Brewster v Kitchin
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1724 |
| Date | 01 January 1724 |
| Court | Court of the King's Bench |
English Reports Citation: 90 E.R. 568
IN THE COURT OF KING'S BENCH
See S. C. Comb. 466; sub nom. Brewster v. Kidgill, 12 Mod. 166; 88 E. R. 1239 (with note).
[424] de term. sanct^e trin. anno 9 willielmi III. regis. in B. R. brewster versus kitchin. [See S. C. Comb. 466; sub nom. Brewster v. Kidgill, 12 Mod. 160; 88 E. R. 1239 (with note).] Covenant to pay, &c. free of all taxes. A rent was granted anno 1652, with a covenant, that it should be for ever paid, free from all taxes; and the Court doubted, whether the tenant might lawfully detain for the tax of 4s. per 1. the first clause in the statute chargeth every hereditament, but after 'tis said tenant to pay and deduct; and there is another clause not to make void any agreement between landlord and tenant, or any others. Sir Barth. Shower, 5 Co. Jeffery's case reacheth only to landholder; a rent-charge is not subject to any such charge, so that free from taxes must be intended Parliamentary. Serjeant Wright contra. Here is nothing to hinder the tenant from deducting: rents are expresly mentioned in 43 Eliz. so in 23 H. of Sewers; both plaintiff and defendant are parties to the Act of Parliament; and it is not to be intended, that men covenant against future Parliamentary taxes. Veil. 223, Davenant's case, 175, Lucy versus Levingtm. Holt Ch. J. The case of Lucy is not for Brother Wright, yet it doth not seem to make any thing against him. If an attainder be reversed by Act of Parliament, a patentee shall not answer for mesne profits, otherwise if reversed by writ of error, 3 H. 7. I make a great question, whether it be good, unless it be expresly mentioned taxes imposed, or to be imposed by Act of Parliament. As to Jefferey's case, 'tis by the antient law and custom of England, that parishioners do contribute ; it is not so by the civil law, for the parson hath the freehold. [425] I thought this feigned issue had been directed out of Chancery, else I would not have try'd it; do you bring fob actions to learn the opinion of the Court? Sir Barth. Shower. One of the greatest cases in my Lord Coke's Reports was so. Holt. Ay, (Jorlefx case, which was only a preparative for Mildmay's case (which was the real one) but I have heard my Lord Chancellor Finch say (when at the Bar) that COMBERBACH, 426. ANNO 9 WILL. III. IN B. R. 569 it was not known to be so till too late, and then Anderson was very angry ; they should bring a proper action. Vide residuum post 4
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Brewster against Kidgil
...it, although the particular land-tax was imposed subsequent to the grant.-S. C. 1 Salk. 198. S. C. 2 Salk. 615. S. C. 3 Salk. 340. S. C. Comb. 424, 466. S. C. Garth. 438. S. C. 12 Mod. 160, 171. S. C. Holt, 175, 609 a. 669. Thia was a special action on the case, upon a feigned issue, by con......
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Gaw v Córas Iompair Éireann
... ... Before coming to the case of Holmes v. Buckley (1) , just mentioned, it might be better to refer to Brewster v.Kitchin (2) , as this case is referred to first in the notes to Spencer's Case (Sm. L. C. (13th ed., 1929), vol. 1). The two reports of this case ... ...
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Brewster v Kidgell
...1239 (with note). [438] brewster versus kidgell. [See S. C. 12 Mod. 166; 88 E. E. 1239 (with note).] 5 Mod. 368, S. C. 1 Salk. 198, S. C. Comb. 424, 466, S. C. 2 Danv. 56, p. 1. Covenant that an annuity shall be paid clear of all taxes, in such case the Parliamentary taxes shall be intended......
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Brewster v Kitchel
...B. R. Vide the state and resolution of this ease, title Covenant, pi. 4, pag. 198.] Taxes in general means Parliamentary. 5 Mod. 368, S. C. Comb. 424, 466, S. C. 1 Salk. 198, S. C. S. C. Garth. 438. 3 Salk. 340. Cases B. R. 166. Holt 175, 669. Different manners of taxing, and when introduce......