Queen's Bench each of the said payments :- "Received from representatives of E. T. 1858. "Edward Fairtlough, Esq., the sum of £5. 6s. sterling, being half "year's rent due to the Corporation of Drogheda, up to and ending of DROGHEDA "the day of for lands at Sunday's Gate; and which rent "has been so received without prejudice to the right of the said "Corporation to question and impeach the title and tenure under and "by virtue of which the said representatives of Edward Fairtlough "claim to hold the lands and premises out of which the said rent "has accrued." The material issues were as follows:-Second.-Did the plaintiffs accept the payments in the first defence mentioned, as and for the annual rent of the premises comprised in the lease of the 13th of November 1820, and in full satisfaction and discharge of the rent payable thereunder prior to the making of the lease of 1842, as in the defence alleged? Third. Did the plaintiffs receive the sum of £34. 9s. Od., in the first defence mentioned, in satisfaction or discharge of the rent payable in respect of the demised premises, from November 1841 to November 1854, as in the first defence alleged? Fourth. Did the plaintiffs agree to accept, and did they accept, the sum of £5. 6s. Od. a-year in satisfaction or discharge, and as and for the yearly rent payable out of the premises, as in second defence alleged? Fifth. Did the plaintiffs from time to time, or at any time during the period from November 1841 to November 1854, agree to receive the moneys in the second defence called the lesser rent, on an agreement that the receipt thereof was not to prejudice the right of said plaintiffs to question and impeach the validity of the said lease of 1842, or the title or tenure under which the defendant and the said W. Fairtlough held the lands and premises under the plaintiffs by virtue of the said lease? Upon the trial, before CRAMPTON, J., at Dublin, at the Aftersittings after Hilary Term 1858, the defendant gave in evidence the lease of 1842, the resolution of the 18th of August 1837, the minutes and entries in the books of the Corporation relating to the fining down of the rent of the said premises, and the several receipts CORPORATION v. FAIRTLOUGH. CORPORATION ບ. E. T. 1858. for rent from the 1st of November 1841 to the 1st of November Queen's Bench 1854. The learned Judge then directed the jury to find for the OF DROGHEDA plaintiffs on the second and fourth issues respectively, upon the FAIRTLOUGH. ground that the receipts produced did not evidence any such acceptance as in those issues respectively mentioned; and also to find for the plaintiff on the fourth issue, on the ground that there was no evidence of any consideration, to sustain an agreement to accept the lesser sum in satisfaction of the larger rent; to which direction of the learned Judge the Counsel for the defendant excepted. The jury found as directed.* E. Sullivan (with him W. E. Exham), in support of the bill of exceptions. First; if there is evidence of the alleged agreement, there is sufficient consideration to support it: the receipts are evidence of such an agreement. We admit that, where the demand is liquidated, payment of a lesser sum cannot, per se, be a satisfaction of the greater sum; but if, with the payment of the lesser sum, any benefit or advantage, however small, be thrown into the scale, a sufficient consideration is raised, and the payment of the lesser sum operates as an accord and satisfaction for the greater sum. That is the true principle established by Cumber v. Wane (a), as qualified by Sibtree v. Tripp (b), and the other modern cases which are collected in 1 Smith's Leading Cases, 4th ed., p. 245. To apply that principle to the present case: during the period from 1841 to 1854, which is covered by the receipts for the smaller rent, the validity of the lease of 1842 was a vexata quæstio, it had not been adjudged to be void; on the contrary, the point was in the course of litigation both in this Court and the Court of Exchequer Chamber in Ireland: Corporation of Drogheda v. Holmes (c). The decision of the (a) 1 Str. 426. (a) 15 M. & W. 23. (c) 11 Ir. Law Rep. 348. NOTE.-The points of the exceptions were as follows:-That the receipts for rent, passed by plaintiffs, evidenced the acceptance by the plaintiffs of the payments made for rent, as or for the annual rent of the premises comprised in the lesse of the 13th of November 1820. That there was evidence of consideration, to sustain an agreement to accept the lesser sum in satisfaction of the larger rent. Queen's Bench CORPORATION v. FAIRTLOUGH. House of Lords, holding these leases to be invalid, was not given E. T. 1858. until the year 1855: Corporation of Drogheda v. Holmes (a). During all this period the defendant relied upon the lease of 1842: OF DROGHEDA the plaintiffs impugned it, and demanded the rent under the lease of 1820; and the defence avers that the defendant refused to accede to that demand, but offered to pay the rent under the lease of 1842, in full discharge of the yearly rent, which payments the plaintiffs agreed to receive and did receive. The plaintiffs thus obtained a substantial benefit; because, had they sued the defendant upon the covenant in the lease of 1820, the lease of 1842, which at that time was apparently a valid lease, would have been a complete answer to the action, operating in law as a surrender of the former lease. The fact of that surrender, and the payment of the fine of £53, are recited in the new lease as part of the consideration for that lease. The plaintiffs, therefore, would have been driven to litigate the matter, and the withdrawal of litigation is sufficient to raise a consideration, even where the plea which is withdrawn is in fact false Cooper v. Parker (b).