS. to pay anything, the work not having been com- pleted (a;). If, however, there be not an express contract to Exception, complete the work before any remuneration shall be due, — as in the case of a shipwright undertaking, according to the custom of that class of workmen, to put a ship in repair, — the workman may, after he has done some of the work, refuse to continue it unless he is paid for the part already performed, and may recover to that extent {y). Nor will the refusal of a workman to deliver work which he has performed, except on payment of a large and exorbitant sum of money, preclude him from suing for and recovering a reasonable price(z). Neither will the destruction of work by accidental work de- fire, or otherwise, before it is finished or delivered, deprive the workman of his right to remuneration for what he had already done (a) ; unless there be an express and uniform custom in the trade that no payment is to be made unless the work be completed and delivered (6). To guard against casualties during the progress of extensive works, it is usual (and always important) to make the contractor insure until the contract is complete. “ Notwithstanding the universality of the position that performance, when it is the consideration for the payment of the stipulated price, is a condition precedent, yet the conduct of the employer in adopting the contract, when, if he disputed the per- formance, he had it in his power to rescind it in toto, by placing the parties in statu quo, aflPords, as against him, a conclusive presumption that the work has been properly executed, or, at all events, ex- cludes the party acquiescing from taking the objec- tion.” Hence it is the duty of the person for whom (.r) Rees v. Lines, 8 C. & P. 126, Coleridge. (y) Roberts v. Havelock, 3 B. & Ad. 404. {z) Hughes V. Lenny, 5 M. & W. 183. (a) Menetone v. Athawse, 3 Burr. 1592. (J) Gillett V. Mawman, 1 Taun. 137 ; and see Adlard v. Booth, 7 C. & P. 108. 390 ACTIONS ON builders’ BILLS. Breach of the contract waived by defendant. Subsequent implied pro- mise. work has been done under a contract, if dissatisfied with the character and quality of it, to put an end to the contract at once, by declining the article, or otherwise; and thus placing the parties in the same situation as before the contract was entered into. But in the case of building contracts this is, almost always, impossible. If a wall or a house has been built on the defendant’s premises it is impracticable for him, however defective the work, to rescind the contract in toto. In such cases, although the de- fendant has partially availed himself of the plaintiff’s labour, and the materials supplied by him, yet in consequence of the imperfection of the work, the plaintiff can only recover on a quantum meruit for the labour, and a quantum valebant for the mate- rials, to the amount of the benefit actually de- rived (c). So, where the agreement has not been strictly complied with, but the defendant has waived the breach, the plaintiff may recover the value of his labour and materials. Therefore, where the plaintiff contracted to build some cottages by the 10th of October, but they were not finished until the 15th, and the defendant after that day accepted them ; the plaintiff was held entitled to recover the value of his work on a count for work and labour; the failure being on a point which did not go to the whole consideration, and the defendant having had the benefit of the work {d). Again, where a lessor contracted to pay his tenant at a valuation for certain erections pursuant to a plan to be agreed on, provided they were completed in two months, and, after the condition was broken, the lessor encouraged the lessee to proceed with the work ; the latter was permitted to recover as for w'ork and labour, on an implied promise arising out of so many of the facts as were applicable to the new agreement (e). (c) Stark. Ev. p. 1308, 3rd. edn. {(i) Lucas V. Godwin, 3 Bing. N. C. 737 ; 4 Sc. 502, S'. C. (e) Burn v. Miller, 4 Taun. 745. ACTIONS ON builders’ BILLS. 391 In building contracts it is not unusual to insert a Certificate of provision that nothing shall be paid either during the progress of the works, or at their completion, unless the certificate of approval of the surveyor or architect be first obtained. In such cases, the ob- taining of this certificate is a condition precedent to the right to recover and cannot be dispensed with. Therefore, where the plaintiff contracted with the defendants to excavate, break and cart, a certain quantity of ballast, to be afterwards screened to the satisfaction of the defendants’ engineer, for a certain price ; and on the trial of an action to recover for work done under this contract, there was no evi- dence that the screening was to the satisfaction of the defendants’ engineer; on which the judge told the jury that, if the ballast was not screened to the engineer’s satisfaction, they should find for the de- fendants, and the jury, nevertheless, found for the plaintift', the court afterwards granted a new trial (/). Therefore where in a building contract, it was pro- condition vided that the contract should not be vacated hy any additions or alterations, but that the price to be paid for such alterations should be settled by a sur- veyor, who was to be sole arbitrator in settling such price, and all disputes arising in or about the pre- mises : and the defendant (the employer) agreed to pay certain proportions of the contract price upon receiving a certificate in writing, signed by the surveyor, testifying that certain portions of the build- ing had been done, and his approval thereof, and the balance that should be found due, after deduct- ino- the previous payments, within two months after receiving the surveyor’s certificate, that the whole of the works had been completed to his satisfaction ; it was held, that the surveyor’s certificate was acondition precedent to the plaintiff’s right to sue upon the con- tract in respect of alterations, nor did the builder’s charges checked by the surveyor, and by him for- warcfed to the defendant, amount to such certificate so as to give the plaintiff a right of action, although (/) Parkes\. Great Western Railway Company, 6 Jur. 628. 