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 plaintiff's, 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 last-mentioned vault of the plaintiff's 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 lastmentioned 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 last-mentioned vault, &c., (alleging the damage as in the first count.)

The defendant pleaded, first, not guilty. Secondly, that the said vault or cellar of plaintiff's in the first count mentioned did not rest upon, nor was of right in part supported by parts of the said adjoining vaults, and of the said walls in that count mentioned, in manner and form as the plaintiffs bad in that count alleged: concluding to the country.

Thirdly, that the plaintiffs were not, before and at and during the times in the said first count in that behalf mentioned, or at any of those times, of right entitled that their said vault or cellar should be supported by the said parts of the said adjoining vaults and walls in that count mentioned, in manner and form as the plaintiffs had in that count alleged: concluding to the country.

Fourthly, 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 occa

sion 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: concluding with a verification.

Fifthly, 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 the said cellar of the plaintiffs 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: concluding with a verification.

Sixthly, 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, wood, bricks and mortar, and other things, upon the said vault or cellar, 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. Verification.

Seventhly, 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 damage and injuries in the first count mentioned; but they wholly neglected and omitted so to do. And the defendant further said, 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 vault, and taking due and proper precautions to protect themselves and their

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 or through any unlawful or wrongful act of the defendant, or any default or omission of the defendant or any duty or obligation, imposed on him by law or otherwise, in the pulling down prostrating, and removing the vaults and walls: concluding with a verification.

Eighthly, 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 concluding to the country.

:

Eleventhly, 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 in. jured 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: concluding to the country.

Twelfthly, 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: verification.

Thirteenthly, as to the last count of the declaration, that the defendant had good and lawful and sufficient right, title, power and authority to pull down, prostrate and remove the said vaults, walls, 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, &c., alleging in terms nearly similar to those in the seventh plea, the neglect of the plaintiffs to shore up, that the defendant was not guilty of any unlawful or wrongful act, or any neglect or omission of any duty or obligation imposed upon him by law; and concluding with a verification.

The plaintiffs, by their replication, join ed issue on the first, second, third, and tenth pleas; traversed the ninth; and demurred to the fourth, fifth, sixth, seventh, eighth, eleventh, twelfth, and last, for the following causes :—

That the fourth plea traversed matter of law, namely, whether it was the defendant's duty to shore up the plaintiffs' vault; offered an immaterial issue in so doing, and was an informal traverse.

The like causes of demurrer to the fifth plea as to the foundations of the plaintiffs' vaults.

To the sixth plea, that it traversed mere matter of law; offered an immaterial issue; and should have concluded to the country, &c.

To the seventh plea, that the plea did not traverse the plaintiffs' right, but set up that they were bound to support their vault; the same not being matter material to the cause of action, or proper to be referred to a jury; that the plea traversed mere matter of law; that the traverses were uncertain, &c.; and that the plea did not answer all it professed to answer.

To the eighth plea, the same as to the fourth.

To the eleventh plea, that it offered to refer to a jury mere matter of law, namely, whether the defendant was bound to use the precautions stated, and that no grounds of excuse for not using such precautions were alleged.

To the twelfth plea, the same as to the fourth and fifth, that a mere question of law was attempted to be traversed, and that an immaterial issue, whether the defendant caused the timber, &c. to fall on the vault, was tendered.

To the last plea, that matter of law was traversed, and an immaterial point attempted to be put in issue; that the traverse was argumentative and informal; and that the plea did not deny, or confess, or avoid.

R. V. Richards, for the demurrer.-The principal objection advanced to these pleas is, that they put in issue matter of law, and refer that to the jury, which is for the determination of the Judge. The real question is, whether the defendant has demeaned himself so negligently and carelessly as to prejudice and injure the plaintiffs in their property. Whatever doubt there might be formerly as to the mode in which the owners of adjacent property should conduct themselves, it seems now clearly established, that if there be two closes, the owner of one cannot, by building upon it, prevent the owner of the other from using that other, unless, from efflux of time, a grant can be presumed. The declaration does not allege title in the plaintiff, nor that the messuage was ancient; it merely alleges possession; and whether the plaintiff is entitled to the easement or not, or whether the injury to the house was the consequence of the defendant's negligence, is a question for the jury-Dodd v. Holme (1). The same principle may be extracted from Brown v. Windsor (2); and although, in Wyatt v. Harmer (3), the Court were of of opinion that the house should be an ancient one, and, as it was not so stated, the defendant should have judgment as to so much of the declaration as referred to

(1) 1 Ad. & El. 493. (2) 1 Cr. & Jer. 20.

