needed.] A man cannot be said to be acting under the act, when he is found to be expressly evading the act. The statute applies only to works done under the inspection and superintendence of the district surveyor.

Parry, Serjt., in support of the rule. The defendant was a mere tenant from year to year, and therefore clearly not such an owner as is entitled to notice under s. 85. The person who is required by s. 38 to give notice to the district surveyor is the builder, not the owner: and by the interpretation clause (s. 3), it is provided that "builder shall apply to and include the master builder or other person employed to execute or who actually executes any work upon any building." Assuming, however, that the defendant was the person who ought to have given notice to the district surveyor, he may be liable to a penalty for the omission, but that cannot affect his rights as against the plaintiff. Then, as to the necessity for a notice of action,-it is said that the 108th section applies only to persons acting under or by the authority of district surveyors. It is manifest that that cannot be the true interpretation of the section: the words "or other person" are clearly referable to "owners" and "builders" as defined by s. 3. The act was not intended merely to put district surveyors in motion. The cases of Collins v. Poney, 9 East 322, and Pratt v. Hillman, 4 B. & C. 269 (E. C. L. R. vol. 10), 3 D. & R. 360 (E. C. L. R. vol. 16), which were decided upon the 100th section of the old building act, 14 G. 3, c. 78, show that this 108th section cannot have the limited meaning contended for on the other side. The defendant clearly intended to act within the statute;(a) and the jury have virtually *found that he did so. It would be putting far too narrow a construction upon the 108th section to [*591 hold it to be limited to district surveyors. [WILLIAMS, J.-Who are the "other persons" who are supposed to be ejusdem generis with district surveyors? Gibbons.-Any persons who are acting under their sanction or direction. COCKBURN, C. J., referred to s. 73, which speaks of "commissioners" who act in the performance of analogous duties with reference to dangerous structures.]

COCKBURN, C. J.-I am of opinion that the rule must be made absolute to enter a nonsuit in this case, on the ground that it falls within the 108th section of the building act, 18 & 19 Vict. c. 122, and consequently that the defendant was entitled to a notice of action, and further that the action should have been brought within the time prescribed by that section for the commencement of actions for anything done or intended to be done in pursuance of the act. Independently also of that section, I am of opinion that the defendant was perfectly justified in what he did. The facts were these:-The plaintiff was tenant of certain premises of which the defendant was the owner, and which premises were separated by a party-wall from other premises adjoining, also belonging to the defendant. The condition of the partywall becoming such as to render it necessary that it should be rebuilt, the defendant, against the will of the plaintiff, entered upon his premises for that purpose; and the question is whether he was justified in so doing. Now, the defendant was the owner of both the premises, and therefore, as my Brother Parry says, he was "owner" of the premises

(a) See Read v. Coker, 13 C. B. 850 (E. C. L. R. vol. 76).

occupied by the plaintiff, and "building owner" with reference to the premises not occupied by the plaintiff. He therefore was entitled, when *592] the *party-wall became decayed, upon giving notice, if notice was necessary, to go upon the premises and do the repairs. The 85th section requires notice to be given to the owner of the adjoining premises. If, therefore, the adjoining premises had been the property of any other than the defendant himself, it would have been necessary for the defendant to give him notice: and, if he had done so, then, as the interpretation clause of the act provides that "owner" shall mean "every person in possession or receipt of the whole or any part of the rents or profits of any lands or tenements, or in the occupation of such land or tenement other than as a tenant from year to year, or for any less term, or as a tenant at will," it is clear that such notice would have satisfied the exigency of the 83d section. But it happened here that there was no adjoining owner other than the defendant himself. Now, it was not necessary that the defendant should give notice to himself; therefore, the necessity for such notice could not arise here. Notice being only required to be given to the "owner" described in the interpretation clause, and there being no person other than the defendant who filled that character, it follows that the defendant was entitled as owner to enter the adjoining house for the purpose of pulling down and rebuilding the party-wall, the state of which was such, as the jury have found, as to render it desirable and necessary so to do. In such a view of the case, there is no necessity to resort to the 108th section of the act, and therefore it is perhaps better not to pronounce any decided opinion as to whether or not a "building owner" is included within the words of that section. The matter is open to much argument on both sides. It has been contended, on the one hand, that a large and liberal view of the statute should be taken in favour of persons who are acting for the benefit of the public; and that, I must own, is the in*593] clination of my opinion: but it is unnecessary to decide it, inasmuch as the defendant is clearly protected under s. 83.

