As the plaintiff filed no exceptions to the report of the referee, and did not appeal from the judgment of his Honor, allowing the second exception of the defendant, we are to consider the other exceptions of the defendant which were overruled in the Court below, and which are brought to this Court for review, by his appeal.
*491We are of opinion that his Honor erred in not allowing the fifth exception, to-wit, a credit upon the rent for the $140.00 paid on the 18th November, 1861, and the sum of $156.44 for taxes .on the land, paid for the years 1860-61. He is entitled to credit for tire $140, becanse at the time of that payment the first year’s rent was due, and it does not appear that any other debt was due from the defendant to the plaintiff at that time. For, although the referee finds that in 1861, the defendant hired several negro men from the plaintiff at the price of $200 each, it does not appear that any part of the hire was due at the date of this pay men 6, or that it was not paid when it fell duo. The law will therefore apply this payment to the debt which was certainly due, and not to a claim which does not appear to have been due, or to have been unsettled.
The defendant is also entitled to credit on the rent for the 6nm of $156.44 taxes on the land, paid by him, because it may fairly be presumed that the tax was paid to prevent the sale of the land for the tax and to secure the benefit of his lease. 4s the taxes were paid for the ease and benefit of the plaintiff’s testator, his assent thereto will be presumed. The date of this payment is not found, but as the defendant did not. lease until 1861, the date of this credit will be fixed at the time, the taxes for 1861 were due apd ereditable, to be ascertained by the Clerk.
The Clerk of this Court will reform the report in accordance with this opinion, and judgment will be rendered for the sum due after reforming the report.
The plaintiff will pay the cost of this Court.
Peb Cubiah.Judgment accordingly.