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![handle is hein.slavery/ssactsengr0274 and id is 1 raw text is: ROBERTS V. BRETT
to put an implied qualification upon the act of parliament, without some necessity.
The right to pull down and repair any party-structure is applicable, in my opinion, to
a case where one person is the owner [610] of the two adjoining premises. We have
no right to cut down the operation of the statute to a case where there are two owners
only. There is no strong ground of reason or convenience to warrant us in so doing.
On the contrary, reason and convenience seem to point the other way.
WATSON, B. I am of the same opinion. If we were to adopt the construction con-
tended for, it would be taking out of the act of parliament all cases where the owner
of two adjoining premises occupied one of them himself and let the other to a tenant
from year to year.
HILL, J. It is admitted that this is a party-wall; and it is found as a fact that it
was out of repair, and that the defendant repaired it. There is nothing to shew that
anything was done beyond what was necessary for doing the repairs. No negligence
or improper delay was shewn, or any violation of the Metropolitan Building Act. The
defendant is not, I think, a trespasser, for want of giving notice to the district-
surveyor: nor is he so, in my opinion, for want of the notice required to be given to the
adjoining owner. The attention of the legislature was directed to the interests of the
adjoining owner and building owner. The only provision in favor of the tenant is,
that the person who has to do the repairs is to do them in such a manner and at such a
time as not to cause unnecessary inconvenience to the adjoining owner: s. 85, clause 3.
Where there is an adjoining owner, he might waive the necessity of the three months'
notice, and give his consent to the repairs being done at once. If he does so, his
tenant would have no action of case or trespass against the building owner, if the
repairs are done properly. Here the adjoining owner and build-[611]-ing owner is the
same person, viz. the defendant. He could not be required to give notice to himself
Trespass, therefore, will not lie: but an action, I think, might nevertheless have been
maintained, had there been any negligence or improper delay.
Judgment affirmed.
ROBERTS v. BRETT. May 16th, 1859.
(Affirmed in House of Lords, 6 C. B. N. S. 611; 11 H. L. C. 337;
11 E. R. 1363 (with note).]
By an indenture of the 15th of May, 1855, the plaintiff covenanted that he would
forthwith, at his own expense, procure a suitable vessel, and stow on board a certain
telegraphic cable then at Morden's Wharf, and would rig, fit out, &c., the said ship,
and would have her fully equipped at the NIore, ready for sea, on or before the
15th of July then next, and proceed forthwith to Cape T., and there lay down the
cable &c. And the defendant covenanted to pay the defendant 50001. by certain
instalments, viz. 10001. on or before the expiration of seven days after the arrival
of the vessel alongside Morden's Wharf, 20001. on or before the expiration of
twenty-one days after the vessel should have arrived alongside Morden's Wharf,
and 20001. when and so soon as the ship should put to sea from the Nore: And
it was thereby agreed and declared, that, for the true performance of the covenants
by the plaintiff (and the defendant respectively) thereinbefore contained, &c., the
plaintiff (and the defendant) should, within ten days from the execution of these
presents, give and execute to the defendant (or the plaintiff), &c., a bond in the
penal sum of 50001. : -Held, that the giving of the bond by the plaintiff to the
defendant was a condition precedent to his right to sue the defendant for a breach
of his contract in refusing to allow the plaintiff to stow the cable on board a
suitable vessel.
Error from the court of Common Pleas : see 17 C. B. 534, and 18 C. B. 561. Since
the argument of the demurrer, the declaration was amended by striking out the second
breach, and adding the words in italics at p. 618.
The declaration stated, that, by a certain indenture made between the plaintiff of
the one part, and the defendant of the other part, and bearing date the 15th of May,
1855, he the plaintiff, for the considerations therein mentioned, for himself, his heirs,
executors, and administrators, covenanted with the defendant, his executors and
6 C. B. (N. S.) 610.](ViewImageLocal?handle=hein.slavery/ssactsengr0274&div=1&collection=&method=preview&ext=.png&size=3)