
    Bolling v. Stokes.
    June, 1830.
    (Absent Go alter, J.)
    Landlord and Tenant— Covenant to Pay Taxes — Assessment for Paving Street — Liability.—Private act of assembly in 1813, authorises tile paving- of streets of Petersburg, and ascertains manner of levying expense on proprietors and tenants of lots in town; in 1815, B. lets a lot to S. for term of five years, S. yielding and paying therefor an annual ground rent of 50 dollars, besides all taxes and other public dues in any manner accruing, and besides taxes and public dues of every hind: in 1817, the street on which the lot lies, is paved according to act of assembly, and the expense of paving apportioned and charged to and paid by S. the tenant, in the first instance: Held, this expense of paving, is not a tax or public due of any kind, within the meaning of the covenants in the lease, which the tenant is bound to bear, and therefore he has a right to demand and recover the same of the landlord.
    In an action of assumpsit brought by Stokes against Bolling, in the circuit court of Petersburg, there was a verdict for Stokes, for 874 dollars with interest from the 15th August 1821 till paid, subject to the opinion of the court on a case stated; which was thus:
    A private act of assembly was passed in January 1813, providing or paving the streets of Petersburg (see sessions acts 1812-13, ch. 74, p. 103), by which it was provided: \ 1. That the common hall of the town, whenever it should think proper, or whenever a majority of the owners of tots or parts of lots, on any street or square in the town, should by memorial pray the common hall to pave such street or square, might cause the same to be properly paved; provided the funds of the corporation should be liable to no greater 'x'proportion of the expense of pavement, than what should be requisite for such parts of the street as adjoined the public improvements or lands belonging to the corporation ; $ 2. authorised the common hall to appoint persons to graduate and level the streets, and to superintend the pavement; '& 3. made it the duty of the common hall, whenever it should direct the paving of any street or square, to appoint a committee of its body, to measure and ascertain the extent of each person’s front thereon, and to apportion and charge the expense to the owners of the lots or parts of lots, according to the extent of their respective fronts, including the expense of paving the intersections of the streets, and all other expenses ; which committee should make return of its proceedings to the clerk of the common hall; l A. provided, that when such return should have been made and recorded, the clerk should furnish a copy thereof to the collector of the taxes of the corporation, or other person appointed by the common hall for the purpose; and such collector, after ten days notice published in the newspapers, should and might demand of each owner or occupier of a lot &c. upon the street or square to be paved, the part of the expense apportioned and charged to him, and if not paid on demand, might distrain the goods of the person so charged for the same, in the same manner that distress is made for public taxes; % 5. provided, that when the’ owner of any lot &c. on any street or square about to be paved, should not reside in the corporation, or should not be in the occupancy of such lot &c. the tenant in possession should be chargeable for the expenses, and should be allowed to deduct the same from the accruing rent payable to the owner, in all cases of the tenant’s holding from year to year: that, in all cases of tenants holding lots &c. upon leases for a term over one and under ten years, the expense of the paving, in the first instance, should be borne by the lessee, and the lessor should not be bound to reimburse the same, till the last year of the lease, and then the principal sum only; but if the lessee should prove insolvent, or the premises unoccupied, the lessor ^should be chargeable with the expense: that, in all cases of tenants holding lots &c. for a term of ten years or more, or for life, the expense of paving should be borne by the lessee, or his under tenant: and that in case of non-residence of any owner of an unoccupied lot &c. and no property of the owner in the town whereof distress might be made, the part of the expense chargeable to him might be recovered by motion on ten days notice.
    Afterwards, but before any proceeding under the act of Assembly, by deed of lease, dated the 1st May 1815, Bolling leased to Stokes a lot on old street in Petersburg, for a term of five years, commencing the 1st May 1815, and ending the 1st May 1820, Stokes yielding and paying therefor, an annual ground rent of 50 dollars, “besides all taxes and other public dues in any manner accruing” upon the premises; which said rent should be paid half yearly, “besides taxes and public dues of every kind.”
    In 1817, the common hall duly ordered the street in front of the lot so leased by Boll-ing to Stokes, to be paved, in pursuance of the act of assembly; and there was duly apportioned and charged to Stokes, on that account, as the lessee and occupier of the said lot, the sum of 874 dollars, which he was bound to pay in the first instance, and paid.
    After the expiration of the lease, Stokes brought this action to recover the same sum of 874 dollars of Bolling. And the question referred to the court, was, Whether Bolling was bound to pay him the money?
    The circuit court held that he was, and rendered judgment for Stokes upon the ver- | diet of the jury. And Bolling appealed to this court.
    The case was argued here by Nicholas and Leigh for the appellant, and by the Attorney General for the appellee.
    The argument turned intirely on the question, Whether the assessment and charge for the paving of the street, was a public due in any manner accruing on the leased premises, or a public due of any kind, within the meaning of the covenants *in the lease, which the lessee Stokes thereby stipulated to pay, besides the annual ground rent of 50 dollars.
    
      
      See generally, monographic note on “Landlord and Tenant” appended to Mason v. Moyers. 2 Rob. 606; monographic note on “Covenants” appended to Todd v. Summers, 2 Gratt. 167.
    
   BROOKE, P.

There can be no doubt upon the construction of the act of assembly : its obvious meaning gave to the tenant a demand on the landlord, at the expiration of the lease, for the expense paid by him, of paving the street opposite the lot.

Upon the terms of the lease, there is more question. The words in the covenant are very strong: yielding and paying an annual rent of 50 dollars, besides all taxes and other public dues in any manner accruing &c. But they may be satisfied by the application of them to the ordinary and usual taxes and public dues. To extend them to an expense unknown by the parties, incalculable as to amount, uncertain as to time, and in which the lessee could have no certain interest, would be to disregard all the circumstances under which the contract was made. It is impossible to suppose, that a sum so uncertain in amount, and which might be as large as the sum that was in fact paid, could have been taken into the calculation of the value of the lot, at the time the lease was made. There was nothing by which it could be estimated, like the usual and customary taxes and public dues; nor does it come intirely within any correct definition of the terms taxes or other public dues. It was an uncertain and extraordinary assessment. The act under which it was made, had been in force two years, and having never been acted on, it was doubtful, whether within the term of five years it would be put into operation. That depended on the proprietors of the lots and not on the lessees. It was not a charge on the lot, but on the person of the proprietor (the appellant), having no reference to the value of the lot, but to its front on the street, and it was limited to a particular object and occasion. If intended to be included in the lease, it is improbable, that it would have been left to the general construction of the terms, taxes or other public dues. When collected, it was not applicable to the ordinary purposes *of revenue, of the state or corporation, but to individual objects and purposes, in which three fourths of the owners of lots on the same street might have no interest.

In the case of Southall v. Leadbetter, 3 T. R. 458, the tenant covenanted to pay a rent, and also from time to time and at all times during the lease, the land tax and all other taxes, rates, assessments, and impositions whatever, by act of parliament or otherwise howsoever. During the lease, a party-wall became necessary, and the tenant, under an act of parliament, had to pay his proportion of the expense, which by the act he was empowered to deduct out of the rent. And the question was, whether the tenant was not bound by the terms of the lease, to pay this expense, it being, as was contended, an imposition by law. The court was clearly of opinion, that he was not: lord Kenyon said, “neither is the tenant concluded by his covenant to pay taxes, assessments, impositions &c. for that only extends to the land tax and all other taxes ejusdem generis: but this is nota tax.” X think that a strong case: the party-wall was no more beyond the covenant there, than the paving here; the expense of it was more certain, and more calculable; and the tenant had a more immediate interest in it.

The other judges concurring, the judgment was affirmed.  