1788.
occasion,—whatever might be the effect of the testimony, as between Ingles and Waters, the original builders of the houses, to whom alone it has any relation.
2. Nor, on the second point, is the action authorized by the Act of Assembly. The words relating to this controversy are, that "the first builder shall be reimbursed one moiety of the charge of the party wall, or for so much as the next builder shall have occasion to make use of, before he shall in any wise use or break into the said wall, &c."—Here then is the remedy which by operation of law is given to the first builder; and when a statute gives a new remedy the party must 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 reimbursement of the moiety of his expences before Waters could use the wall; and if he has neglected to do so, although it would perhaps be unjust in Waters himself to refuse the payment, yet there is no legal or moral obligation that can bind a subsequent purchasor; for, on the spirit and words of the Act, he had a right to presume that the claim was already satisfied; or, if he had known that it was not, he might have insisted on some abatement in the price. The first builder, indeed, could have no greater lien than the carpenter, or mason, who built the house. In England, where real estate is not liable for the payment of single contract debts, if a house descends to the heir, he is not bound to pay the carpenter that repaired it, who can only resort the personal estate for satisfaction. 1 Ves. 155. So here; as the Plaintiff allowed the second builder to use the party wall before he exacted the contribution which the law allows; it became a matter of mere personal confidence; and, however the person of Waters might be liable, his house and lot were effectually discharged.
For the Plaintiff, in reply. As the Defendant has not relied on the statute of limitations in his plea, no argument from the lapse of time can apply. Nor is it any reason that the Plaintiff should lose his claim, because the Sheriff omitted, or neglected, to make it known at the time of sale; and there is no ground to presume (nor ought fraud ever to be prefumed, 2 Atk. 83.) that the Plaintiff knew when the sale was. Incumberances in law or equity are not altered or affected by a Sheriff's sale. The Sheriff has no authority to bind a stranger to the process under which he sells: and this distinguishes the case from that of the Trustee, whose acts are binding upon the cestuy que trust. It is clear that a mortgage was not mentioned at the sale; for, the Sheriff only sells the right which the Defendant had in the premisses. The Defendant ought to have enquired whether the Plaintiff's claim was satisfied; and the law does not help those who sleep, but only those who are active and vigilant.
The right given by the Act of Assembly to be paid before is a new and extraordinary one; for, the common law admits of not compensation untill value received. There is not any remedy, however, pointed out for the recovery of this new right; and it willhardly
