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![handle is hein.slavery/ssactsengr0242 and id is 1 raw text is: 447
STAVERS V. CURLING
But the Defendant contends that, admitting the pleas to be bad, the Plaintiffs have
shewn no sufficient ground of action either in the first or second count of their
declaration.
The first count rests upon a precise and distinct allegation, that the vault or cellar
of the Plaintiffs was, of right, supported by parts of the adjoining walls, and that the
Plaintiffs were, of right, entitled to have them so supported, and that there were
certain foundations for supporting those vaults which the Plaintiffs ought to enjoy:
and the count then proceeds to allege, as part of the gravamen, that the Defendant
wrongfully dug the earth, and disturbed the foundations, without taking due and
proper precautions to prevent the foundations from being weakened. And we think,
without entering into the examination of the several cases cited by the Plaintiffs, this
count contains a clear and substantial ground of action, viz., that of negligence and
carelessness in the exercise of the Defendant's rights, by reason whereof the Plaintiffs'
rights were injured; and that if the Defendant meant to object that the Plaintiffs'
right and title was not alleged with sufficient certainty, he ought to have demurred
specially to the declaration instead of pleading over.
With respect to the second count of the declaration, the right of action, as stated
in that count, appears, in one respect, more doubtful. There is no allegation in this
count of any right of easement in alieno solo, which forms the Plaintiffs' ground of
action in the first count. And as to the allegation that it was the duty of the Defen-
dant to give notice to the Plaintiffs of his intention to pull down his wall, if he did
not shore it up himself, it is objected, and we think, with considerable weight, that no
such obligation results, as an inference [354] of law, from the mere circumstance of
the juxta-position of the walls of the Defendant and the Plaintiffs. But we think
ourselves not called upon, on the present occasion, to decide this question. For the
count goes on to allege that it was also the duty of Defendant to use due care and
skill, and take due reasonable and proper precaution in pulling down his walls adjoin-
ing to the Plaintiffs' vault, so that for want of such care, skill, and precaution, the
Plaintiffs' vault might not be injured. We think that duty is clearly imposed by law;
and that a breach, which alleges that the Defendant conducted himself so carelessly,
negligently, and unskilfully, in pulling down his wall, as, by reason thereof, to injure
the Plaintiffs' wall, is well assigned; and that, inasmuch as this latter allegation of
duty is severable from the former, it states a good ground of action.
Upon the whole, therefore, we think the Plaintiffs are entitled to judgment on the
demurrers filed to the several pleas of the Defendant.
Judgment for Plaintiffs.
[355] STAyERS V. CURLING AND ANOTHER. Nov. 25, 1836.
[S. C. 3 Scott, 740; 2 Hodges, 237; 6 L. J. C. P. 41. Discussed, Bartin v. Bidwell,
18 Ch. D. 247.]
Plaintiff, as Captain of a South Sea whaler, 'covenanted with Defendants, that he
would proceed to the fishery and procure a cargo of sperm oil, &e. or as great a
proportion as might be, under all circumstances, within his power to obtain; would
return to London, and at his own cost deliver the cargo; would obey instructions;
be frugal of provisions, and not dispose of any of them without accounting for the
same; and would not smuggle or trade, or permit any on board to do so :-Defen-
dants covenanted, on the performance of the before-mentioned terms and conditions
on the part of the Plaintiff, to pay him a certain proportion of the net proceeds of
the cargo :-Held, that the Plaintiffs covenants were independent, and that the
performance of them was not a condition precedent to an action on the Defendants'
covenant.
The declaration stated that, on the 9th of February 1832, by certain articles of
agreement, bearing date the day and year aforesaid, between the Defendants therein
described as owners of the ship Offley, then lying at Gravesend in the river Thames,
of the one part, and the Plaintiff of the other part ;--which said articles of agreement
were sealed with the respective seals of the Defendants, but being in the possession of
the Defendants, the Plaintiff could not bring them into Court;-after reciting that the
Defendants, as owners of the ship Offley, had fitted out the same with all necessary
3 BING. (K. C.) 354.](ViewImageLocal?handle=hein.slavery/ssactsengr0242&div=1&collection=&method=preview&ext=.png&size=3)