(3) 3 B. & Ad. 871; s. c. 1 Law J. Rep. (N.S.) K.B. 237.

the digging so near the plaintiff's house as to weaken the foundation, and thereby injure the house, the defendant there took advantage of the defect by demurrer, and did not, as in the present case, plead over. In Peyton v. the Lord Mayor of London (4), it was held, that the plaintiff could not recover, as he had not alleged or proved any right to have his house supported by the defendants; here, however, the right is alleged. As to the necessity imposed on the defendant of giving notice of his intention of pulling down the walls, Jones v. Bond (5) is decisive. The first three pleas raise the entire question, which is one of fact for the jury, that is to say, whether the work has been properly or improperly done by the defendant. The fourth plea, as to shoring up, is bad, as it denies any right or obligation upon the defendant to shore up, and evidently refers a question of law to the jury. The sixth plea, as to the falling of bricks and timber, is also bad, for the same reason; it is not said, that it happened by the act or default of the defendant; but it it said, that he, by his improper and negligent conduct, was the causa causans. Again, there is no introductory matter as to this in the declaration, which the defendant could either traverse, or confess or avoid, as there is no allegation that the causing of the timber to fall was the act of the defendant. Here, therefore, the defendant sets up a new fact, and he has not concluded as he ought. The seventh plea is also bad, as it professes to answer the whole of the second count, but it does not; it is at best but a hypothetical answer, and insuffi cient; it should confess and avoid absolutely-Gould v. Lashbury (6). To the remaining pleas, it may be also objected, that they refer matter of law to the jury. Wightman, contrà.-The prolixity of the pleas cannot be objected to. The defendant could not plead otherwise, as since the new rules the general issue only refers to the act done. The declaration here is bad. The plaintiffs have alleged a right to have their vault supported on the walls of the defendant; but they have not stated

(4) 9 B. & C.725; s. c. 7 Law J. Rep. K.B. 322. (5) 5 B. & Ald. 837.

(6) 1 Cr. M. & R. 254; s. c. 3 Law J. Rep. (N.S.) Exch. 299.

how this right has accrued. They could not have obtained such right by situation alone. The right might have been ac quired by possession for a certain time, or by licence, subject to the right of the defendant to pull down the walls gently, and this would be sufficient to prevent the defendant from being a wrong-doer. Now, with regard to the sixth plea, as to the falling of timber, bricks, &c., this, it is admitted, is not imputed to the defendant as his act; why, therefore, should it be attempted to make him liable for an act which is not his? He may, to a certain extent, have weakened, by his conduct, the foundations of the plaintiffs' vault; but in such case, Flower v. Adam (7) shews that the plaintiffs cannot recover if the mischief be occasioned by the misfeasance of a third party not sued. As the plaintiffs, in the declaration, took upon themselves to allege

that the defendant was bound to shore up, and give notice, it was equally competent to the defendant to deny such duty, and negative such obligation. Such issues raised no questions of law; they are strictly and properly issues of fact. It is to the consideration of the jury they should be submitted, and it is by them the questions raised by the pleadings should be decided.

Richards, in reply, contended, that the main question was, whether the second count of the declaration was good, after pleading over, and this should be decided in the affirmative; and, even if the count were specially demurred to, it would still be good in substance. The object of the defendant, by his mode of pleading, was to take from the jury that on which it was their duty to decide. Suppose, in a case like the present, where two houses adjoined each other, and it did not appear that one house had a right of support as against the other, and injury was done by the conduct of one party, should not certain facts be submitted to the jury? should they not be called on to decide that the party had used his property, in accordance with the maxim sic utere tuo ut non alienum lædas? Here the plaintiff has replied, he has done so, merely by taking issue upon the facts, for he could not at once take issue, and new

(7) 2 Taunt. 314.