WILLIAMS, J.-I also am of opinion that it is unnecessary to consider whether the defendant is a "person" within the meaning of the 108th section, inasmuch as he need not have recourse to that section, because I think he was justified in entering for the purpose of pulling down and rebuilding the party-wall under s. 83. If, as I at first thought, the defendant relied upon being the "building owner" of the premises occupied by the plaintiff, I should have felt some difficulty in saying that he was justified in what he did. But it appears that he was the "building owner" of the adjoining house, of which as well as of that in the occupation of the plaintiff he was landlord: and he relies upon the 2d article of s. 83, by which a right is given to the building owner,-who by s. 82 is defined to be "such one of the owners of the premises separated by or adjoining to any party structure as is desirous of executing any work in respect to such party structure," to "pull down and rebuild any party structure that is so far defective or out of repair as to make it necessary or desirable to pull down the same." The jury in this case have found that it was necessary and desirable that the partywall in question should be pulled down and rebuilt; therefore, the defendant had a clear right to resort to the powers given him by that section. But it is said that there are two sections which require some

thing to be done by the party before he can proceed to exercise the right given to him by s. 83, viz., the 38th, which requires a two days' notice to be given to the district surveyor, and the 85th section, which requires a three months' notice to be given to the "adjoining owner." Now, as to the latter, it appears that the occupier of the adjoin[*594 ing premises was only a tenant from year to year. He, therefore, is not owner within the definition of owner given in s. 3, and consequently was not entitled to notice. The defendant was himself the owner, and the person entitled to the rents and profits of the premises. The objection, therefore, of the want of a notice under s. 85 falls to the ground: and the only remaining question is, whether it was necessary that the defendant should have given notice to the district surveyor. There is much in the argument that the duty of giving notice to the district surveyor is cast upon the builder only. But, assuming that the defendant is to be considered as a builder within the act, it seems to me that the omission to give that notice does not affect his rights as against the adjoining owner or occupier, though it may render him liable to a penalty for neglecting to conform to the requisition of the act. It therefore seems to me that this objection also fails. As to the observations which have been made as to the supposed hardship on the tenant, that he should be compelled to go on paying rent whilst by reason of the act of his landlord he derives no benefit from his occupation of the premises, it is unnecessary to go into that. It may be, that, notwithstanding the tenant has no right to complain in this form of action, the exercise of the landlord's right under the statute might amount to an eviction, and so disentitle him to recover rent during the period occupied by the repairs.

WILLES, J.-I also am of opinion that the rule must be absolute to enter a nonsuit. I say nothing as to the construction of the 108th section, because the first part of it applies only to the case of a thing done which was not lawful, but where the party doing it was acting bonâ fide under an impression that he was *pursuing the provisions of the act, and therefore he is protected sub modo,-unless a certain [*595 notice be given and the action be brought within a given time. Before coming to any conclusion upon that point, I should think it necessary to consider the decisions upon the 159th section of the Bankrupt Act, 12 & 13 Vict. c. 106, the words of which are much more general, and which have been held to apply only to officers who are bound to act in the performance of some duty, and not to assignees or persons who take upon themselves to act. (a) Contenting myself with merely intimating that, I found my opinion in the present case upon the defendant's being justified in doing what he did, under the 83d section of the act. Now, if the premises adjoining had belonged to any other person than the defendant, the defendant would have been a building owner within s. 82, for that section says that "such one of the owners of the premises separated by or adjoining to any party structure as is desirous of executing any work in respect to such party structure, shall be called the building owner." A "party structure" is by the interpretation clause (s. 3) defined thus,-" Party structure shall include party-walls, and also

(a) See Carruthers v. Payne, 2 M. & P. 420 (E. C. L. R. vol. 17), 5 Bingh. 270 (E. C. L. R. vol. 15).