392 ACTIONS ON builders’ BILLS. the defendant had not objected to pay on tlie ground that no sufficient certificate had been rendered {g). But where the plaintiff became tenant to the de- fendant of certain premises at the yearly rent of £250, and by the agreement it was stipulated that the tenant should make certain alterations, and do certain repairs within the first year, to an amount not less than £200, such repairs, &c., “ to be in- spected and approved of” by the landlord, and “ to be done in a substantial manner.” And it was agreed that the tenant should be allowed the sum of £200 towards such repairs, &c., and should be at liberty to retain the same out of the first year’s rent of the premises; it was held, that the landlord’s ap- proval was not a condition precedent to the tenant’s right to retain the £200, and that if it were, it was performed, he having done the repairs (to the satis- faction of the jury) in a “ substantial manner” (A). Butobjec- The objection, nevertheless, must be taken by the tion must be (lefei^tjant at the proper time and in the proper laTen.^^L the manner ; for the court will not afterwards interfere trial. benefit of it, by granting a new trial, {g) Morgan v. Birnie, 3 M. & Sc. 76 ; 9 Bing. 672. See] also Worsleyv, Wood, 6 T. R, 710 ; and Bradley v. Milnes, 1 Bing. N. C. 644 ; 1 Scott, 626, 697. (/<) Dallman v. King, 5 Scott, 382; 4 Bing. N. C. 105, S. C. \ or entering a nonsuit. Hence, where in an action brought on an agreement to pay money for work to be done, on the production of the certificate of a third person that he approved the work, (the decla- ration also having the common counts) the plaintiff produced on the trial a bill of charges for work done, which had been submitted to such third person (who, it was proved, had attended the progress of the work) under which he had written and signed the followingmemorandum : “ On examiningtheannexed bill, and considering the circumstances of the case referred to me, I am of opinion that a reduction should be made of £12 11s. Qd . but that person’s being afterwards called as a witness for the defen-: dant, stated, that he never had approved the work,^ J ( ACTIONS ON builders’ BILLS. 393 but disapproved it, and would not have signed a certificate of approval; and the jury, on the whole case, found for the plaintiff; the court afterwards refused to grant the application for a new trial, on the ground that the action could not be maintained without proof of such certificate ; saying, that the defendant should have asked at the trial of the cause for leave to move to enter a nonsuit (^). The general principles on which a contractor, per- Extras, forming work under a special agreement, and for a fixed price, shall be allow’ed to recover the value of any additional work which may be ordered during the progress of the undertaking have been laid down in a recent case by Lord Tenterden, C. J. (/). The action was brought to recover the amount of a carpenter’s bill, for alterations in the house of the defendant. The work having been originally under- taken on a contract for a fixed sum, alterations were subsequently made on which the plaintiff claimed to abandon the contract, and recover a measuring value price for the work actually done. The original contract was for £62 10s.; there was some entirely new work done under a separate contract for £10; and there were considerable alterations and departures from the original plan, which, by the usual evidence, it was shown that the defendant had seen and had not objected to, and, in some cases that he had expressly approved of them. Among these were the alteration and enlargement of a win- dow, which were proved to have occasioned an in- creased expence of £5. The defendant had paid £82 in ail. The plaintiff’s witnesses stated the value f the whole work to be £140 ; the defendant’s wit- esses estimated it below the sum actually paid. The hief Justice, in summing up to the jury, observed hat the case, although very common in its circum- tances, involved a very important principle, and equired their very serious consideration. “In this (k) De Vile v. Arnold, 10 Price, 21. (/) Lovelock V. King, 1 M. & Rob. 60. L* 394 ACTIONS ON BUILDERS BILLS. case, as in most others of the kind, the work was originally undertaken on a contract for a fixed sum. A person intending to make alterations of this nature generally consults the person whom he intends to employ, and ascertains from him the expense of the undertaking; and it will very frequently depend on this estimate whether he proceeds or not. It is there- fore a great hardship upon him, if he is to lose the protection of this estimate, unless he fully under- stands tliat such consequences will follow, and assents to them. In many cases he will be completely ig- norant whether the particular alterations suggested will produce any increase of labour and expenditure ; and I do not think that the mere fact of assenting to them ought to deprive him of the protection of his con- tract. Sometimes, indeed, the nature of the alterations will be such that he cannot fail to be aware that they must increase the expense, and cannot therefore sup- pose that they are to be done for the contract price. But where the departures from the original scheme are not of that character, I think the jury would do wisely in considering that a party does not abandon the security of his contract by consenting that such alterations shall be made, unless he is also informed at the time of the consent, that the effect of the alteration will be to increase the expense of the work. In the present case, it is not pretended that any such caution was given ; and it does not appear to me that any of the alterations, except that of the win- dow (the additional costs of which the money paid is enough to cover) were of such a nature as neces^ sarily to import an increase of expense. The ques- tion, however, is entirely for the jury; and it is of: great importance, from the frequency of such cases, that they should adopt a correct principle in its .v decision.” — The verdict was found for the defen- jJ dant. I A still more obvious inference from the principles! above laid down is drawn in the following case: — A I person contracted to make an article of certain ma- j terials for a certain stipulated price; but he usedj I I 1 f c ti SI w w sti tui ( ( (< 0 ACTIONS ON builders’ BILLS. 