TROWER V. CHADWICK. Com. Pleas. and procured to be dug and made, divers excavations in the earth, near to the said foundations of the said vault or cellar of the plaintiffs, and loosened, weakened, and disturbed such foundations, without taking due and proper precautions to prevent the said foundations from being weakened, and injured, and giving way; and by reason thereof, the said foundations then became and were injured, loosened, and weakened; and the said vault or cellar of the plaintiffs, became and was greatly injured and weakened; and by reason of the said several premises, and also by reason of certain timber, wood, bricks, and mortar, and other things afterwards, to wit, on &c. falling upon the said vault or cellar of the plaintiffs, (and which vault or cellar, by reason of the same having been so weakened and injured as aforesaid, and on no other account, was then unable to bear or resist the force, weight, and pressure of the said timber, wood, bricks, and mortar, and other things as the same otherwise might and would have done,) the same vault or cellar of the plaintiffs then, to wit, on &c. gave way and fell in, and became and was greatly injured and destroyed, and by reason of the several premises, a great part, to wit, one-half of the said wine became wasted, lost, spoiled, and destroyed, and the residue thereof became, and was, and still is injured, and deteriorated in value, and the said bottles were damaged and destroyed; and thereby also the plaintiffs, from thence hitherto, lost and became deprived of the use of their said vault or <cellar, and of the profits, benefits, and advantages which they otherwise might and would have acquired from the possession and use thereof; and the same became of no use or value to the plaintiffs; and thereby the plaintiffs were greatly prejudiced and injured in their said trade and business, and necessarily incurred divers expenses, to wit, to the amount of 20007. in having their said vault or cellar examined and surveyed, and the nature and extent of the said damages, injuries, and losses ascertained and repaired, and in and about the removal of the ruins of the said vault or cellar, and of such of the said wines as were not wholly lost and destroyed, and in and about the removal of the said wine, and said bottles, and pieces thereof, and the procuring the said vault or cellar and the ruins thereof, and the said wine and bottles to be watched and taken care of during the times aforesaid, and otherwise in relation to the several premises and matters last aforesaid, and were otherwise injured. : Second count. That before and at the times of committing the grievances hereinafter mentioned, the plaintiffs were possessed of a certain other vault, situate in London aforesaid, and used and occupied the same in and for the purposes of carrying on their said trade and business of wine merchants, and kept and had in their said vault, divers large quantities of wine, to wit, &c., and bottles of the plaintiffs of great value, to wit, of the value of 20007. That at the time of the committing of the grievances hereinafter mentioned, the defendant was about to pull down, and prostrate, and remove, and did pull down and prostrate certain other vaults, and buildings, and walls, next adjoining the last-mentioned vault of the plaintiffs, and thereupon it became and was the duty of the defendant, in the event of his not shoring up or protecting the plaintiffs' last-mentioned vault in that behalf, to give due and reasonable notice to the plaintiffs of his, the defendant's, intention, to pull down, prostrate, and remove the said vaults, buildings, and walls, so adjoining the plaintiffs' lastmentioned vault, before the defendant prostrated and removed the same, so as to enable the plaintiffs to protect themselves in that behalf; and also, to use due care and skill, and take due, reasonable, and proper precautions, in and about the pulling down, and prostrating, and removing the said vaults, buildings, and walls, so adjoining the plaintiffs' last-mentioned vault, so that, for want of such care, skill, and precaution, the last-mentioned vault of the plaintiffs, and the contents thereof, might not be damaged or destroyed on that occasion, or the plaintiffs injured in respect thereof: yet, the defendant, not regarding his duty in that behalf, but contriving and intending to injure the plaintiffs heretofore, to wit, on &c., and on divers other days and times, afterwards and before the commencement of this suit, wrongfully and injuriously pulled down, prostrated, and destroyed the said vaults, buildings, and walls, so adjoining the last-mentioned vault of the plaintiffs, without giving the plaintiffs, or either of them, due or reasonable or other notice of his, the defendant's intention so to do, according to his said duty in that behalf, although the defendant did not shore up or protect the plaintiffs' said last-mentioned vault; and the defendant did not nor would use due care or skill, or take due, reasonable, or proper precautions, in or about the pulling down, or prostrating, or removing the said vaults, buildings, and walls, so adjoining the last-mentioned vault of the plaintiffs, upon the said last-mentioned occasion, according to his said duty; and the defendant contriving and intending to injure the plaintiffs heretofore, to wit, on, &c., and on the said other days and times after that day and before the commencement of this suit, wrongfully and injuriously pulled down and prostrated divers parts of the said vaults, buildings,. and walls, so adjoining the said last-mentioned vault of the plaintiffs, upon the last-mentioned occasion, in a