would be disposed of by the case of Hyde v. Hill (a), where, under a covenant in a building lease, by the tenant, to pay all the taxes (except the land-tax), it was held, that the landlord was only to pay the old land-tax, and not the additional land-tax occasioned by the improvement of the estate; but the only question here was, whether the plaintiff had paid the rent or not. [Mr. Justice Gaselee.-The question is, whether or not the defendant had a right to distrain.] If the rent was not paid, but was allowed to be in arrear, the remedy by distress would always continue. There is no statute of limitations to operate against such a remedy; for, the relation of landlord and tenant, a reservation of rent, and the fact of its being in arrear, are all that is necessary to constitute a right in the landlord to distrain; it is of no consequence in whose possession the premises may happen to be; the only question then is, whether there was a subsisting tenancy, at the time of the distress. It may, perhaps, be urged, that, in this case, there is no rent in arrear, by the acquiescence of the landlord in giving the receipts to the plaintiff; but rent becomes due by the effluxion of time; and when due, the only question is, whether it has been discharged or not; and nothing short of actual payment will amount to a discharge.There is no doubt, that, in this case, an action of covenant would have lain against the lessee, who could only have pleaded riens in arriere, which plea would have raised precisely the same question that arises on the facts stated in this case; viz. whether or not the rent had been satisfied by payment. No fact of actual payment is either alleged or contended for on the part of the defendant; and it is, in fact, quite clear that only part of the sum due has been really paid. The receipt given imports only a part payment in cash, viz. "cash received 91." the remaining 77. (a) 3 Term. Rep. 377. 1826. BRAMSTON v. ROBINS. 1826. BRAMSTON v. ROBINS. are stated to be allowed for one year's land-tax, due Ladyday; but the question is, whether this sum was properly or legally allowed, so as to enable the plaintiff to avail himself of such an allowance. Even a receipt in full of all demands is not conclusive evidence that the money has been paid; and, especially when, as in this case, a particular mode is pointed out whereby such payment is alleged to have been made, it cannot be contended that it is more obligatory on the party giving the receipt, than a receipt in full would have been: in fact, it only tends to shew that a part has been deducted and remains unpaid; and, unless the tenant can satisfy the Court that he had a right to make such deduction, the full amount must be considered to remain unsatisfied. A party cannot control the operation of a covenant in a deed by the language of a receipt; but he is bound to answer every stipulation of the deed per se: there cannot be a parol discharge to a covenant; nor even a written one, unless by deed. It would be a great hardship upon a landlord, who was abroad at the time, if he were to be deprived of a portion of his rent, to which he had never renounced his claim, in consequence of his having given a power of attorney to the trustee to satisfy an annuity to a third person. The trustee was the mere agent of the annuity creditor. It is no answer, to say that the receipt is a satisfaction of the debt; as a debt created by deed must be discharged either by deed or by actual payment. A part payment of a debt will not operate in discharge of the remainder. Here, there is merely evidence of a payment of part; and that evidence will not amount to satisfaction: such a receipt might perhaps avail a party in an action of assumpsit, but it cannot be pleaded in bar, as against a covenant, or a distress. At all events, the plaintiff has his remedy against the previous tenant` and assignee of the term, who covenanted with him against any previous incumbrances. The landlord, in fact, never received the rent; as the rent was not paid, but only part of it, and the remainder was supposed to be discharged by certain deductions which the plaintiff was not entitled to make: at most, the landlord only received part of his debt; and there is no adequate consideration why he should be presumed to have relinquished his claim to the remainder. It was held, in the case of Fitch v. Sutton (a), that acceptance of a less cannot be a satisfaction in law of a greater sum then due; nor can it operate as an extinguishment of the original cause of action, though accompanied by a conditional promise to pay the residue when of ability: and Lord Ellenborough there said-"It cannot be pretended, that a receipt of part only, though expressed to be in full of all demands, must have the same operation as a release. It is impossible to contend that acceptance of 177. 