395 materials of a belter quality than those agreed upon, and thereupon claimed a larger sum than was stipu- lated, or required to have the article returned to him : the court held, that he was precluded by the terms of his agreement from demanding more than the contract price ; nor could he be permitted to claim a return of the article on the purchaser objecting to pay a larger amount (m). Where work is done under a special contract, and for estimated prices, and there is a deviation from the original plan by the consent of the parties, the esti- mate is not excluded, but forms the rule of payment so far as the special contract can be traced ; and for any excess beyond it, the party is entitled to his quantum meruit (?«). But if a man contract to work by a certain plan, and for a fixed sum, and that plan be so entirely abandoned that it is impos- sible to trace the contract, and say to which part of the work it can be applied ; in that case the work- man will be permitted to charge for the whole work done by measuring value, as if no such contract had been made (o). It is customary to insert a clause in the contract ; (providing that any deviations or alterations shall not vitiate nor render the contract void, but that the value of such variations shall be estimated by a person appointed by the parties (usually the architect or surveyor), and the amount thereof either added to or deducted from the amount of the contract as ■|Jthe case may be. But this provision will not justify uch a flagrant departure from the specification, as ould entirely and altogether vary the nature of the ork (p). Where there has been no specific agreement or value : tipulated price, and the plaintiff’ sues upon a TpSc" m meruit, to recover the value of work done, ihecoutraci. (m) Wilmot v. Smith, 3 C. & P. 453. Tenterden. )* (n) Robson v. Godfrey, Holt, 236 ; 1 Stark 275. Gibbs. .\| (o) Pepper v. Burland, Peake’s R. 103 ; Lord Kenyon, ffll I {p) Rex V. Peto, 1 Y. & J. 37. 396 ACTIONS ON BUILDERS BILLS. amount of the remuneration is a question for the jury to decide. If any custom exists as to the amount, it will be presumed that the parties con- . tracted with a reference to it, and the usual charges will be used as a guide in estimating the dama- ges (^y). And where the plaintiff declares on a quantum meruit for work and labour done, and materials found, the defendant may reduce the damages by showing that the work was improperly done, and may entitle himself to a verdict by showing that it was wholly inadequate to answer the purpose for which it was intended (r). Where a tradesman finishes work differently from the specification agreed on, he is not entitled to the actual value of the work, but only to the agreed price, minus such a sum as it would take to complete it according to the specification (5). So, where a party contracted to supply and erect a warm-air apparatus for a certain sum ; it was held, in an action for the price (the defence to which was, that the apparatus did not answer), that, if the jury thought it was substantial in the main, tliough not quite so complete as it might be under the con- tract, and could be made good at a reasonable rate, the proper course would be to find a verdict for the plaintiff, deducting such a sum from the amount of the claim as would enable the defendant to do what was requisite (^). Where a Although a certain price has been agreed for, yet helfn agreed incumbent on the plaintiff to show that his work on. was properly done according to the contract, if that be disputed, in order to prove that he is entitled to I his reward ; otherwise he has not performed that which he undertook and the consideration fails, even, as it seems, although no notice has been given {q) Stark. Ev. 1307, note (a), 3rd edn. (r) Farnsworth v. Garrard, 1 Camp. 38. Ellenborough. \s) Thornton v. Place, 1 M. & Rob. 218. Parke. (0 Cutler V. Close, 5 C. & P. 337. Tindal. ACTIONS ON builders’ BILLS. 397 that his performance of the contract is to be dis- ^ puted (m). I “ In strictness, wherever there lias been a special Defence. contract, the terms of which have not been complied General , with, the plaintiff can have no rig:ht to recover 1 all, not having done that which he undertook; if^a^rhas^Ilot he contracts to build a dwelling-house, he has right to recover for building a stable. But still, if wuh. the defendant be benefited to a certain extent, and does not repudiate the contract in toto, it seems to be a rule of policy and convenience, as well as of equity and justice, that the plaintiff should be allowed to recover to the extent of the benefit de- rived by the defendant, and no further. It would be hard upon the plaintiff to preclude him from reco- vering at all, because he had failed in part of his entire undertaking ; it would be equally so upon the ( defendant to compel him to pay the whole sum when i he had received but a partial benefit, and to oblige t him to seek his remedy by across action ” (x). I The words of Mr. Justice Le Blanc, in giving Plaintiff to judgment in the case of Basten v. Butter, above j cited, are also to the same effect. He says in work when^^ :! either case (i. e. whether a specific sum be or be not' ^ stipulated for) the plaintiff must be prepared to show •' that his work was properly done ; if a man contracted • with another to build him a house for a certain sum, it surely would not be sufficient for the plaintiff to ^ show that he had put together such a quantity of I, bricks and timber in the shape of a house, if it could be shown that it fell down the next day ; but he * ought to be prepared to show that he had done the ^ stipulated work according to his contract ; and it is open to the defendant to prove that it was executed in such ?. manner as to be of no value at all to him” {y). I ; (m) Basten v. Butter, 7 East, 479. See Judgments of ' i Lawrence and Le Blanc, Justices. {x) Stark. Ev. p. 1209,3rd edn. 398 ACTIONS ON BUILDERS BILLS. The plaintiff, therefore, must come into court prepared to prove that he has faithfully fulfilled his contract, as well in respect of the quality of the materials and workmanship, as in the elevation, di- mensions, and character of the fabric. work has been done under contract and for file'vaiue^or a stipidated price, and the defendant means to dispute j j P the goodness or value of the work or materials, it is when nec’es^ usual and proper to give notice of his intention to ’ the plaintiff; though not, perhaps, absolutely neces- j sary. “ Where, however, the plaintiff declares on a quantum meruit, and there has been no stipulation as to price, such notice is clearly unnecessary ; the de- fence can be no surprise upon him, since he must i come prepared to show the value of the work done. Where a particular price has been agreed for, the plaintiff may have greater reason to complain of surprise, if evidence of this kind be insisted on ; for otherwise he may not be prepared to prove more than the agreement and the work done, and therefore such notice should be given ”( 2 ). Insufficiency The insufficient and improper execution of the be shovvii"^^ work is, therefore, an available defence in an action nmierthe to rccover the stipulated price; and it only remains genera issue ^ defence may be given under the general issue. In Cousins v. Paddon (a) the decla- ration was on a special contract, for work to be done at a fixed price, consisting of the common counts in ^ ( debt on simple contract for work and labour, to which the defendant pleaded that he never was in- j debted ; and it was held, that he was not precluded ; f by the new rules of pleading, H. T. 4 W. IV. Nos. 1 r and 2, from setting up as a defence under that plea, ^ that the work was done in an improper manner. Or that the We have already seen that where a specific con- | f( work was tract Iias not been performed, a plaintiff cannot re- done under a i. ■’ r contract not t’ultilled. {z) Stark. Ev. p. 1210, 3rd edn. ' {a) 5 Tyr. 535 ; 2 C. M. & R. 547; 4 Dowl. 488 ; 1 Gale, ' 305, and see Baillie v. Kell, 4 Bing. N. C. 638. ! ACTIONS ON builders’ BILLS. 399 cover on it on a generaH«c?e6i7«^MS count; therefore a defendant, under the plea of non-assumpsit or nunquam indebitatus, may show that tlie work was done under a specific contract, and that the con- tract was not performed. But where the plaintiff is entitled to recover quantum meruit, the above pleas of the general issue to such a count put in issue only the quantum of the value ; and if no value has been given, the plaintiff is not entitled even to a nominal sum (6). In an action on a special contract for work done or done im- under the contract, and for work, labour, and ma- terials generally, the defendant may give in evidence under the general issue, that the work has been done improperly, and not agreeably to the contract; and the plaintiff in that case will only be entitled to re- cover the real value of the work done and the ma- terials supplied (c). The defendant may also entitle himself to a ver- dict by showing that the work has been so impro- perly and insufficiently performed as to be totally inadequate to the purpose for which it was intended : hence, having derived no benefit, he cannot be called upon for any remuneration {d). Where the plaintiff had contracted to find the set-off. labour and materials for completing some specified work, and he neglected to procure certain portions of the materials, which the defendant therefore sup- plied, and paid for; it was held, that unless the plaintiff had assented to the deduction of the price from his demand, the defendant should plead the money so paid as a set-off, and not rely only on the general issue (e). But where a plaintiff sues on a quantum meruit for work and labour, the defendant may, without {b) Cousins v. Paddon, supra. (c) Chapel v. Hickes, 2 C. & M. 214 ; 4 Tyr. 43. {d) Farnsworth v. Garrard, 1 Camp. 38 ; see also supra, p. 396 ; Allen v. Cameron, 1 C. & M. 832. (c) Allinson v. Davies, Peake’s Addl. Ca. 82. I I I 400 actions on builders bills. pleading a set-off, give in evidence that he provided [he plamliff’s men, who did the work, with beer ; as it m[y be that the plaintiff deserves to be paid the lesT because his men had their beer provided for them by the defendant AlthLgh the bad quality and insufficiency of the work be a good ground for reducing the amount of the demand, even where a specific sum has been a'.!i'Jk.-‘..' :',^> -':5-'^^'' .i A GLOSSARY OF TECHNICAL TERMS, PECULIAR TO BUILDING. GLOSSARY. Abacus. — The uppermost member of the capital of a column, a ; and an essential item in the classic orders. The architrave rests on the Abacus . — See Column. Abutment, or Butment. — In ma- sonry, or brickwork, that solid part of a pier or wall from which an arch springs, or against which it abuts . — See Arch. In carpentry, the cerm sig- nifies the point of junction of two pieces of timber. Achelor. — See Ashlar. Acuminated. — Terminating in a point. An expression generally applied to any spire or pinnacle finished plain, without any ornament at the top. Air-Brick. — A small iron boxed grating — in size and form similar to a brick — inserted in walls, for the purpose of admit- ting a free ventilation under the floors. Alcove. — Properly, a recess ; — but in England the term is fre- quently used to denote a summer-house, or covered seat in a garden, &c. Alto-relievo. — Sculptured work, standing very fully out from the back-ground, but not wholly (although it may be par- tially) detached from it . — See Basso-Relievo. 