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1812.

GRANIAM against Wade.

Comyn, and supported by Garrow and Taddy. By these latter it was said to have been the intention of the landlords to secure at all events a neat rent of not less than 601., that is allowing 201. out of the 801. reserved: but that according to the defendant's construction, if the taxes were to increase much beyond their then amount, the landlords, so far from receiving any thing, might have to pay something to their tenant for his occupation of the premises, which could never have been intended. It would also be an unequal and improbable arrangement that the landlords should pay the additional and further taxes for improvements of which the tenant was to have all the present benefit.

Lord ELLENBOROUGH, C. J. There is considerable obscurity in the wording of the deed; but the sense of it seems to be that the tenant covenanted to pay the 801. yearly rent; and all taxes thereon, (that is, as the amount of the taxes then stood with reference to the rent reserved,) were to be allowed to him out of the 801.; for it goes on to provide that the tenant shall

pay all such further or additional rates and taxes as should be assessed on the demised premises; (that is, in their then condition,) as also on any additional buildings or improvements which the tenant might make. The landlords take a point at which they will be taxed; and let the taxes vary as they will beyond that point, they are only to be taxed according to the then ad valorem rate on the 801. reserved rent. The remainder therefore beyond the 201. rate on the premises is to be borne by the tenant.

GROSE, J. If a different construction were to prevail than that which my lord has stated, it might happen, if

the

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1812.

the rates were greatly increased, that the landlords would
have nothing to receive from the tenant.

GRAHAM against WADE,

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BAYLEY, J. (a). At the time of making this lease there were then rates and taxes to the amount of 201. a-year assessed upon the premises worth 801. a-year rent; and the landlords agreed that so long as the premises remained charged with that rate upon the 801. a-year reserved rent, they would take their proportion of the burden, which then amounted to 201.: but if that rate were to be increased, the tenant was to take that further and additional charge upon himself; the landlords still remaining liable for their proportion upon the 801. as before. This appears to be the sense of the deed, though it is not so clearly expressed as it might have been. The tenant covenants to pay “all such further or additional rates and taxes, &c. :" further than or additional to what but the existing amount of the rate on the estimated value of the premises as they then were at 801. a-year rent? and also the further and additional rates on any additional buildings or improvements which the tenant might make. Then comes the landlords' covenant, that they would pay all rates, &c. on the premises or on the tenant, in respect of the yearly rent of 801. except such further or additional taxes as might be charged on the premises.

Rule absolute.

(a) Le Blanc, J. was absent on a special commission at Lancaster, and did not come into Court till the 5th of June.

1812.

BERTIE, Clerk, against BEAUMONT.

Monday, June 1st.

THIS

THIS was an action on the case for an obstruction to A servant put

into the occua private right of way, in which the plaintiff de

pation of a cot. clared that at the time of the grievance on the 1st of tage, with less

wages on that January 1808 he was lawfully possessed of and occupying account, does

not occupy it as a certain messuage and two acres of land, with the appurte

a terant, but

the master may nances, in the parish of Buckland, in the county of Surrey; propert and then claimed, in respect of such his own occupa- Clareon

clareon it as his

own occupation tion, a certain way for himself and his servants over a cer- in an action on

the case for a tain close of the defendant to the said messuage and disturbance of land, &c.; and alleged an obstruction to the said way over the defen

a by the defendant. At the trial before the Lord Chief dant's close to

such cottage. Baron, in Surrey, the plaintiff called a witness of the And it matters

not that the name of Howell, who stated himself to be a labourer in

cottage was the plaintiff's service, and described the cottage, in re- two parts, one

divided into spect of which the right of way was claimed, as divided of which only

was in the ocinto two parts; the one occupied by himself for the cupation of

such servant, last 12 years; the other by a Mrs. Dove, who had the other being occupied her portion for some years past at an annual occupied by a

tenant paying rent of 50s. That he paid no rent, but had less wages rent. by 5l. a-year, on account of his paying no rent in money: and was only a weekly servant. That one Flint who lived there before him, had paid 51. a-year for it. That Mrs. Dove was tenant to a Mr. Bish before the plaintiff bought the cottage, and had continued to live in it since. It was thereupon objected that such occupation by Howell was not the occupation of the plaintiff, as alleged in the declaration, but in effect as a tenant: and his Lordship, considering the occupation of one portion of Vol. XVI. D

the

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1812.

BERTIE

against BEAUMONT

the cottage by Mrs. Dove to be clearly in the character
of tenant; and that the occupation of the other part by
Howell was in effect at a like rent of 51., though not
actually paid in money as rent, but deducted out of his
wages in lieu of rent, and therefore also in the character
of tenant; which disproved the allegation that the mes-
suage, &c. was in the occupation of the plaintiff at the
time of the obstruction complained of; directed a non-
suit.

This was moved to be set aside by Onslow, Serjt. in the last term; and Garrow, Lawes, and Nolan now opposed the rule, and contended that Howell's occupation of the moiety of the premises was as tenant in his own right, and not merely as a servant of the plaintiff, living in the plaintiff's house ; such as is the occupation of a servant living in a lodge or park-gate house. It is true that Howell was a weekly servant or labourer of the plaintiff; but that was not incompatible with his occupation of this house as a tenant at the annual rent of 51. and such in fact was the rent he paid for it, though to save the trouble of paying with one hand and receiving with the other, the sum of 51. a-year was deducted out of his wages : but the mode of payment cannot alter the character of the payer. He cited The King v. Matthews (a). (Lord Ellenborough, C.J. There was no question made of this sort in that case. The argument here goes this length, that if the gate-keeper of a gentleman's park occupying the lodge, or a gardener an outhouse in the garden, hired as a yearly servant, were dismissed from

(a) Cald. I.

the

the service for misconduct, they would still have a right 1812. to continue their occupation of the respective houses as

BERTIE tenants, till the tenancy were legally put an end to; for

against in all such cases they would have less wages on account

BEAUMONT of the convenience of their occupation.] In those cases the places occupied, though detached, are constituent parts of the master's domicile, which denotes their occupation to be entirely in the character of servants; but the messuage in question was no part of the plaintiff's domicile either in fact or in law, but both before and after the division of it had been occupied by tenants paying rent; and the other moiety of it was still occupied in that manner. They also suggested a doubt whether the occupation of a moiety only of the cottage, in respect of which the right of way was claimed, would satisfy the allegation in the declaration : but Lord Ellenborough, C.J. said that if the plaintiff occupied any part of that which gave him a right of way, the allegation was satisfied. Another doubt was suggested as to the fact, whether Howell had not occupied this part of the cottage and paid rent for it before he was taken into the plaintiff's service; which it was admitted would make a difference in the case : and the Court said that they would refer to the Lord Chief Baron to ascertain that fact; but . it was at last agreed that no such evidence had been given.

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Lord ELLENBOROUGH, C. J. I cannot consider that Howell stood in the relation of a tenånt to the premises. The plaintiff put him in possession of them as his hired servant, and, as any person so circumstanced might be expected to do, he allowed the man less wages on account of the convenience to him of the occupation. If the man

had

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