Amory v. Melvin. But occupation under the leases, had the use either for purposes of light, air or storage; and the defendants Melvin & Badger had such use of the yard in common with three other tenants. the defendants R. & T. C. Bacon had no use of the yard for any purpose. The defendants had occupied the premises under different leases. The other tenants of other parts of the building had had leases also, of different terms, and the rent had varied with them in the different terms. Upon the foregoing facts, the court ruled that plaintiffs were entitled to recover of the defendants taxes under the leases, apportioned as above, for the year 1870, and found for the plaintiffs. The defendants, in each case, alleged exceptions. A. A. Ranney, for the defendants. The offered evidence of usage was incompetent, and the usage proved was invalid. The matter of taxes was provided for by an express written contract, admitting of a reasonable interpretation, which usage could not enlarge, vary or control. Insurance Companies v. Wright, 1 Wall. 456. 1 Smith's Lead. Cas. (6th Am. ed.) 681. Macomber v. Parker, 13 Pick. 175, 181 and 182. Randall v. Rotch, 12 Pick. 107. Dickinson v. Gay, 7 Allen, 29, 37. If the taxes are to be apportioned pro rata, according to the rents paid by the different tenants, the contract requires them to be apportioned according to the rents paid under the leases existing at the time when the defendants' leases were given. The usage to apportion according to the rents in fact paid on the first of May of each year, under contracts made between the lessors and other tenants, subsequently to the defendants' lease, contravenes the law and violates the written contract. It is unreasonable to make the apportionment according to the rents actually paid, because the defendants are thereby subject to the lessors' power to let other portions of the building at prices which they see fit, and the defendants are thus at the mercy of the lessor. Reason and justice require an apportionment according to the relative value of the leasehold premises, compared with the whole value as estimated by the assessors for the whole estate. Wall v. Hinds, 4 Gray, 256. This point was not argued at all Amory v. Melvin. in Codman v. Hall, 9 Allen, 335, and is not fully developed in the opinion of the court. Besides, the two cases differ. It does not appear in that case when the taxes were assessed or payable. They may have been assessed and pavable within the term. There is a difference also between the covenants in the two cases, and for aught that appears, the different lessees in that case held under contemporaneous leases. The previous practice of the parties could not control or vary, or be used to construe the subsequent contract in writing. Besides, it appears that the taxes so apportioned were paid without knowledge of the mode in which the assessment had been made. The covenants in the leases provide for no apportionment, or mode of apportionment, of the taxes. This want cannot be supplied by parol evidence of usage, because no provision is made for an apportionment in the contract, and the obligation to pay arises from an express written covenant. Macomber v. Parker, 13 Pick. 175. Dickinson v. Gay, 7 Allen, 29, 37. Metcalf v. Weld, 14 Gray, 210, 212. Lewis v. Thatcher, 15 Mass. 431, 432. As the taxes were not actually payable or assessed during the defendants' term, none are collectible of them for the year 1870. In Wilkinson v. Libbey, 1 Allen, 375, the taxes were found to have been assessed on May 1st. It is otherwise in the case at bar. In the second of these cases the defendants had no use of the yard; in the first, the defendants used it in common with other tenants. This is important, as bearing upon the apportionment and the validity of the alleged usage. In the defendants' lease, in one case, vacant land was included; in the other, it was not. E. Merwin, for the plaintiffs, was not called upon. MORTON, J. These actions are brought upon the covenants of leases, to recover the taxes assessed for the year 1870. In the leases the defendants covenant that they will pay "all taxes and assessments whatsoever, which may be payable or assessed in respect of the premises, or any part thereof, during said term. The leased premises were parts of a large building which was Way v. Wheeler. leased to several tenants. At the trial the presiding judge ad mitted evidence of a usage in Boston, in such cases, to apportion the whole tax assessed upon the building among the different tenants according to their respective rents. This question was directly decided in Codman v. Hall, 9 Allen, 335. Though an estate is leased to several independent tenants, taxes are uniformly assessed upon the whole estate. The covenant of each tenant to pay taxes cannot be construed to mean the taxes upon the whole estate. From the nature of the case some mode of apportioning the whole tax must be contemplated by the parties. The usage to apportion it in proportion to the rents paid by the tenants is a convenient and reasonable usage, and in the absence of any express stipulation upon the subject, the parties must be deemed to bave contracted in reference to it. The defendants also contend