408 GLOSSARY. Ancones. — Ornaments supporting the cornices of Ionic doorways, or win- dows ; and called also consoles, or trusses. AxVGLE brace, or Angle- tie. — A timber intro- duced across the angles of roof-plates, in order to tie them together, and into which the dragon-piece, [a timber used for the reception of the hip-rafter] is framed. — S'ccDragon- piece. Thus a, are the wall-plates ; b, the angle-brace ; e, the dra- gon-piece. Angle of Repose. — In masonry, that angle (generally of about 32 degrees) in an arch, at which the bricks first begin to slip, or round off towards its crown; and therefore varying in its situation according to the peculiar character of the arch. — See Arch. Angle-tie. — In carpentry, a tie of wood or iron fastening the angles of roof-plates together . — See Angle-brace. Ant.(E. — A species of pilasters or flat columns, used in the Greek and Roman Orders to terminate the faces of side-walls, when they project beyond the end walls. In modern archi- tecture they occur most frequently in the building of porches and porticoes . — See Pilaster. i Arch. — A form of construction by which the weight over any GLOSSARY. 409 opening is thrown upon lateral abutments. The component parts of an arch are as follows : — The Piers, a; Spandrils, b\ Voussoirs, c; and Key- stone, d. Its accessary details consist of, — the Abutment, e; Springing, y; Sommering Lines, ; Angle of Re- pose; Haunches; Crown; Extrados ; and Intrados. The width between the piers is called the Span. Arch-buttress, or Flying-buttress. — A buttress, standing out from the wall, which it supports by means of an arch. This buttress is chiefly used in Ecclesiastical architecture. Architrave. — The lowest member of an entablature, [see Column,] resting immediately upon the abacus . — See Aba- cus. Also, the ornamental mouldings running along the square openings of doors or windows. Archivolt. — The mouldings running round the curved face of 410 GLOSSARY. an arched opening. — See Architrave. This term occurs most frequently in allusion to Gothic architecture. Arris. — Any angle which, not having been rounded off, retains its original sharpness. Arris Rails, — Rails cut so as to present a projecting angle and two oblique surfaces to the eye. Ashlar, or Ashler. — Ma- sonry worked fair, and set in regular courses. When houses are built of brick and faced with stone, the word ashlar is generally used to designate such facing. Ashlering, or Ashlining. — The lining of the lower sides of a room formed in a span-roof, and frequently brought forward into such room, away from the walls, in the manner of a partition. Ashlining. — See Ashlering. Astragal. — A moulding rounded on the face like an ankle-bone, whence (Astragalus) it derives its name. This moulding is very frequently used in compound ; as in the case of Astragal and Hollow. — A mould- ing which is best explained by the accompanying illustration ; in which a is the astragal, and b the hollow. Atlantes. — Male figures used instead of columns, to support entablatures, &c. This name is peculiar to Greek architec- ture ; by the Romans they were called Telamones. Caryatides are female figures of the same description, and adapted to the same purpose. Back. — In Carpentry, the upper edge of a rafter. — See Roof. In Ironmongery that portion of a stove which rests against the wall at the back of the fire-place. In Joinery, the centre portion of a window recess ; — the sides being termed el- bows. Backing, or Bracketting. — Slips of wood fixed against rough walls, to facilitate the attaching of the wooden finishings. Back-filletting. — See Grounds. GLOSSARY. 411 Backflaps. — Those parts of interior window-shutters, which fold back into the side boxings Boxings], so as to retire out of sight. Backfolds. — See Backflaps. Back-puttying. — In glazing, the finishing of the puttying on the contrary side to that on which the glass is put in. Back-slab, or Back-hearth. — See Slab. Balk, or Baulk. — A square piece of timber, before it is sawn up for use. This term is also sometimes used to designate the hori- zontal beams (whether tie-beams or collars) in an open roof. Ball, or Ball-flower. — An ornament usually inserted at inter- vals in a hollow moulding. Baluster, vulgo Banister. — A small pillar, used either in balustrades for ornament, in lieu of close parapets ; — or to support the hand-rail by the sides of stairs . — See Stair- case. Band. — A thin square projection, intended for ornament. The term is also frequently applied to any continuous line of or- nament in low relief, running round a building. Bandelette. — A small band. Barge-board, Parge-board, Berge-board, or Verge- board. — A board, more or less ornamental, aflSxed to the gable of a roof so as to hide the ends of the horizontal tim- bers, and protect them from the weather. Barrel-curb, or Well-curb. — In well-sinking, an open cylin- der of horizontal circular ribs, (usually of elm) set round with upright spars of deal, about four feet in length; designed to keep the well perpendicular and cy- lindrically true during the pro- gress of sinking. As the well increases in depth the barrel-curb de- scends, the sides being made good with brickwork above, • until the required depth having been attained, the open spaces between the ribs of the barrel-curb are filled in with brickwork, and it remains to form the foundation of the well. 412 GLOSSARY. Barrel Drain. — A drain which is circular in its section. Base. — The