Page:United States Reports, Volume 1.djvu/353

342 

1788.

the 1ft of Auguʃt, 1774 was fold under a Venditioni Expond to one Ridley but he, alfo into diftrefs, the houfe, by virtue of a fimilar procefs againft him, was again fold, on the 7th of  1776, to the Defendant, Bringhurʃt,  for a full and valuable confideration. In the advertifements publifhed on the occafion of thefe fucceftive fales, no other incumberance was mentioned, than a ground-rent of Ł 6: and the Defendant had remained in quite poffeffion of the premiffes until about two or three years ago, when the Plaintiff demanded of him one half of the coft of the party wall between the above mentioned houfes; and, the demand being refufed, he brought this action to recover the amount.

The queftion, therefore, agitated on the trial, was, whether the claim for a reimburfement of a moiety of the coft of a party wall, under the Act of Affembly, (fee 1 State Laws 293.) was a lien upon the land, or only a perfonal charge againft the builder of the fecond houfe?

The Plaintiff called feveral witneffes (who had been Regulators of confiderable experience) in hopes of eftablifhing a cuftom favorable to his pretenfions. They only proved, however, that the valuation of a party wall was never made until the fecond houfe was built; and that, even afterwards, it was frequently poftponed for four or five years. One of the witneffes, indeed, faid, that he remembered an inftance where the purchafer paid the moiety of the coft of the party wall, and not the original builder of the fecond houfe; but he could not afcertain whether this was the effect of any agreement of the parties, or not.

For the Plaintiƒƒ, it was urged, that, in a variety of cafes, the law favored and fupported a ufage in particular matters, even before it had attained all the characteriftic qualities of a cuftom. Thus, the general rule of law entitles a Leffee pur auter vie to emblements, but not a Tenant for years ; and yet, on the ufage of a particular place, it was determined, that where there was a leafe for one year from the 25th of March, the Leffee might (after the expiration of the term on the fucceeding 25th of March)  enter at the October harveft, upon the arrable lands, and remove the crop, notwithftanding the pofitive limitation of his contract. Doug. 361. A warrant of attorney to confefs a judgment is, by the courfe of the Court (which is the law of the Court) made irrevocable ; and yet it in the nature of all letters of attorney to be revocable. Farreʃt. 95. In Pennʃylvania, likewife, feveral ftriking precedents have been eftablifhed upon this point. On proof that it was a ufage among Tanners to work in and out for three watches, it was lately decided in this Court, that, for that purpofe, the leffee of a Tan-yard  was entitled to hold over the poffeffion, althogh his agreement was for a fixed and determinate time. So, in the cafe of a Feme Couvert, who could not at common law convey her maiden lands but by Fine, yet, as it had been the conftant ufage of the province to make fuch veyances