—[CRAMPTON, J. Do you contend that if a right be asserted upon the one side, and denied upon the other, but no litigation ensues, that the withdrawal of the right amounts to a consideration in point of law ?]-Yes, if the dispute involves a substantial question. The whole tendency of modern authority is to relax the stringency of the Common Law rule that a man shall not be at liberty, if he pleases, to take a smaller sum in satisfaction of a greater one.-[LEFROY, C. J. It is not averred by the pleading that the waiver of litigation was part of the consideration for accepting the reduced rent.]—Not in terms, but it is to be inferred from the facts set out the position in which the parties stood in relation to each other, and the receipts for the rent reserved in the lease of 1842.-[LEFROY, C. J. The consideration for an agreement must appear upon the face of it.]-But the question of consideration is not now open to the other side; that question might have been raised specifically upon the pleadings. The defence sets out facts which establish a consideration, and those (a) 5 H. L. Cas. 460. (b) 15 C. B. 822; S. C., 1 Jur., N. S., 281; 24 L. J., C. P., 68. VOL. 8. CORPORATION v. E. T. 1858. facts, not having been traversed, must be taken as admitted; if then, Queen's Bench they did not amount to a consideration, the plaintiffs should have demurred; and we contend that the consideration does sufficiently FAIRTLOUGH. appear on the agreement. Secondly, as to the fact of the agreement alleged in the defence: the evidence of the agreement is the receipts for the lesser rent from 1841 to 1854. Had the Corporation intended to reserve a right to fall back upon the old rent, they would have stated so in terms; but the receipts are expressed to be for the "half-year's rent due to the Corporation up to and ending” at a particular date, and the right reserved is merely to impeach the "title and tenure" of the defendant. Rent is a reddendum in respect of the land; it is no part of title or tenure. [CRAMPTON, J. If the receipts had been merely in common form, without any reservation at all upon the face of them, when the lease of 1842 was declared to be void, could not the Corporation have proceeded to recover the entire rent?]-Not exactly, because it would be open to plead payment of part and a gift of the residue; and a jury would be perfectly warranted in finding for the gift: Sibtree v. Tripp (a). It follows then that the reservation was introduced for some object. What was that object? It was not to reserve a right to the Corporation, because they possessed it already; it must therefore have been for the purpose of protecting the defendant from being sued for the back rent; but, at the same time, not thereby to throw any obstacle in the way of the Corporation proceeding to invalidate the lease of 1842. Many ways may be suggested in which it would have been for the advantage of the plaintiffs to have acceded to that compromise. Macdonogh and S. Ferguson, contra. There is no evidence of any such agreement as is alleged. In 1 Smith's Leading Cases, 4th ed., p. 248, in commenting upon the effect of a receipt in full, for all demands, where there is no consideration for the relinquishment of part only of a liquidated demand, the result of the cases is thus stated :—" It is clear, both upon gene"ral principle, and from the decisions in Fitch v. Sutton (b), and (b) 5 East, 230. (a) 15 M. & W. 23, 33. 66 Queen's Bench CORPORATION OF DROGHEDA v. FAIRTLOUGH. "other cases, that such an instrument, not being an estoppel, cannot E. T. 1858. "prevent the plaintiff from insisting that part of his demand "remains unsatisfied." Therefore, the fact that these receipts are for rent up to a particular day does not conclude the plaintiffs in this action. To make the payment of the lesser rent a satisfaction for the greater rent which is now claimed, the discharge from or release of the residue must have been under seal, or some collateral advantage or benefit must accrue thereby to the party abandoning his right. In Co. Lit., 212b, it is laid down, in case of covenant under seal, that "The obligor or feoffor cannot, at the time appointed, "pay a less sum in satisfaction of the whole, because it is apparent "that a less sum cannot be a satisfaction of a greater; but, if the 66 obligee or feoffee do, at the day, receive part, and thereof make an "acquittance, under his seal, in full satisfaction of the whole, it is "sufficient." That passage applies especially to the present case, because a Corporation can only contract under seal. The case of Sibtree v. Tripp (a) establishes that collateral benefit will turn the scale; but what advantage did the Corporation derive from this dealing? Had there been no reservation in the receipts, the corporate rights would not have been prejudiced: Fitch v. Sutton (b); Fur. Land. & Ten., p. 919, s. 41; but a reservation is inserted, to place the matter beyond doubt; and is it to be said, that what was introduced for their advantage shall enure to their prejudice? Ejectment would not lie during the continuance of the old lease. There was no way of impeaching the title and tenure under the new lease, but by distress or action for the rent reserved by the old lease the stipulation, therefore, which saved the right of the Corporation to impeach the lease of 1842 was, in effect, a proviso that the receipt of the lesser rent should not prejudice the right of the Corporation to demand the greater rent-the very point upon which the defendant's argument would give it the contrary operation, making it destructive of the right which it is designed to save. The lease of 1842 had no existence in law; the lease of 1820 therefore was not surrendered; and the result upon the pleadings is, that the Corporation, in consideration of nothing,. (b) 5 East, 230. (a) 15 M. & W. 23. |