lowest part of a pillar or wall. In a column, that part between the shaft, and the ground on which the shaft stands . — See Column. Basement. — The lowest story or floor of any building. Although this term is commonly applied only to that portion of a house which is wholly or partly under ground, — in an architectural sense it implies that lowest story or compartment of any design, which, whether it be above or below the ground-line, serves as a base for the superstructure or main feature of the composition. Basemouldings. — Those mouldings which rest immediately upon any plinth. Basso-relievo. — Sculptured work projecting less than half its full proportion from the back-ground, or plain surface. When the projection is one-half, it is called Mezzo-relievo ; when more than one-half. Alto-relievo. Bat. — In bricklaying, any portion of a broken brick. Batting, unde Batted. — The fixing of iron railing or standards into stone steps, curb, &c., by running melted lead around them into mortises, or holes cut in the stone for their re- ception. Battening. — Strips of wood fixed vertically to the bond timbers in walls, at regular intervals, for the purpose of receiving either the laths for plastering, or the canvas for papering, as the case may be. Battens. — Deal cuttings used for battening, — usually about 1 inch in thickness, and from 2 to 3 inches wide, and placed at intervals of about 12 inches. Battens form the foundation (according to circumstances) for laths and plaster, canvas and paper, and the slating on roofs. This term is also applied generally to fir stuff, sawn of such dimensions as may be adapted to the purposes above mentioned. GLOSSARY. 413 Batter, unde Battering. — A wall is said to “ batter ” when it slopes inwards from the base : to “ overhang,” when it slopes outwards. Bay. — A term which assumes several meanings, according to its context. In a groined roof, ceiling, or arch, it denotes any one of the spaces contained between the principal divisions. In the framing of a roof, it designates the space between two trusses. — See Roof. In a wall, it alludes to any division comprised between two buttresses. In a window composed of several compartments or “ lights,” it means any one of those ” lights ” (also called ” days ”). The word Bay is also frequently used synonymously with the word Compart- ment, to signify any division or part of a whole. Bay-window or Bow-window, also called Compass-window. — A projecting window on the ground story. An Oriel win- dow is a projecting window on an upper, (usually the first) floor. All projecting windows are colloquially termed ” bow- windows ;” but a bow-window, strictly speaking, must be semicircular, or at least curvilinear, in form : whilst a bay- window may be polygonal in form, but must be straight- sided. Bead. — A rounded moulding, similar in form to, but smaller than the astragal. Beaded. — Worked with a bead moulding. The term is also used in allusion to any thing fixed in its place by means of a beading. Thus, a window is said to be ” beaded in,” when the small rounded moulding which confines it to its place is fastened up. Bead-and-batten. — A compound term in carpentry, used to denote a rough style of work, composed of mere batten-stuff [^ee Batten] edged with ahead. Bead-butt. — A compound term in joinery, applied to shutters, doors, &c., framed with flush panels, and having a bead on the vertical sides of the panels only. Bead-butt and SauARE. — A e compound term in joinery, applied to bead-butt work, when the panels are even with the framing on one side only : the other presenting a square sinking. In the accompanying illustration, a, is the style or uprights of the framing ; the panel ; c, the bead on the front edge of the panel ; and d, the square back of the panel. 414 GLOSSARY. Bead-flush. — A compound term in joinery, applied to framing, in contradistinction to the preceding. The difference being, that in this case the head, a a, is worked on the framing^ so as to surround the panels; whilst, in the other, it was worked on the panels , and only in the direction of the grain. Beam. — A general name applied in carpentry to the several parts of a frame-work, according to their particular use. — For the details of these see the appropriate headings, as Tie-beam, Collar-beam, &c. Bearers. — Pieces of timberstuff which support the gutter- boarding behind a parapet, or between two roofs. Bed, Bedding, Bedded. — A stone or brick is said to be “bedded” in the mortar or cement in which it is laid. When it is pressed down solid, and the face of the bed or joint finished off neatly with the trowel, it is said to be “ pointed." Bedmould. — That portion of a cornice which is below the corona. Bell-trap. — A trap in the form of a bell, usually from 3 to 6 inches in diameter, fixed over the inlets to drains, so as to prevent the escape of the effluvia. It is also called a Stench- trap. Belt. — A synonyme for String-course. — See String-course. Belvedere. — A story built out above the roof, (most appropriate to Italian architecture) for the purpose of obtaining a view of the surrounding country. Bevel, a slope ; unde Bevelled, sloped off. Bevelled Grounds. — See Grounds. Bilection, or Bolection Moulding. — A projecting moulding on framing ; such as is seen round the panels of the best sort of entrance-doors, &c. Bilget. — A wooden Brick . — See Wood-brick. GLOSSARY. 