careless, unskilful, and improper manner, and behaved and conducted himself carelessly, unskilfully, and improperly in that behalf; and by reason of the several premises in this count mentioned, the last-mentioned vault of the plaintiffs, became and was greatly shaken, and weakened, and injured; and by reason of the several premises in this count before-mentioned, and also by reason of certain timber, wood, bricks, and mortar, and other things, afterwards, to wit, on, &c., falling upon the said lastmentioned vault of the plaintiffs, (and which vault, by reason of the same having been so shaken, weakened, and injured as aforesaid, and on no other account, was then unable to bear or resist the force, weight, and pressure of the last-mentioned timber, wood, bricks, and mortar, and other things, as the same otherwise might and would have done,) the last mentioned vault of the plaintiffs then, to wit, on &c. was greatly injured and damaged, &c. Pleas.-Fourth; as to so much of the first count as related to the defendant not shoring up, propping up, or otherwise securing or taking other reasonable or proper precautions, to support, or secure, or shore up the said vault or cellar of the plaintiffs in that count mentioned, so as to prevent the same from being weakened, or damaged, or destroyed on the occasion, in the said first count mentioned; that the defendant was not, on the occasion, in that count mentioned, or otherwise, bound by law or otherwise, nor was there any duty, obligation, or liability, imposed or cast by law or otherwise upon him, to shore up, prop up, or otherwise secure, or to take other reasonable, or proper, or any means to support, or secure, or shore up the said vault or cellar of the plaintiffs, for the purposes in that count mentioned or otherwise, and that the defendant was ready to verify. Fifth; And as to so much of the said first count, as related to the defendant not having taken due and proper precaution, to prevent the said foundations of Com. Pleas. TROWER V. CHADWICK. Com. Pleas. TROWER v. CHADWICK. the said cellar of the plaintiffs from being weakened, injured, and giving way, as in that count mentioned, that the defendant was not on the occasion in that count mentioned, or otherwise, bound by law or otherwise, nor was there then any duty, obligation, or liability, cast or imposed by law or otherwise upon him, the defendant, to take due and proper or any precautions, to prevent the said foundations of the said vault or cellar of the plaintiffs, in that count mentioned, from being weakened and injured, and that the defendant was ready to verify. Sixth ;-As to so much of the said first count, as related to the falling of the said timber, wood, bricks, and mortar, and other things, upon the said vault or cellar; that the said falling of the said timber, &c. was not, nor was the falling of any of them, or any part of them, caused or occasioned by any act, default, neglect, or omission of the defendant, or the breach or neglect of any duty, obligation, or liability, imposed or cast upon him by law or otherwise, and that he was ready to verify. Seventh;―That the defendant had good, lawful, and sufficient right, title, power, and authority, to pull down, prostrate, and remove the said vaults and walls in the said first count mentioned, and upon part of which, the vault of the plaintiffs was in and by that count alleged to have rested and been supported, and that the digging and making the said excavations in the earth, in that count mentioned, were necessary and proper works for that purpose; and that, if the said foundations of the said vault or cellar, in that count mentioned, were loosened, weakened, or disturbed, they were so loosened, weakened, and disturbed, by and by reason of such necessary and proper works as aforesaid, for the purpose aforesaid; and further, that the plaintiffs, before any damage or injury was or could be done, or caused to be done to them, or their said vault, or the contents thereof, and in sufficient time to guard and protect themselves and their said vault or cellar and its contents, against the consequences of the defendant's pulling down, prostrating, and removing the said vaults, and the necessary and proper works for that purpose, had notice of his intention, to pull down, prostrate, and remove the said vaults and walls; and if they were minded and desirous to protect themselves or their property in the premises, against the consequences of the defendant's so pulling down the said vaults and walls, it was their duty to have properly shored up and supported their vault or cellar, or to take due and proper precautions to protect themselves and their said vault or cellar and the property therein, against the consequences of the exercise by the defendant, of the said lawful right of the defendant, to pull down, prostrate, and remove the said vaults and walls, on which the vault of the plaintiffs, in that count mentioned, was alleged in part to have rested and to have been supported; and had they done their duty in that behalf, their said vault or cellar and its contents would have been saved and protected from the alleged damages and injuries in the first count mentioned, but they wholly neglected and omitted so to do: and the defendant further saith, that in pulling down, prostrating, and removing the said vaults and walls, he was not guilty of any unlawful or wrongful act, neglect, default, or breach of any duty, imposed upon him by law or otherwise, but exercised his said lawful right in the manner he had lawful right to exercise the same, and not otherwise; and if any injury or damage happened, or was occasioned to the