10s., is an extinguishment of a debt of 50%. There must be some consideration for the relinquishment of the residue; something collateral to shew a possibility of benefit to the party relinquishing his further claim, otherwise the agreement is nudum pactum. It was expressly determined in Cumber v. Ware (b), that acceptance of a security for a lesser sum, cannot be pleaded in satisfaction of a similar security for a greater; and that decision is directly supported by the authority of Pinnell's case (c), which never appears to have been questioned." Although it may be said, that this case may be assimilated to those of Andrew v. Hancock (d), and Spragg v. Hammond (e), where it was held, that, if a tenant omit to deduct the land-tax from year to year, he cannot, after a long series of years has elapsed, enforce his claim to a deduction, by setting off the land-tax of former years, against the rent of the current year, or by bringing an action for (a) 5 East, 230. (d) 3 B. Moore, 278; S. C. 1 Brod. & Bing. 37. (e) 4 B. Moore, 431. 1826. BRAMSTON v. ROBINS. 1826. BRAMSTON v. ROBINS, money had and received; yet the grounds upon which these decisions were founded, was, that the statute (a) requires the tenant to deduct the landlord's land-tax which the tenant has paid out of the current rent; and that the tenant, having acquiesced in the landlord's demand, as of right, of the entire rent, could not afterwards rescind a voluntary payment; but neither of these principles applies to the setting up an improper receipt made without consideration, and in evident mistake, for the purpose of defeating an instrument under seal. Although in Denby v. Moore (a), where an occupier of land, having, during a course of twelve years, paid to the collector of taxes the landlord's property-tax, and the full rent as it became due to the landlord, without claiming any deduction on account of the tax so paid: it was held, that the occupier could not recover back from the landlord any part of the property-tax so paid; although there it appeared, that the tenant had paid the property-tax by voluntary payments, and such a voluntary payment may be considered in the nature of a gift; whilst here, there was no evidence of actual payment by the tenant, but only of a constructive payment by the terms of the receipt. Lord Chief Justice BEST.-I confess, when I first looked at this case, I had no doubt as to the conclusion at which we ought to arrive: if we were to decide as has been contended for by my brother Lawes, we should lay down a most unjust doctrine as far as regards tenants, who may by chance be placed in difficult situations. I felt the full force of the argument, that an acceptance of part of a debt, is not an extinguishment of the whole. The case of Fitch v. Sutton fully establishes that principle, and we are bound to abide by it. But what are the facts of this case? In 1764, a lease was granted of two houses, to commence (2) 38 Geo. 3, c. 5, s. 17. (b) 1 Barn. & Ald. 123. in 1807, and to continue for forty-three years, at the yearly rent of 167. for each house. From the year 1807 to 1822, the tenant paid the landlord the above rent of 167., that is, 97. was paid in cash, and the remaining 77. was retained or deducted for the land-tax, and was so allowed by the landlord. The improved rent of the two houses increased, and was rated at 70l. per annum for each house; and, in the year 1822, 97. 15s. was the amount of the assessment deducted; and then the landlord for the first time discovered the disproportion between the land-tax and the rent, and complained that he had a damnosa hæreditas, as he was obliged to pay more than he received. It was in the year 1822 that the premises passed into new hands, viz. into those of the plaintiff and his partner Whiting. They took possession under the assurance of the landlord himself, that all the previous rent had been discharged; for he had given receipts for rent to the previous tenants, which amounted to a complete discharge. It would be, I think, a great hardship upon an in-coming tenant, to oblige him to pay a bygone rent for the last seventeen years; but my brother Lawes has contended that it would not, as the tenant in such case might call upon those who gave him possession: but, if we look round this metropolis, and observe what changes have taken place within the last seventeen years, we should find that there would not be much to receive from by-gone tenants; some are in their graves, others have become bankrupt or insolvent within that period; so that there would be nothing to repay an in-coming tenant for such a demand, which the landlord had induced him to think there was no pretence to make. It seems to me, therefore, that it would be extremely hard if judgment should be given for the defendant; but, if the law be with him, we are bound to give him the advantage of it, although it might be against the justice of the case. (a) 2 Salk. 421-2. 1826. BRAMSTON v. ROBINS. |