415 Binder, or Binding Joist. — See Joist. Bird’s-mouth. — In carpentry, a triangular notch cut in either end of sloping timbers, to enable them to fit properly into the square timbers from which they rise, or against which they abut. In bricklaying, the term implies a similar notch cut in a brick, to adapt it to any upright, or irregular angle. Blinding. — In paving ; the filling up of interstices. Blocks, unde Blocked. — In joinery, small pieces of wood fixed behind skirting, to keep it away from the wall. Generally speaking, any small pieces of wood fixed out of sight for the purpose of strengthening the work, are termed blocks. Blocking-course. — A plain course of stone, surmounting a main cornice. Block-cornice, or Blocked-cornice. — A cornice having sup- porting blocks, as a, a, a. Bond. — Long timbers built into walls, for the purpose of equaliz- ing their inclination to settle. Bonders, Bond-stones, Binding-stones, Through-stones, or Perpent-stones. — In masonry, stones running through the work, so as to hold it firmly together. Bonded.— -S'ee English Bond. Border Slates, or Verge Slates. — Those slates which lie next to the brickwork. Bow-window.— /S ec Bay-window. Boxings, unde Boxed.— I n joinery, a term applied to the recesses for receiving sliding shutters. Bowtells, or Bottels.— T he shafts of a clustered column or pillar. Brace. — A piece of timber placed diagonally in a framed parti- tion, to increase its strength . — See Partition. 416 GLOSSARY. Bracketting. — See Backing. Brad, unde Bradded. — A nail without a head. Breaking-joint. — Bricks, tiles, &c. laid in such a manner that the joints of one line come into the middle of another, are said to be laid “ with a breaking-joint.” Breast-tree. — A horizontal rail. Bressummer, Brestsummer, or Breastsummer. — A beam of wood or iron laid over any large opening in a wall, to support the superincumbent weight. Thus for, example, the beam over a shop front is called “ the bressummer.” Brick-dressings, unde Brick-dressed. — Masonry is said to have brick-dressings, when bricks are laid at all the angles. Brick-nogging. — B ricks laid flat or edgeways between the quar- • tering (or timbers) of framed partitions. Brick-trimmer. — A brick arch, built to support any hearth, stove, &c. Bridging-joists. — See Joists. Broach. — See Spit. Broaching, unde Broached. — In masonry, picking or rough dressing with a pointed hammer or chisel. Built-in-the-heart. — A phrase applied to walls, as signifying “ well filled up in the centre work.” Bull’s-eye. — A circular opening. Butment. — See Abutment. Butts. — A common description of hinges, fixed on the edge of doors, shutters, &c., and fre- quently termed ” edge-hinges.’' Butt. — A term frequently applied to mouldings in compound. — See Bead and Butt, &c. Buttress. — A projection built against the face of a wall, in order to give it additional strength. Byre. — A provincial term (northern) for ” Cowhouse.” GLOSSARY. 417 Cabers. — The laths on which thatching is laid. Camber. BEAM. — A beam terminating the upper part of any truss. See Roof. Cantalevers, Cantilevers, or Cantelevers. — Supports projecting at right angles from a wall, and usually employed to carry a balcony, &c. Canted. — Bevelled . — See Bevel. Capital. — The head of a column . — See Column. Capping, unde Capped. See Coping. Caulking. — In carpentry, the fastening down one timber into another by means of a notch, a,fittingon to a caulk- ing, A. Ceiling-joist. — See Joist. Cement Filletting. — A nar- row band of cement placed in lieu of lead-flashing [see Flashing] at the exterior points of junction of plates with the wall, &c., so as to pro- tect those points from the weather. Centre-point. — A term in ironmongery, applied to gate or other hinges working either way. Centering. — The temporary timber framing upon which anarch is built. Chain-plate. — Long timbers let into a wall, to receive the ends of the floor-joists. Champhered, or Chamfered. — Canted . — See Canted. Channel, unde Channelling. — A groove, or furrow, worked on the face of masonry. Chase, or Chasing, unde Chased. — A sinking or cutting in masonry or brickwork, for the reception of other work. Checked, or Chacked. — Fitted with a notch ; the term “checked down on ” signifies “ fitted into with notches," — as in caulk- ing.— See Caulking. Chimed. — Let into. Chimney-bar. — An iron bar which supports the Chimney-breast, or front side of the flue. The several com- M* 418 GLOSSAUY. ponent parts of a chimney are as follows ; — a, the breast ; the jambs ; c, the neck ; the flue; e, the back ; y, the wall. Chimney- Shaft. — That portion of a chimney which appears above the roof. CiLL . — See Sill. Clamped. — A term applied to a table-top, or any similar piece of joiner’s work having narrow pieces crossing the grain, so as to give strength and prevent warping ; such pieces being fixed by the method usually called “groove and tongue” — See Groove and Tongue. Clamp-burned. — A term applied to bricks burned in an inferior kiln, and not regularly set up. Cleaded. — In carpentry — clothed, or covered in. Clustered Column, — A column composed of several shafts clustered together. Cob. — A mixture of unbunied clay and straw ; sometimes used for building cottage walls, &c. Coffer-work. — In masonry, a term applied to walls built by the erection of two faces connected together at intervals by bond-stones, and having the space between them filled-in with rubble, concrete, or rough stones cemented together. Cogged. — Notched. Coins, or Quoins. — The corners or angles of a building. CoLLARBEAM. — See RooF. Colonnade. — A covered walk, having an open range of columns on one or both sides. GLOSSARY. 