that as their leases expired on the first day of July, 1870, and as the board of assessors did not fix the rate of taxation and assess the tax until August, they are not bound by their covenants to pay the taxes for the year 1870. But it is immaterial when the valuation of estates is completed, or when the tax is payable. The assessment, when completed, relates back to the first of May, and the tax is in law regarded as assessed on that day. The taxes for 1870 were therefore taxes "assessed in respect of the premises during said term," and the defendants are liable for it under their covenants. The case of Wilkinson v. Libbey, 1 Allen, 375, is decisive upon this point. Exceptions overruled. JOHN M. WAY vs. WILLIAM Z. WHEELER & another. by Gen. Sts. c. 124, § 13, and St. 1861, c. 112, when notice of an intention to take the poor Cebtors' oath is served by .eaving a copy at the last and usual place of abode of the creditor, the creditor is to be allowed not less than twenty-four hours' time in addition to the time allowed for travel. CONTRACT against the principal and surety on a recognizance of the defendant Wheeler, made upon his arrest on an execution Way v. Wheeler. issued by the Police Court of Boston. The condition of the recognizance was that Wheeler should deliver himself up for examination, &c., within thirty days from the day of his arrest, before some magistrate, &c. The answer alleged Wheeler's discharge according to law, after due notice to the plaintiff of his intention to take the poor debtors' oath, and the due administration of the oath to him by a master in chancery. Trial by jury was waived, and the case was heard in the Superior Court by Brigham, C. J., and determined by him on finding the following facts: That the defendant Wheeler was duly arrested on the execution, November 22, 1870, by one John B. Neale, constable, and brought before Robert I. Burbank, master in chancery, and thereupon entered into the recognizance declared on; that, December 20, 1870, Burbank, at the request of the defendant Wheeler, issued a notice to the plaintiff, appointing the office of Burbank, in Boston, and December 22, at two o'clock, as the place and time when the defendant Wheeler would deliver himself up for examination before him for the purpose of taking the poor debtors' oath; that Neale served the notice upon the plaintiff by leaving a copy of it at his last and usual place of abode, on Copeland Street, Boston Highlands, December 21, 1870, at half past eleven o'clock, A. M.; that the plaintiff's last and usual place of abode, was more than three and less than three and a quarter miles distant from the office of Burbank; that the plaintiff personally received this copy about eight hours after it was left by Neale; that the defendant delivered himself up for examination, &c., before Burbank, at the place and on the time appointed in the notice, and remained there from two o'clock to twenty minutes past three o'clock, P. M., when neither the plaintiff nor any person on his behalf appearing, the poor debtors' oath was administered to him by Burbank, in the matter of the execution and arrest, and he was discharged, and relied upon the fact that he was thus discharged, as his compliance with the conditions of the recognizance, and his defence to the action. The court upon these facts found for the plaintiff in the sum of three hundred dollars, the penal sum of the recognizance, and the defendants alleged exceptions. Way v. Wheeler. A. A. Ranney, for the defendants. MORTON, J. The General Statutes provide that the notice of an intention to take the poor debtors' oath shall be served" by giving to the plaintiff or creditor, his agent or attorney, an attested copy thereof, or by leaving such copy at the last and usual place of abode of the plaintiff or creditor, his agent or attorney, allowing not less than one hour before the time appointed for the examination, and time for travel at the rate of not less than one day for every twenty-four miles of travel." Gen. Sts. c. 124, § 13. The St. of 1861, c. 112, provides that "whenever the notice permitted by the thirteenth section of the one hundred and twenty-fourth chapter of the General Statutes shall be served by leaving a copy thereof at the last and usual place of abode of the plaintiff or creditor, his agent or attorney, not less than twenty-four hours shall be allowed before the time appointed for the examination." It seems to us to be the obvious construction of these statutes, that where service is made by leaving a copy at his last and usual place of abode, the creditor is to be allowed not less than twenty-four hours in addition to the time allowed him for travel. The Statute of 1861 is designed as an amendment of the General Statutes, but it does not purport to make any change in the provision as to the time to be allowed for travel. That remains as before, and the only amendment is as to the time to be allowed in addition. That time is to be not less than twenty-four hours, instead of one hour, whenever the notice is served by leaving a copy at the last and usual place of abode of the plaintiff, his agent or attorney. In this case, therefore, the notice was insufficient. Exceptions overruled. |