ceed, which, he apprized her, he did for the purpose of giving a little time to the sheriff's officer, who was much distressed, and that when that point was gained, the action might proceed again. The Defendant had since pleaded puis darrein continuance a release obtained from the Plaintiff. Best Serjt. had on a former day obtained a rule nisi to set aside this plea, and that the release might be given up to be cancelled. Lens Serjt, against the rule, insisted on the Plaintiff's legal right to release the action, he referred to the case of Bottomly v. Brooke (a), and urged that if he were a trustee for Mrs. Brown, it was a subject of interference for a court of equity only. If indeed there were collusion, which was denied by the Defendant's affidavits, the plaintiff might reply, that the release was fraudulent, and would recover notwithstanding the release; a question which might as well be disposed of by a jury, as by a court of equity: if the release were honest, the action could not proceed. Mrs. Brown might have sued in her own name, if she would; she had never offered to indemnify the Plaintiff against the costs of the suit, and the Plaintiff might release his legal right without the leave of this Court. Best supported his rule. BURROUGH J. observed that in a similar case, about ten years before, Lord Eldon C. J. had holden, that no action could be brought in the name of a trustee, without his consent; but that if a trustee would not consent to lend his name as a Plaintiff, the Court of VOL. VII. (a) 1 Term Rep. 621. n. Chancery 1816. HICKEY ข. BURT. Chancery would, upon application, compel him to permit his name to be used; nevertheless that if an action were once commenced in the name of a trustee, he could not afterwards release it except by leave of the Court. The Court held that if the present action had been commenced without the Plaintiff's permission, the release might have been a trick, the fruits of which the Court possibly might not have the right to take from the Defendant; but here the Plaintiff had lent his name in the beginning, and the sheriff ought not to be permitted to arm himself with this release. Rule absolute. June 28. Where the at Michaelmas CLENNEL v. READ and Another. IN replevin, the Defendants made conusance as bailiffs of J. Musgrave and wife, for a distress for half of a year's rent of a dwelling-house, at 427. a year, payable quarterly, due at Christmas 1814, from Ross, as tenant The Plaintiff occupation of thereof, to J. Musgrave and wife. to a second a house, and afterwards paid threequarters of a year's land lord's property pleaded, as to 4l. 4s. parcel, &c., that it was not in arrear, and as to the residue, a tender by the Plaintiff; he also pleaded, that before the rent became due, and while J. Musgrave and wife were landlord and landlady, the premises were chargeable and charged with the landlord's property-tax, payable to the king; that before the distress, on 18th November 1814, the Plainto the succeed. tiff, being then the occupier of the house, was required, ing occupier, and was obliged to pay, and did pay to the king, for tax, due at over the receipt it was held that the succeeding the landlord's property-tax duly charged and assessed, occupier, pay ing two quarters of a year's rent accruing at the following Christmas, might tender in part of his rent the receipt for property-tax given to the former occupier, And might plead it as a payment made by himself. while J. Musgrave and wife were landlord and landlady of the house, 41. 4s., being after the rate of 25. for every 20s. of the rent of 42., and which 41. 4s. the Plaintiff was by law authorized to deduct, and did deduct, out of the rent, being the first payment to be made by him on account of the rent, and so, nothing of the 41. 4s. was in arrear. The Defendants replied to the first plea by traversing the tender; and to the second plea, they replied that the Plaintiff had not paid and was not obliged to pay the four guineas. Upon the trial of the cause at a sittings in Middlesex, in Easter term 1816, it appeared that J. Musgrave had leased the premises to Ross, under whom Lloyd had occupied them for a period preceding Michaelmas 1814, at which time Lloyd let the Plaintiff into the occupation of them. On the 18th November 1814, Lloyd paid to the collector of the property-tax 37. 38. for three quarters of a year, ending at Michaelmas 1814. It was proved that the Plaintiff tendered sixteen guineas, and the collector's receipt for three guineas, which expressed that that sum had been received of Lloyd, and a like receipt for one guinea received of the Plaintiff for the property-tax, due at Christmas 1814, in full for the half year's rent due at Christmas. It was apparent, as matter of law, that if Lloyd had not paid, and the collector had distreined on the Plaintiff for the tax, as he might have done, the collector would in his receipt have expressed the whole four guineas to be received of the Plaintiff. For the Defendants, it was contended, that the Plaintiff was not entitled to deduct from the rent which he was to pay, the property-tax which Lloyd had paid, but only the one guinea property-tax which the Plaintiff had paid for himself. The jury found a verdict for the Plaintiff, Gibbs C. J. reserving liberty to move to enter a verdict for the Defendant. 1816. CLENNELL V. READ 1816. CLENNELL V. READ. Accordingly, Lens Serjt. having on a former day in this term, obtained a rule nisi, was now called on to support his rule. He urged, that for any thing which appeared in the cause, Lloyd might upon his last settlement have already been allowed this sum of three guineas in his account with his landlord. The case might be materially different, if the Plaintiff had been called on and compelled to pay the tax in Lloyd's default, but Lloyd pays, as he was bound to; the authority to deduct, is only for that occupier to deduct, who was occupier when the tax is levied; nothing in the act enables a former occupier to pay himself, by transferring this chose in action to a succeeding tenant. The Plaintiff never in fact did pay, nor was ever required to pay this sum, and the transfer contended for, may make a material difference in the accounts already settled between Lloyd and Musgrave the lessor, or in the accounts between the lessor and the Plaintiff. GIBBS C. J. We must take it as proved, that the Plaintiff was let into possession of the premises by Lloyd, and therefore was liable for every thing for which Lloyd was liable. It is not necessary for us to consider how this case might have been varied, (though I do not say that it would have been varied,) if there had been any thing in the case, which would enable the lessor to say, "that he had repaid the tenant the property-tax in another mode. The statute (a) enables the tenant to deduct the duties out of the first payment thereafter to be made on account of rent. The tenant here consists of two persons, Lloyd and the Plaintiff': of whom Lloyd was in possession at the time when the principal part of the tax became due, and the Plaintiff is the person who is to make the next payment. It is (a) 46 G. 3. c. 65, s. 74. Sched. A. No. 4. Rule 9. 6* there therefore not too much to say, that as to the four guineas, nothing here was in arrear, and that the fact of Lloyd handing over his receipt to the Plaintiff, is a strong proof that Lloyd abandoned his claim on the lessor, and had no further call on him. As to the other issue, the payment may in fact be taken as having been made by the Plaintiff, though it is Lloyd who takes the receipt, and hands it over to the Plaintiff. I therefore think they are for this purpose to be considered as one, and that the payment must be taken as made by the Plaintiff. The rule therefore must be Discharged. 1816. CLENNELL บ. READ. WILLISON V. WHITAKER. June 29. THE Plaintiff having recovered a judgment for 97%., Bail discharged which, upon error brought for delay, had been af- by the Plaintiff taking from 'firmed, consented to receive from the Defendant three the Defendant bills of exchange, accepted by the Defendant's father, bills of exchange, to at four, eight, and twelve months date, for the amount which a surety of the debt and costs in three instalments. The bills is party, for proving of no value, the Plaintiff had commenced actions payment by against the bail, on whose behalf Vaughan Serjt. had on a former day obtained a rule nisi to stay proceedings in those actions, and to enter an exoneretur on the bail piece. Best Serjt. now shewed cause, contending that the bail were too late in this application, after the Plaintiff had incurred costs. The latest decision on this point, which was the case of Brickwood v. Anniss (a), was contradictory to the former cases, and ruled that the Plain instalments. |