1826. HATCHARD v. HAGUE. tween the obtaining the rule, and the taking the money out of Court, there being nothing oppressive or vexatious in the plaintiff's conduct. Mr. Justice BURROUGH concurred. Mr. Justice GASELEE.-In the case of Sawbridge v. Coxwell, the application was made after the plaintiff had taken the money out of Court. In Burmester v. Hilch, Mr. Justice Le Blanc said-"Without a strong case is made out to shew an intentional vexation, and view to enhance expense on the part of the plaintiff, there seems to be no ground for the Court to interfere out of the ordinary course." And Mr. Justice Bayley said—" The only inconvenience that can ensue in such a case as this, is the additional costs of the declaration; but that would not necessarily overbalance the inconvenience of the new mode of proceeding now proposed." Here, there is no case made, out of intentional vexation or oppression on the part of the plaintiffs, who only refused to accept the money at the time it was offered. Rule refused. Friday, Nov. 17th. Where, for a series of years, the agent of a lessor had allowed his te BRAMSTON V. ROBINS. THIS was an action of replevin. The declaration was in the common form, and stated that the defendant had taken and detained certain goods nants to deduct and chattels of the plaintiff's of the value of 687. 10s. 5d. The defendant made cognizance as bailiff to Thomas Latter and James Dashwood, for 391. 8s., being parcel of the a sum yearly for the land tax, according to the improved value of the pre mises demised, and gave receipts accordingly:-Held, that the lessor's assigns could not distrain upon a subsequent tenant for the money which had been so allowed. sum of 2721. due for seventeen years' rent in arrear from the plaintiff to the said Thomas Latter and James Dashwood, to the 25th of March, 1824, by virtue of a demise theretofore made, at and under the rent of 167., payable quarterly, the residue of the said sum of 2721. being satisfied. Plea in bar, riens in arriere, whereupon issue was joined. At the trial of the cause, before Lord Chief Justice Best, at Westminster, at the Sittings in the last Easter Term, a verdict was taken by consent for the plaintiff, subject to the opinion of the Court on the following case: "In the year 1764, Henry Dawkins was seised in fee of the premises, for the rent of which the distress was made, being one of two dwelling houses, Nos. 9 and 10, Beaufort Buildings, Strand, in the county of Middlesex; and, by indenture of the 17th of October, 1764, made between the said Henry Dawkins of the one part, and one Henry Mill of the other part, Dawkins demised to Mill, his executors, administrators, and assigns, the said dwellinghouses, to hold the same from Lady-day, 1807, for the term of forty-three years, at the yearly rent of 167., and 167., clear of all taxes except the land-tax, payable quarterly, at the four usual days of payment of rent in the year, the first payment to be made on Midsummer-day next ensuing the commencement of the term. "Thomas Latter, the present landlord, and his trustee, James Dashwood, became seised of the property on the 26th of April, 1786. James Whiting became possessed of the term demised by the indenture of 1764, on the 25th of December, 1822. "From the commencement of the term, to the time of Whiting's purchase, in the year 1822, the rent of 167. and 161. per annum, was paid to Mr. Tyndale (who acted under a power of attorney from Thomas Latter, to receive his 1826. BRAMSTON v. ROBINS. 1826. BRAMSTON V. ROBINS. rents, pursuant to a deed of trust for securing an annuity to a third party), the tenant for the time being first deducting thereout the full amount of the land-tax charged upon the improved value of the two houses (which improved rent was rated at 70l. per annum for each house), agreeably to the following receipt:— "Received 16th of May, 1817, of M. Michel, Esqr,, by payment of Mr. Cox, half a year's ground-rent, due to Thomas Latter, Esq., at Lady-day last, as under. (Signed) G. B. Tyndale. Allowed one year's land-tax, due Lady day, 1817. Cash received £700 900 £16 0 0 66 Whiting (who became possessed of the term on the 25th of December, 1822) and the plaintiff in this suit were partners; and soon after that time, the plaintiff and Whiting entered into possession of the premises, the partnership business being carried on there. "After Whiting became assignee of the term, and up to Lady-day, 1824, the full amount of the rent was paid without any deduction whatsoever in respect of payments on account of the land-tax. "On the 14th of April, 1824, a demand was made upon the plaintiff, on behalf of Latter, for the sum of 1007. Os. 5d., arrears of rent for the house No. 9, and a similar demand for the like sum of 1007. Os. 5d., in respect of the other house, No. 10. "The following are the amounts of the assessments made, from time to time, upon the two houses in respect of the land-tax, the amounts whereof have been retained and deducted by the tenants for the time being, without any objection being made to such retainer and deduction on Mr. Latter the part of the receiver before mentioned. 1826. BRAMSTON v. ROBINS. "The demand on behalf of the landlord, for which the distress in question was made, was for the amount allowed for land-tax from Lady-day, 1807, to Ladyday, 1822, upon the surplus assessment on and beyond the proportion of such assessment, as attached to the rent reserved on the lease of 1764, in respect of the house in which the distress was made. "If the Court should be of opinion, that the tenants were justified in making such retainer and deduction, or that the defendant was otherwise precluded from enforcing his demand by way of distress, at the time the distress in question was taken, then, a verdict was to be entered for the plaintiff, for the sum of 41. 4s. and costs. But, if the Court should be of opinion that the defendant was entitled to recover, then a verdict was to be entered for him, for the sum of 391. 8s., with a finding of the value of the distress, without regard to the form of the pleadings." The case now came on for argument, when Mr. Serjeant Wilde, for the plaintiff, was stopped by— Lord Chief Justice Best, who said, that, although, in the case of Harris v. Shipway (a), where the plaintiff gave (a) Bull. Ni. Pri. (7th Edit., by Bridgman), 182, a. 1826. BRAMSTON ย. ROBINS. a note of hand for rent in arrear, and took a receipt for it when paid, and the defendant afterwards distrained for the rent, and the plaintiff brought trespass-it was held, that, notwithstanding this note, the defendant might distrain, for it was no alteration of the debt till payment; yet, in Smith v. Wilson (a), it was decided, that, if A. indorse a note to B. for a precedent debt, and B. give a receipt for it as money when paid, yet if he neglect to apply to the drawer in time, and by his laches the note is lost, it will extinguish the precedent debt. And, in the case of Watson v. Atkins (b), where a party took seven-sixteenths of certain premises, the whole of which were then rated at the annual value of 357., and the lessor covenanted to pay all taxes then chargeable on the premises, or any part thereof, or on the yearly rent thereby reserved, and the lessee covenanted to pay all fresh taxes which should thereafter be charged upon the premises, or any part thereof: it was held by Mr. Justice Bayley and Mr. Justice Holroyd (dissentiente Abbott, C. J.), that the true construction of these covenants was, that the lessor should pay such taxes as were chargeable on the premises at the time of making the lease, considering them as of the annual value of seven-sixteenths of 351., and that the lessee should pay all fresh taxes, and all such additions to the taxes formerly chargeable as were occasioned by the improved value of the premises. His Lordship then called upon Mr. Serjeant Lawes, for the defendant, to support the distress made by him as bailiff to the ground-landlord Latter, and his trustee Dashwood. The learned Serjeant submitted, that, if the only question were with regard to the payment of the land-tax, it (a) Bull. Ni. Pri. 182, a. (b) 3 Barn. & Ald. 647. |