Page:United States Reports, Volume 1.djvu/357

346 

1788.

the wall, if he has firft paid me a moietyof the coft of building it. Now, although no action will lie to recover this moiety until the fecond houfe is actually begun, yet, if it is begun and a breach made in the wall before the payment, the builder is confidered as a trefpaffer, notwithftanding half of the wall is raifed upon his ground, and in an action of trefpafs againft him, he could not juftify under this Act. Or, perhaps, the Plaintiff might wave the trefpafs and bring an action on the implied affumption for money paid for the Defendant's ufe.

The difficulty, indeed, of afcertaining how much the firft builder is entitled to receive, until the fecond houfe is erected, has given rife to the ufage that has been proved ; but this extends no further than to fhew, that the valuation of the party wall is never made before the fecond houfe is built, and, often, not until feveral years afterwards. The ufage, to this effect, may have a reafonable foundation ; but to reach the prefent cafe the evidence of a ufage, if at all admiffiable, ought to have fhewn, that, for a long feries of years, the owner of the fecond houfe, however remote from the builder, was held liable to pay the moiety of the charge o the party wall. This has not, I think, been fatisfactorily done.

The Plaintiff then contends for his claim upon another principle, that, as the Defendant has the ufe and occupation of the wall, he ought to be proportionally liable for the coft of building it ; and this would certainly be a ftrong argument, if a lien actually exifted. But, if the moiety of a party wall is only a perfonal charge againft the fecond builder, there is no more reafon that a fubfequent purchafor fhould be refponfible for that, than for the payment of the brickmaker or mafon. Confidering it, therefore, as a lien, it will bind the eftate, like a mortgage or judgment ; but, confidering it as a perfonal charge, the Plaintiff, upon an implied contract (as well as the tradefmen who were employed, upon an exprefs one) muft refort to Waters for payment and fatisfaction of his demand.

This, therefore, brings it to the original queftion, whether,in this cafe, a lien exifts or not? And are clearly of opinion that it does not. Why, indeed, fhould the Legiflature have directed the payment to be made beƒore the breach, if they meant that the fecond houfe fhould be forever charged with the coft of the party wall, whoever might be the owner? In almoft every inftance of a lien there is fome record by which it is announced to the public, and to which every man may have accefs. But here, it is a dormant tranfaction ; the claim is not known when the fale takes place, fo that the purchafor lofes the opportunity of indemnifying himfelf; and, even it if had been fatisfied by the firft builder, or the intermediate purchafor, that is a fact which it cannot be in the Defendant's power at his time to eftablifh.

Verdict for the Defendant. McKEGG