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1827.

WATSON

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.

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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 791. 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 791. 12s.6d.; and the one party agrees to pay, and the other to receive, that particular amount of rent. Taxes might inmediately 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

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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 791. 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, 791. 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 51. Is. 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.

upon a dé

Solarte and others, assignees of Alzedo, a Bankrupt, v. Melville and another

. Where, This was an action of assumpsit upon six bills of exfence of usury, change, drawn by Maltby and Co., to their own order, states it to be upon and accepted by the defendants

, and by Maltby and his opinion

Co. indorsed to Alzedo before his bankruptcy. At the that no usury trial before Lord Tenterden, C. J., at the Sittings in has been committed, 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.

1827.

SOLARTE

MELVILLE.

London after last Hilary term (a), it appeared that in November, 1822, Bramley, a bill broker, had applied to Alzedo, to discount for him the bills of Wagstaffe, whom he represented to be perfectly safe.

This was acceded to, and Wagstaffe's bills were discounted by Alzedo to a large amount. The bills were not indorsed by Bramley, but his course was to give the bankrupt a written collateral guarantee.

Besides the bills discounted through Bramley, Alzedo, on the application of Wagstaffe, discounted other bills for Wagstaffe, without the intervention or knowledge of Bramley. In January, 1823, Wagstaffe failed; Alzedo then being a holder of his bills to the amount of 45111. 158. 6d., discounted through Bramley, and of 93921. 9s. 4d., upon bills received immediately from Wagstaffe. On the 28th January, Bramley applied to Alzedo for indulgence in respect of his liability; and 1st July, 1823, wrote to him as follows, “ I wish to know if it will be convenient to you if I should bring you some bills of which there could not exist a doubt of perfect solidity, if you would like to discount them at five per cent, and deduct at the rate of ten per cent from such bills against the bills unpaid in

your hands. If it was agreeable a short time would convince you

that
you

could sustain no loss on any taken from me. I would offer you some particularly drawn by Messrs. Maltby and Co., &c.” This proposal was acceded to by Alzedo. Bramley was employed by Maltby and Co. to discount bills with Alzedo, but they were ignorant of the terms upon which he dealt with Alzedo, as they were charged by Bramley merely with discount and commission, his mode of dealing with them being, occasionally to settle bills to a point, that is, to hand over to them specifically the amount of each bill discounted, and occasionally to advance money on account of the bills

(a) Counsel for the plaintiffs, for the defendants, Tindal, S. G., Scurlett, F.Pollock, and Brougham; Gurney, and Platt.

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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 Alzedom" 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(6), 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).
(1) 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

MELVILLE,

450 97
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 12001. 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 (6) 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 If such retainer is authorized by legality of this transaction, as the the principal, the contract is in six bills were not drawn till after substance this: in consideration, the ten per cent. arrangement had A. will lend money, at five per ceased to be in operation. The cent., to B. B. agrees to pay to form of the guarantee given was, A., or to permit him to deduct out “ I hereby guarantee to you the of the nominal amount of the loan, regular payment of the enclosed a sum legally or morally due from twenty bills; and, in case of need, C. to A. On the other hand, if will duly provide for the same. the deduction is not authorized by H.Bramley.London,8th Oct.1825." the principal, it seems to be either No consideration appears upon the a mere tortious withholding of part face of this guarantee, (4 B. & A. of the principal's money, (post 205) 595), nor can any be necessarily or the acceptance of a collateral inferred, (Ib. 597). If the bills consideration for the loan, from the declared on had been discount- broker. See Whitev. Wright,5 D. ed whilst the ten per cent. was & R. 110, 3 B. & C. 273. deducted, a question might have (6) Supposing the bills discountbeen raised, whether, upon the ed to have 94 days to run, as in discounting of bills, it is usury the aboye statement, this would to retain a sum which the bro- amount to a bonus of nearly four ker is under a legal or a moral per cent. per annum. obligation to pay to the discounter.

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