plaintiffs or their said vault, or the contents thereof, the same happened and was occasioned by the default of the plaintiffs themselves, in not properly shoring up and supporting their said vault, and taking due and proper precautions to protect themselves and their said vault or cellar and its contents, from the consequences of the exercise, by the defendant, of his said lawful right to pull down, prostrate, and remove, and in pulling down, prostrating, and removing the said vaults and walls, and not by and through any unlawful or wrongful act of the defendant, or any default or omission of the defendant, of any duty or obligation imposed on him by law or otherwise, in the pulling down, prostrating, and removing the vaults and walls, and that he was ready to verify. Eighth. As to so much of the last count as related to the defendant not having given the plaintiffs due and reasonable notice of his intention to pull down, prostrate, and remove the said vaults, buildings, and walls, in that count mentioned; that the defendant was not bound by law or otherwise, nor was there any duty, obligation, or liability, imposed or cast on him by law or otherwise, to shore up or protect the said last-mentioned vaults of the plaintiffs on the occasion, in that count mentioned or otherwise; nor was it his duty, in the event of not shoring up or protecting the said last-mentioned vault of the plaintiffs, to give due or reasonable or any notice of his, the defendant's, intention, to pull down, prostrate, and remove the said vaults, buildings, and walls, adjoining the vault of the plaintiffs, in that count mentioned, in manner and form as the plaintiffs had in that count alleged; conclusion to the country. Eleventh. As to so much of the said last count, as charged it to have been the duty of the defendant, to have taken due and reasonable precautions in and about the pulling down, and prostrating, and removing the said vaults, walls, and buildings, in that count mentioned; so that, the said last mentioned vault of the plaintiffs, and the contents thereof, might not be damaged or destroyed, or the plaintiffs injured in respect thereof; that it was not his duty to have used due and proper or any precautions in that behalf, as the plaintiffs had in that count alleged; conclusion to the country. Twelfth. As to so much of the said last count as related to the falling of the said timber, wood, bricks, and mortar, and other things, upon the said vault of the plaintiffs; that the said falling of the said timber, wood, bricks, and mortar, and other things, upon the said vault of the plaintiffs, in that count mentioned, was not, nor was the falling of any of them or any part of them, caused or occasioned by any act, default, omission, or neglect of the defendant, or the breach or neglect of any duty, obligation, or liability, imposed or cast upon him, by law or otherwise, and that the defendant was ready to verify. Thirteenth.-And, as to the said last count of the declaration, that he, the defendant, had good, and lawful, and sufficient right, title, power, and authority, to pull down, prostrate, and remove the said vaults and buildings, in the said last count mentioned, and therein stated to have been pulled down, prostrated, and removed by him; and that the plaintiffs had notice of his intention so to do, before any damage or injury was or could be done, or caused to be done to their said vault or cellar and the contents thereof, or any part of such contents, in sufficient time to have enabled them to guard and protect themselves against the consequences thereof, if they had been minded or desirous so to do; and, if they had been so minded or desirous, it was their duty to have shored up and supported their said vault in that count mentioned, or to have taken other due and proper precautions to have protected themselves and Com. Pleas V. CHADWICK. Com. Pleas. TROWER v. CHADWICK. their said last-mentioned vault and its contents, against the consequences Special demurrer-the causes assigned appear in the arguments. R. V. Richards, in support of the demurrer.-First, the declaration is sufficient. The plaintiffs are entitled to declare on their possession of the vault; Dodd v. Holme (a), Jones v. Bird (b), Brown v. Windsor (c). It is true that the mere act of digging near the plaintiffs' vault, may not of itself be actionable; Wyatt v. Harrison (d); but here the declaration alleges that the act was done wrongfully; and in the last-mentioned case, as well as in Peyton v. The Mayor of London (e), it was not alleged that the plaintiff had a right to have his house supported by the adjoining house. The declaration discloses a sufficient liability by the defendant to support the vault; and it will depend upon the evidence, at the trial, whether the plaintiffs are entitled to damages. Secondly, the pleas are insufficient. The first count of the declaration states that the plaintiffs' vault in part rested upon the walls of the defendant; and that the plaintiffs were of right entitled that their vault should be so supported. The subsequent statement, that the defendants removed the adjoining walls without shoring up or securing the plaintiffs' vault, is a mere statement of the manner in which the injury was sustained. Therefore, the fourth plea, which denies that the defendant was bound by law, to shore up and secure the vault, traverses an immaterial allegation in the declaration. The plaintiffs rest their cause of action upon their right to have their vault supported, and that is not answered in any part of the plea. (a) 1 Ado. & Ellis, 493. (b) 5 B. & Ald. 837. (c) 2 Cr. & J. 20. (d) 3 B. & Adol. 871. |