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Decisions of the Superior Courts of New South Wales, 1788-1899

Bryant v. Jones (1843) NSW Sel Cas (Dowling) 725; [1843] NSWSupC 3


Supreme Court of New South Wales

Dowling C.J., Burton and Stephen JJ, 16 December 1843

Source: Dowling, Select Cases, Vol. 7, S.R.N.S.W. 2/3465, p. 131.

Where a tenant provided a promissory note to the landlord; held that the assessors were entitled to find, on the evidence, that the landlord waived his right of distress by taking the note.*

Dowling C.J. This was an action of replevin for taking and converting the plaintiff's good at Bolivair in the district of Paterson on 20 May 1841. The defendant first avowed the taking as landlord for half a years rent amounting to £250 owed from one George Fletcher on 31 December 1840 under a demise from year to year at £500 payable half yearly; and secondly that the goods taken were the property of Fletcher and not of the plaintiff.

Plea to the avowries: first, that George Fletcher delivered to the defendant and the defendant had accepted and received from him a promissory note for £250 in satisfaction and discharge of the rent in the avowry mentioned and second that goods taken were the property of the plaintiff. Issue on both pleas. At the trial before Dowling C.J. and assessors (which was the second) on 23 February last, a receipt from the defendant in the following terms was put into support the plaintiff's plea in bar:

Received from W. George Fletcher his promissory note for £250 dated 5 June 1841, 4 months after date, being for balance of rent due on his portion of the Bolivair Estate on 31 December 1840.

R. Jones.

Fletcher, the tenant, who had become insolvent was tendered as a witness and objected to on the voir dire on the grounds of interest, but was received by the Judge subject to the question of his admissibility. He stated in the settlement of accounts for the dealings which he had with the defendant, he gave the latter the note in question to settle the balance for the rent due from the former, where upon the defendant gave him the receipt. After getting the receipt he gave a bill of sale to the plaintiff who entered into possession of the goods detained. Fletcher did not pay the note when at maturity. The defendant had discounted it and it was now produced as coming from his hands.

On the part of the defendant it was admitted that the plaintiff's plea in bar to the avowry was good in law if it could be substantiated by proof of an agreement that the note was taken and accepted in satisfaction of the rent and in suspension of the landlord's remedy by distress, but as there was no such agreement, the right of distress which was in the nature of a specialty, was not suspended by taking this note, which was a mere security and not a payment. On the other hand it was contended that the receipt given by the defendant was evidence of an agreement to go to the assessors, that the tenant had given the note and that the defendant had received it as satisfaction and discharge of the rent, and reliance was placed upon the fact that the defendant had made the note his own by discounting and endorsing it, which shewed that he took it as an actual money payment of the rent and not as a mere security.

The Judge left it to the assessors to determine whether the note had been taken in satisfaction and discharge of the rent and in suspension of the defendant's remedy by distress. Was it satisfaction or payment of the rent, or was it taken merely as a security. If only as a security, then the landlord's right of distress was not suspended. Did he accept it as a money payment, he taking upon himself the risk of the note being paid at maturity? The assessors found for the plaintiff. Damages 40s. The like verdict had been given at a former trial.

On moving last term to set aside the second verdict, and enter a non suit or to have a verdict entered for the defendant, or for a new trial, or for judgment non obstante veredicto, it was contended that the right of distress for rent, which was a specialty, could be extinguished by a parole agreement to take a promissory note, which was contrary to the principle of Harris v. Shipway (1744) [ Harris v. Shipway (1744) Bull N.P. 182]; Curtis v. Rush (1814) [ Curtis v. Rush (1814) 2 V. & B. 416, 35 E.R. 378]; Davis v. Gyde (1835) [ Davis v. Gyde (1835) 2 Ad. & E. 623, 111 E.R. 240]. Still there was here no evidence of such an agreement and the Judge should have so directed the assessors, and not leave it to them to put a construction upon the receipt which was a matter of law for him to determine. Contra it was admitted that a mere parole agreement could not extinguish an obligation in the nature of the specialty, but it was conceded that the plaintiff's plea to the avowry was well pleaded if it could be established, and was properly left to the assessors to say whether the taking by the defendant of a negotiable security, which he had himself discounted, was not taken as a real money payment.

If the defendant received the note as security, which was the question left to the assessors, then it was an extinguishment of his claim for rent. The defendant was not bound to take the note if he meant to stand on his landlord's right of distress. The language of the receipt itself imported that it was not a receipt merely for the note, but for a balance of rent. Whether the note was or was not paid by Fletcher at maturity was immaterial to the question if the defendant took the note as money and became his own endorser upon the risk of its being paid. If the assessors had decided in the affirmative and the verdict ought not to be disturbed after a second verdict the same way.

There is no doubt as a proposition that the mere taking of a promissory note on account of rent is not an extinguishment of the right of distress. That was the principal established by Davis v. Gyde upon the authorities there cited. But that case does not decide that a special plea that the note was accepted in satisfaction and discharge of the rent would not be a good bar to an avowry for rent if well proved. The Court could not give effect to the agreement in that case, because the matter of defence had not been specially pleaded. In that case Lord Denman C.J. threw out "That the taking of a note or other transaction of that kind may be evidence of an agreement to suspend the right of distress. But here we could know from the plea what may have passed upon the subject", and in giving judgment he says "If the giving of a promissory note could operate as a suspension of a claim of rent it should have been pleaded accordingly". Williams J. said "It is not pleaded that this note was received in satisfaction. Nothing is disclosed by this plea to raise that defense: it ought to have been expressly shewn by plea that either by agreement between the parties, or from some other cause, the note had such an operation". Coleridge J. said "If there was anything that could give the transaction such an effect, it should have been specially pleaded". The plaintiff has here pleaded specially to the avowry "that the plaintiff delivered to the defendant and the defendant accepted and received from him the note in satisfaction and discharge of the rent". Taking it, notwithstanding the general rule, that such a plea may be pleaded, the question is whether the receipt for the note, and the dealing with it by the defendant by discount was sufficient evidence to go to the assessors of an agreement that the defendant accepted and received the note in satisfaction and discharge of the rent.

I have considered the case and on the whole I am of the opinion that the verdict ought not to be disturbed by sending the case down for a third trial. It appears to me that the verdict found by the assessors may be treated substantially as a finding that the defendant had abandoned his claim of rent, so far as the right of distress was concerned, though I doubt whether strictly speaking the Court was satisfied. At the time the defendant took the note he had a right of distress - a very stringent power in the hands of a landlord. He thought proper to waive his right, and take a note in payment of the rent and give a receipt for it as the balance of rent. Having armed the tenant with this receipt, he enabled him to dispose of the goods to the plaintiff whose title seems not to have been impeached. As far, therefore, as the right of distress is concerned I think that the substantial justice in the case is satisfied by the verdict. In strictness there was no evidence of an agreement not to distain. If the agreement had been so pleaded and proved it would have been a decisive answer to the avowry: it must be conceded that taking a promissory note is not a bar to an extinguishment of a right of distress for rent, but seeing that the evidence was sufficient to establish the plea, as presently pleaded, I think not we ought not to award a third trial.

Published by the Division of Law, Macquarie University