partitions, arches, floors, and other structures separating buildings, stories, or rooms which belong to different owners, or which are approached by distinct staircases or separate entrances." That is a remarkable definition. If, then, the ownership of the adjoining premises had been in another person, the defendant clearly would have been entitled, as building owner, under s. 83, the party structure being out of repair (as the jury have found this party-wall to have been), to enter for the purpose of repairing it. The 83d and subsequent sections define *596] the rights of the building owner: and s. 86 enacts, that, *" whenever any building owner has become entitled, in pursuance of this act, to execute any work, it shall be lawful for him, his servants, agents, or workmen, at all usual times of working, to enter on any premises for the purpose of executing, and to execute such work, removing any furniture or doing any other thing that may be necessary, and, if such premises are closed, he or they may, accompanied by a constable or other officer of the peace, break open any doors in order to such entry: and any owner or other person that hinders or obstructs any workman employed for any of the purposes aforesaid, or wilfully damages or injures the said work, shall incur for every such offence a penalty not exceeding 101., to be recovered before a justice of the peace.' Turning again to the interpretation clause, I find "owner" means "every person in possession or receipt either of the whole or of any part of the rents or profits of any land or tenement, or in the occupation of such land or tenement other than as a tenant from year to year or for any less term, or as a tenant at will." Such being the meaning of "owner," the words "other persons" must mean other persons generally, and within that category comes the present plaintiff. That being so, the question is, whether the fact of ownership makes any difference, or whether the defendant does not fill the two characters of building owner and adjoining owner. The notice required by the 85th section is to be given, not to the occupier, but to the adjoining owner. There is nothing in the act which requires any notice to be given to the tenant. There being, therefore, no adjoining owner here to whom a notice could be given, no notice was or could be necessary, according to the well-known rule of construction, that, where an act of parliament enacts that something shall be done in a certain way, and subject to a condition, giving the matter in detail, and the condition cannot in the *particular case *597] be performed, it need not be. One familiar illustration of that is, the case of an appeal being given subject to certain recognisances being entered into by the appellant, which has been held to apply to corporations, though, as they cannot enter into recognisances, they cannot perform the condition. They are bound only to do what by their peculiar constitution they can do. In such case the particular intent must give way to the general intent of the statute. So, here, the statute deals with party structures between different properties. The expres sions it uses must clearly be construed so as to apply to party structures notwithstanding the premises on both sides belong to the same owner, just as if they belonged to different owners. I therefore think there is nothing absurd in holding that the defendant may fill both characters; and it seems to me that he had a perfect justification under the 83d section for what he did. The rule must be made absolute.

BYLES, J.-I am of the same opinion. The reasons upon which the

judgment of the court is founded having been so fully given by my Lord and my learned Brothers, I do not think it necessary to add anything.

Rule absolute for a nonsuit.

Affirmed on error to the Exchequer Chamber, 5 Jur. N. S. 916; 28 Law Journ. C. P. 200.

*BROWNE and Another v. SIR ROBERT PRICE, Baronet.

June 25.

[*598

The defendant by deed of mortgage, reciting a loan of 12,5007. by the plaintiffs to the defendant upon the security of a demise of the defendant's life interest in certain property and a conveyance of a reversion in fee, and also by a policy for 13,000l. in the Norwich Union Life Assurance Office, payable within three months after the death of the defendant "in case he should leave issue male by his then present wife living at his death,"-the defendant covenanted that he would "from time to time during his natural life, and so long as the said sum of 12,5007., or any part thereof, or any interest for the same, should remain due and owing on the said security, continue and keep on foot the benefit of the said recited policy of assurance, and pay or cause to be paid the yearly and other premiums, &c., and would not permit or suffer or do any act whereby the said policy might be forfeited or vacated," &c. The deed also contained a proviso, that, in case the defendant should neglect to pay the premiums, it should be lawful for the plaintiffs to pay the same, and to charge the payments so made upon the hereditaments thereby charged. The deed contained no covenant by the defendant to repay the plaintiffs the sums they might pay to keep the policy alive. The defendant paid the interest and premiums regularly down to the year 1848, but since that time (there being then no possibility of his having any issue by his then wife) he had discontinued to pay the premiums. The annual premiums accruing up to the present time were placed to the credit of the office in an account kept by them, called their "Policy Premium Account," and regularly debited year by year by the office to the mortgage account of the defendant, according to the practice of the office,-but the defendant had no notice of this course of dealing.

The plaintiffs having brought an action against the defendant upon his covenant for payment of the premiums, the defendant pleaded payment of 18. into court.

Upon a special case stating these facts,-Held, that, assuming the plaintiffs to have paid the premiums, they were not entitled to more than nominal damages.

But, semble, that the course of dealing stated did not amount to evidence that they had paid them.

THIS action came on for trial at the sittings at Westminster after last Hilary Term, when a verdict was entered for the plaintiffs, by consent, subject to the opinion of the court upon the following case:

The first count of the declaration stated that the defendant by deed of mortgage, reciting that the plaintiffs and Edmond Wodehouse and Edward Wenman Martin (now respectively deceased) had, upon his application and request, agreed to advance and lend him the sum of 12,5007. upon the terms that the repayment thereof, with interest for the same at the rate of 51. per cent. per annum, but reducible as thereinafter mentioned, should be secured to them by a demise of the messuages, farms, lands, and hereditaments therein described for the term of ninety-nine years, if the defendant should so long live, and by a grant and conveyance of the remainder or reversion in fee of and in *the same hereditaments limited to him by a certain indenture of settlement therein mentioned, and also by the policy of assur[*599 ance hereinafter mentioned, and also by the trusts, powers, provisoes, covenants, and agreements thereinafter contained; and also reciting,