there was no express covenant there by the landlord to pay, as there is here; but the distinction between the two cases is merely imaginary for the exception out of the tenant's covenant threw the liability for the excepted tax upon the landlord, as much as an express covenant to pay that tax could have done, and was in real substance and effect, a covenant by the landlord to pay the land tax. BAYLEY, J.-It has been truly stated on both sides. that this case presents a mere question of construction of a particular covenant in a lease. That covenant is by the lessor, and is, that he shall pay all taxes, &c., already charged, or to be charged, upon or in respect of the land demised, during the continuance of the term granted by the lease. The covenant refers to the lease, and the lease contains a reservation of an annual rent of 797. 12s. 6d., and a stipulation that the lessee shall not build upon the land, without the written licence of the lessor so to do. The lessee, therefore, admits by the lease, that the land, in its then state at the period of the demise, without any building whatever upon it, is worth the annual rent of 797. 12s. 6d. ; and the one party agrees to pay, and the other to receive, that particular amount of rent. Taxes might immediately have been imposed according to that amount, taking that as the value of the land; and then the question would have been, whether when the value of the land was increased, the landlord should pay taxes in proportion to the amount actually paid to the parish, or in proportion to the amount of taxes calculated according to the increased value of the land. The covenant is to pay all taxes then charged, or to be charged. At the time when the lease was executed, taxes were imposable only in proportion to the then value of the land, namely, 791. 12s. 6d. per annum. Great improvements are afterwards made in the land, by the erection of buildings upon it; and then, as it seems to me, the lessee was entitled to claim from the lessor, not the entire 1827. WATSON v. HOME. 1827. WATSON บ. HOME. amount of taxes, calculated upon the entire improved value of the premises, but the amount of taxes calculated according to their value at the date of the demise, namely, the 797. 12s. 6d, rent. It appears to me, that all the cases bearing upon this subject have proceeded upon that principle; namely, that a landlord who covenants to pay taxes, is to pay them in proportion to the rent he receives, and no more; and that if the taxes are increased, by improvements upon the premises which enhance their value, the tenant is to pay such increase. If that is the correct rule, the landlord in this case is liable for the taxes calculated upon the original rent and value of the land, 797. 12s. 6d., and no more; and the damages must be increased in that proportion, whatever that proportion may be. HOLROYD, J., and LITTLEDALE, J., concurred. Judgment for the Plaintiff. It was afterwards agreed by the counsel for both parties, that the damages should be increased from 57. 1s. 6d. to 301., the latter sum being as nearly as possible the amount resulting from a calculation of the taxes in the proportion suggested by the Court. Where, upon a de fence of usury, the Judge SOLARTE and others, assignees of ALZEDO, a Bankrupt, v. MELVILLE and another. THIS was an action of assumpsit upon six bills of exchange, drawn by Maltby and Co., to their own order, upon and accepted by the defendants, and by Maltby and Co. indorsed to Alzedo before his bankruptcy. At the that no usury trial before Lord Tenterden, C. J., at the Sittings in states it to be his opinion has been com mitted, but leaves it to the jury to draw their own conclusion from the whole matter, and they find against the usury, the Court will not disturb the verdict. In London after last Hilary term (a), it appeared that in (a) Counsel for the plaintiffs, Scarlett, F.Pollock, and Brougham; for the defendants, Tindal, S. G., 1827. SOLARTE บ. MELVILLE. 1827. SOLARTE บ. MELVILLE. discounted. Bramley had generally in his hands a mass of their bills and of the bills of other persons, and was generally indebted to Maltby and Co. to a large amount on the balance of accounts, and had a running account with them. On the 24th October, 1823, Bramley wrote to Alzedo, "Allow me to say I have been equally deceived with yourself as regarded Wagstaffe, but I can assure you, if from any representations of mine, you have been induced to give him credit, I will, if my life is preserved, see justice done by you. As far as my own engagements exist with you, I am going on, I trust, in that straight forward path to liquidate them. It will be a work of time, but I will accomplish it, provided (a) you do not withdraw yourself from me." On the 12th November, 1824, Bramley wrote to Alzedo-" The continued confidence you place in me will be a stimulus to every exertion on my part, to see that not one shilling is left unpaid; and let me conjure you to divest your mind of all prejudice against me, because I had unfortunately to do with a rogue as well as yourself; and further rest assured, I shall not feel happy till I have not only paid you any loss by bills taken from me, but also for any you may have taken in consequence of representations made by me, which, at the same time, I wish you to believe, I did most innocently. Give me only your support (a), and you will never have occasion to repent it." On the 17th November, 1824, Bramley wrote " I am resolved that every shilling due to you, both legal and honorary(b), I mean honorary (a), because if you took bills from Wagstaffe upon any assurance of mine, I am bound to see you protected, and will do so; I only require time and your support (a), and will prove to you I am an honest man." At this period the discount accounts between Alzedo and Bramley were in the following form: (a) Post, 202 (a). (b) The words "shall be paid," appear to be here omitted. "£456 7 0 Maltby & Co., due 5th Oct. 94 days,£5 17 5 5 17 5 1827. SOLARTE 450 9 7 45 0 0 to be passed to account (a). £405 9 7" Upon this footing the parties proceeded until 31st December, 1824, when, upon Bramley's making out an account of the sums retained by Alzedo, on account of Bramley's guarantee on the bills of Wagstaffe, discounted through him, they were found to amount to 56211. 2s. 6d., being upwards of 12007. more than sufficient to discharge such guarantee. Bramley's own debt being now discharged, he proposed to Alzedo, that if Alzedo would continue his discounts, he should retain one per cent. upon each transaction (b) towards satisfaction of the debt remaining due from Wagstaffe in respect of bills discounted by Alzedo, without the intervention of Bramley. (a) No question arose as to the legality of this transaction, as the six bills were not drawn till after the ten per cent. arrangement had ceased to be in operation. The form of the guarantee given was, I hereby guarantee to you the regular payment of the enclosed twenty bills; and, in case of need, will duly provide for the same. H.Bramley.London,8th Oct.1825." No consideration appears upon the face of this guarantee, (4 B. & A. 595), nor can any be necessarily inferred, (Ib. 597). If the bills declared on had been discounted whilst the ten per cent. was deducted, a question might have been raised, whether, upon the discounting of bills, it is usury to retain a sum which the broker is under a legal or a moral obligation to pay to the discounter. If such retainer is authorized by (b) Supposing the bills discount- บ. MELVILLE. |