
    Derumple vers. Clark.
    1763.
    Evidence of Payment of full Rent by a Tenant for five or six Years, without any Claim of Deduction for Taxes, such being also the Custom of the Town, is sufficient Evidence of a Contract to pay Taxes under the Province Law, which provides that "where no Contract is" the Landlord shall reimburse half the Taxes. Russell, J., dissentiente.
    THIS Action was brought by the Tenant against the Landlord for the Recovery of half the Taxes, upon the Province Law called the Tax.Act. () This Case was said to differ from the Case of Jackson v. Foye, () try’d before this Court in August Term last, as in that Case Jackson had been Tenant to Foye so many Years, there had been many Settlements,—whereas here Derumple had been Tenant only five or six Years. The Rent had been paid, but there had been no regular methodical Settlement.
    
      Mr. Auchmuty, for Plaintiff,
    
    urged, that the Law was very express and particular—“Where no Con-“tract is, the Landlord shall reimburse the Tenant “half the Taxes,” so that the Payment of the whole Rent is no Argument of a Contract to pay half the Taxes, for the Tenant by the Law is not to keep back his Rent, but to have the Taxes reimbursed, which is an Argument that the Whole is first to be paid. I can have no Idea of an implied Contract in this Case; the Law evidently points out an express one.
    
      Mr. Thacker, for Defendant.
    
    It has been the uninterrupted Custom of this Town for the Tenant to pay the whole Taxes, and though this Law is of very antient Date, () we find no Action on it till 1752; so that it always supposed that such a Contract is made. The Words of the Law are not—where no express,—no written,—no verbal,—but “where no Contract is.” And I think the continual paying Rent for several Years without any Demand of a Deduction, and several Receipts having been given by the Plaintiff to the Defendant in full of all Accounts, are full Evidence that such was the Intention and Meaning of the Parties, which is a sufficient Contract. To have this Point called in Question would be big with the greatest Inconveniences. If Landlords who from Year to Year have received their whole Rents, and given Discharges for them, are to be called to account for many Years’ Taxes, it would be productive of an ample Harvest of Suits, of which perhaps our Brotherhood might reap the Gleanings.
    
      Mr. Auchmuty.
    
    As to the Custom of the Town; if there had been no Law, that might have been an Argument of some Weight; but the Law is express, and shall any pretended Custom controul it? As for the Consequences they must not be considered—if it is Law, it is Law, &c.
    
      
      Justice Oliver.
    
    As for the Custom of the Town, I can’t think it of any Weight; but as the Law says “where no Contract is,” you must confine it to an express Contract. I see no essential difference between this and the Case of Foye & Jackson, and can’t but think the Evidence you have is a Presumption of a Contract so strong that you must find for the Defendant.
    
      Justice Russell.
    
    I think the Law evidently means an express Agreement. However, I don’t think we have here any Evidence of an implied Agreement, or any Agreement at all.
    
      Justice Cushing.
    
    If there be Anything to show the Intention of the Parties, I hold that Evidence of a sufficient Agreement within the Sense of the Law; and that the Intention of these Parties was that the Tenant should pay the Whole, may be collected from the Evidence joined to the Custom of the Town.
    
      Justice Lynde.
    
    I always thought that the Intention of this Law was not to affect the Taxes in such Towns as this, but merely where Farms are let to the Halves, where the Benefit of the Estate being divided, ’tis but just the Charges should be divided too. I think the Custom of the Town is a great Thing, and that the Parties are to be supposed to intend according to the Custom. I think the Evidence sufficient to prove a Contract within the Intendment of the Law.
    
      
      (1) See ante, p. 27, note (1).
    
    
      
      
        (2) Ante, p. 26.
    
    
      
      (3) The earliest statute provision that we find on this subject is in the Prov. St. of 4 W. & M. in 1692. By this act however, as by the Gen. Sts. of 1860, c. 11, § 9, the landlord was to pay the whole taxes in the absence of any particular agreement. The first provision for a contribution was in the Prov. St. of 6 W. & M. in 1694, and is as follows: “The sermer or occupier of any houses or lands, being affected for the same in his occupation, to be reimbursed the one half of what he shall to pay toward the said assessment by the landlord or lessor where there is no particular contract to the contrary, and shall be allowed to discount the same out of his rent.” The last clause was omitted in subsequent acts. Ante, p. 27, note (1).
    
   Ch. Just.

You are to go according to Law and Evidence. Where the Law is in any Case doubtfull and the Equity of it plain, you should verge towards Equity. Custom shall not be placed in Opposition to Law, but it may be a Circumstance going to interpret the Intention of the Parties. I see Nothing to distinguish this from the Case of Jackson v. Foye.

Verdict for Defendant.  