BANKRUPTCY OF E. J. SEARI.

Wairarapa Daily Times, Volume XV, Issue 4861, 26 October 1894, Page 3

BANKRUPTCY OF E. J. SEARI.

The Judgment The following judgment has been given by District Judge Kettle:—" On 25th May Inst, Wm, Gundy, a blacksmith at Fcatlicrston, _ also a J.P., obtained a judgment against the aboveimmcd bankrupt for £27 odd. The defendant endeavoured in the Magis(rule's Court, where the enso was heard, to set off a counter claim for the sum of £25 odd for drink supplied to the plaintilt on credit. Tho Magistrate, Mr Hutchison, disallowed tho set off on tho ground that by section 133 of tho Licensing Act, the defendant could not recover for drink sold on credit I am of opinion that the Magistrate was right iu so holding. The defendant afterwards, viz., on 17th August, filed his declaration of insolvency. Mr Cuudy proved in the estato for tho amouut of liis payment, aud the D.O.A, rejected the proof on the ground that the contra for drink should be deducted from the amount of the judgment. Mr Cundy now seeks to reverse the decision of the D.O.A. lamofopinionthattho contra for drinks cannot be allowed and that Mr Cuudy is entitled to prove in tho estate for the full amount of the judgment. The eases cited by Mr Diiiiny only serve to show that where a demand such as one for drink supplied, cannot be recovered by a court of law, and the person owing the same is also indebted tothe publican in otlieramounts recoverable in a court., and pays a sum on account, the Ipublicnu can appropriate such payment to the amouut due for drink. Iu the present case there was no agreement that the drink account should be set off against the other account.no account stated and settled and the question of of appropiatioa does not arise. The motion will be allowed without costs.

In Kawley v. liawlcy, Ist Queen's Bench, div. -Hi;), Chief Justice Cockburn says " The right of set off depends, I think, upon there being an actionable debt. The statute, no doubt, speaks of debt, but that—unless a very narrow construction be adopted—means "actionable debt," and .lucke Field says the language of the statute of sct-olf though iti says on "debt" has been held by a long series of decisions to mean'' actionable debt,"