Page:United States Reports, Volume 1.djvu/355

344 

1788.

occafion.–whatever might be the effect of the teftimony, as between Ingles and Waters, the original builders of the houfes, to whom alone it has any relation.

2. Nor, on the ʃecond point, is the action authorized by the Act of Affembly. The words relating to this controverfy are, that

“ the firft builder fhall be reimburfed one moiety of the charge of

“ the party wall, or for fo much as the next builder fhall have occa-

"fion to make ufe of, before he ƒhall in any wiƒe uʃe or break in 

“ ʃaid wall, &c.”— Here then is the remedy which by operation of law is given to the firft builder ; and when a ftatute gives a new remedy the party muft take it on the terms of the Act. 2 ''Burr. Fitzg.'' 47. 3 Lev. 48. Fitz 85. 1 Vent. 104. Stra.  The Plaintiff was empowered to compel a reimburfement of the moiety of his expences beƒore Waters could uʃe the wall ;  and if he has neglected to do fo, although it would perhaps be unjuft in Waters himfelf to refufe the payment, yet there is no legal or moral obligation that can bind a fubfequent purchafor ; for, on the fpirit and words of the Act, he had a right to prefume that the claim was already fatisfited; or, if he had known that it was not, he might have infifted on fome abatement in the price. The firft builder, indeed, could have no greater lien than the carpenter, or mafon, who built the houfe. In England, where real eftate is not liable for the payment of fingle contract debts, if a houfe defcends to the heir he is not bound to pay the carpenter that repaired it, who can only refort the perfonal eftate for fatisfaction. 1 Veʃ. 155. So here ; as the Plaintiff allowed the fecond builder to ufe the party wall beƒore he exacted the contribution which the law allows ; it became a matter of mere perfonal confidence ; and, however the perfon of Waters might be liable, his houfe and lot were effectually difcharged.

For the Plaintiƒƒ, in reply. As the Defendant has not relied on the ftatute of limitations in his plea, no argument from the lapfe of time can apply. Nor is it any reafon that the Plaintiff fhould loft his claim, becaufe the Sheriff omitted, or neglected, to make it known at the time of fale ; and there is no ground to prefume (nor ought fraud ever to be prefumed,2 Atk 83.) that the Plaintiff knew when the fale was. Incumberances in law or equity are not altered or affected by a Sheriff's fale. The Sheriff has no authority to bind a ftranger to the procefs under which he fells: and this diftinguifhes the cafe from that of the Truftee, whofe acts are binding upon the ceʃtuy que truʃt  It is clear that a mortgage was not mentioned at the fale ; for, the Sheriff only fells the right which the Defendant had in the premiffes. The Defendant ought to have enquired whether the Plaintiff's claim eas fatisfied ; and the law does not help thofe who fleep, but only thofe who are active and vigilant.

The right given by the Act of Affembly to be paid beƒore is a new and extraordinary one ; for, the common law admits of not compenfation untill value received. There is not any remedy, however, pointed out for the recover of this new right ; and it will hardly