419 Column. — The principal part of an architectural order or arrangement, principally divided into Pedestal, Column, andENTABLATURE; which are again subdivided as follows : — The Pedestal into Plinth, Dado, and Surbase : the Column into Base, Shaft, and Capital: — and the Entablature into Archi- trave, Frieze, and Cornice. Each of these several parts is com- posed of various mouldings, plain or enriched, — deriving their names from their respective forms or situ- ation. Compass Roof. — More commonly called a Span Roof : a roof spanning or extending from one main wall to the other, and sloping both ways — this term is more especially used in con- tradistinction to a Lean-to Roof, which slopes one way only, and rests principally on one wall ; and to a Pavilion Roof, which slopes all four ways. Concrete. — A compound of large gravel, sharp sand and used to form an artificial foundation, where the ground defective to receive a building. Console. — See Ancone. lime ; is too Coping, or Capping. — The covering of a wall. The term Cap- ping is sometimes used for Coping, but it more properly belongs to joinery, in which trade it signifies the top covering or coping of low partitions, &c. Corbel. — A projection of stone or timber, thrown out from the face of a wall, as at a, for the purpose either of giving additional stability to some beam ; or of sup- porting: some superin- cumbent weight. Corbel-coins. — Project- ing corner - stones, placed at the feet of a gable, for the purpose of receiving the ends of the eaves-gutters. M 2 420 GLOSSARY Cornice. — A moulded projec- tion forming the crowning or finishing member of an architectural order. The principal component parts of a cornice are the bed- mould, fl, the corona, b, and the cymatium, c. Coring, unde Cored. — See Pargetting. Corona. — See Cornice. Corrugated. — Waving, wrin- kled, or fluted. Countess-slating. — See Slates. Couples, or Coupling, alias Cupples, or Cuppling, principal rafters. — See Roof. Course. — A single range or line of bricks or stones, in brickwork, or masonry. Cradling. — The timberwork which sustains the lath and plaster of vaulted ceilings — or the entablature of a shop front, &c. Cramps. — Copper or iron clasps, employed to tie masonry toge- ther. Crippled. — Imperfect. A wall is said to be crippled when it is out of the upright — a cornice, when the lines do not carry straight all through. Crook. — An iron hook. Cross-brace. — See Roof. Cross-tie stones. — A synonymefor Bond-stones. — See Bond- stone. Crown-glass. — A term applied to colourless window-glass — to distinguish it from green, blue, or other coloured glass. Crown. — The vertex or highest point in the opening of an arch — See Arch. CuNiFORM. — shaped like a wedge. Cupples. — See Couples. Curb. — In masonry, a continuous line of rectangular stone blocks. Curbed. — A roof is said to be “ curbed” when the walls are not carried up on all sides to the full height of the ceiling. Currented. — Laid on a slope sufficient to carry off water. glossary. 421 Dado.-A component part of the pedestal of a column.-See Column Also, that part of the wall of a room whieh lies between the chair-rail and the skirting. Day. — See Bay. Dealkeys, or Strutting Pieces— Pieces of stout deal board, ' driven in on a line with each other, between joists ; in order to stiffen the floor. Dentels, or Dentils.— Small square blocks in the Cedmould of Ionic Cornices. Discharging Arch.— A semicircular arch formed in the body ot a wal , so as to relieve the part immediately below from the weight above. This arch is most generally used over flat openings. Door. — The component parts of a door and its dressings are as follows : a, Styles ; b, Bottom- rail; c, L ock-rail; d, Top-rail; e, Middle- styles ; f, Panels ; ff, Architrave. Door Sole. — A provincial term for a door-sill or Threshold. Dormer-window. — A win- dow projecting forwards from the sloping side of a roof. Dot. — In plumber’s work, a stud or broad -headed tack. Dome. — A term used to signify a form of covering-arch, in con- tradistinction to the vault; a vault being continuou.s, whilst a dome is isolated, and independent, and generally of a cir- cular form. Dowel. — A wooden plug driven into the joints of masonry or brickwork, so as to form a hold for the wooden finishings. DaAUGHiED,or Droved. — In masonry, worked smooth round the joints with a chisel. This term is generally used in com- pound, as Draughted and Broached, or Draughted and ScABBLED — signifying stone work picked rough on the face, (Broached, or Scabbled), and worked even at the joints (Draughted). Dressed. — In masonry, worked fair with a hammer or chisel. 422 GLOSSARY. Drip. — See Hood Moulding. Dutch Barn. — A building framed with posts and a roof, but left open on all sides. Eaves. — That portion of a roof which overhangs the walls. Elbows. — In carpentry, iron straps formed thus also called Knees, and used for the purpose of securing partitions, &c. to the ground by screws. In joinery. — See Back. Elbow Buckets. — In a waterwheel, bucket-boards framed at an angle, instead of straight, as is more usual. English-bond. — A term applied to brickwork to designate that mode of brick-laying which consists of alternate courses [see Course] of headers and stretchers, (bricks placed length- ways with the wall are called stretchers, those laid across the wall, headers,) and used in contradistinction to Flemish-bond, which consists of headers and stretchers, laid alternately in the same course. Entablature. — That primary part of an architectural order which rests upon the column. — See Column. An entabla- ture properly consists of three divisions — viz. The Archi- trave, which rests immediately upon the abacus [see Abacus] of the column ; — the Frieze, or central space ; — and the Cornice, or compound of projecting mouldings. — See Cornice. Entresol, or Mezzanine Story. — A small story intervening between the ground and first floors of a building. Extrados. — The exterior curve of an arch. — See Arch. Fall (of land). — A term used in land measuring, to signify 30 square yards. Facia or Fascia. — A fillet or band, of a height disproportioned to its projection. Featheredged. — Worked thin at one edge. Ferrol. — In plumber's work, a brass tube introduced at the junction of a lead service-pipe with the main water-pipe. Fillet. — A small flat face or band dividing the various mouldings of a cornice, &c. Filletting of Cement. — See Cement Filletting. Finial. — The carved ornament crowning any spire or pinnacle. Fir-keys. — A synonyme for deal-keys. — See Dealkeys. Fir up, or Fur. — A carpenter is said to Fur up a timber when, by means of affixing small slips of w'ood or Furrings, he brings it t