RESIDENT MAGISTRATE’S COURT.

Temuka Leader, Issue 1947, 24 September 1889, Page 3

RESIDENT MAGISTRATE’S COURT.

Temuka—Monday, Sept. 23,1889,

[Before Captain C. A. Wray, R.M.] DEUKEENNESS.

A first offender, charged with drunkenness, was discharged with a caution, ho having been locked up since Saturday night. crvn CASES. J. T. M. Hay hurst v. J. Henry (New Plymouth)— Claim £2O 18s, for flour. —The claim was proved by Mr J. Y Ashwell, and judgment was given for ' plaintiff, with costs, A. R. Allan v. John Barrett—Claim £llßs lOd, for good supplied.—Judgment for plaintiff for amount claimed j and costs.

Burrows and Heap t. A. Q-. Wright —Claim £l4 12a 6d.—His Worship gave judgment in this case, the evidence in which was taken at Temuka on the 9th September, Mr Salmond appearing for plaintiffs, and Mr Hay for defendant.—His Worship gave judgment as follows: This is a claim made by the executors of Elizabeth Heap against A. GK Wright for the sain of £l4 12s 6d, due for board and lodging from August to December, 1888. The defendant admits the claim, and seeks to set off two promissory notes in favor of William Ackroyd, or order, and indorsed to him, amounting to £26 Is 4d, due on January 4th and February 4th respectively. The Statute of Set-off enacts that if either party sue or be sued as executor or administrator, where there are mutual debts between the testator or intestate and either party one debt may be set off against the other. It is necessary, therefore, to ascertain whether in this case these mutual -relations existed. It appears from the evidence that Elizabeth Heap died on the 4th December, and that the claim for board and lodging accrued at that time. There is some doubt as to when the notes were first endorsed by Ackroyd to the defendant, but they were not delivered until the 19th December, after the death of Elizabeth Heap. They were given to Ackroyd in payment of a butcher’s account, and he transferred them to the defendant on his promise that he would pay him (Ackroyd) the debt which he owed to Elizabeth Heap. That debt the defendant has not yet paid. Both Ackroyd and the defendant assert that tjie bills were endorsed to the defendant about November. Delivery, however, was necessary, even if such was the case (Byles on Bills, page 153, 13th edition ; Chapman v. Cotterill, 34, L. J., Exchequer 186, and Con v. Troy), and on the evidence generally I

hold that there was no complete endorsement to the defendant of the j notes during Mrs Heap’s life. It ■follows then that if there ever was a ionct fide transfer of the notes from Ackroyd to the defendant at all, it took place about the 19ih December, and that the defendant had no cause of action until that time. Such being the case, the question is whether the notes can be set off in this action as a mutual debt, I think not. The cases Watts v. Eees, and Eees v. Watts, reported in 23 L.J., Exchequer 238, and 25 L.J., Exchequer 80, seem to be in point, and in his judgment Coleridge (J.) remarks: necessary that debts should originally have existed between the two living parties.” Here if there can he said to be a debt at all, it never existed during the testator’s life. At the time when the defendant acquired the bills, if he ever did, the persons liable were the executors, to the extent of the assets in their hands. This appears to me to he simply an attempt by Ackroyd to obtain payment of an account by absorbing the amount of defendant’s indebtedness to the estate, which, if permitted, would be altering the due course of the distribution of assets, contrary to the statute. The set-off will be disallowed, and judgment given for the plaintiff for the amount claimed and costs, including solicitor’s fee. The Court then rose.