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

Hindson v De Mestre [1833] NSWSupC 15

distress for rent - replevin

Supreme Court of New South Wales

Burton J., 7 March 1833

Source: Sydney Herald, 11 March 1833

Hindson v. De Mestre. - This was an action of replevin, defendant having distrained on plaintiff's goods in Macquarie place for rent, which was alleged to have been paid.  The defendant pleaded non sepit, that he had not distrained or taken plaintiff's goods and chattels, and justified the taking on the ground that £200 was due for rent.  To this plea and avowry plaintiff replied, 1st, that defendant did distrain; and 2d, that the rent was paid.

Mr. F. Stephen opened the pleadings, and Mr. W. Foster addressed the Court.

The plaintiff in this case rented a house of defendant in Macquarie-place, at the yearly rent of £200, payable half yearly, on the 24th March and the 24th September.  On the rent for half a year becoming due on the 24th March, 1832, defendant called at plaintiff's house for the amount, but only saw the clerk, who mentioned it to Mr. Hindson; he said it would not be convenient to give a check, but he would give his note at three months, adding interest, accordingly he drew out a note for £102 10s., and sent it in a letter to Mr. De Mestre; the note was not returned, but discounted at the Bank of New South Wales, and was paid by plaintiff when it became due.  Before the other half year's rent became due, Mr. Hindson became embarrassed in his affairs, and meditated calling his creditors together, but finding that they were hostile to him, and being aware that Mr. De Mestre, not like the other creditors, could put in an execution, he went to his house on the 23d September to settle the rent; a memorandam [sic], half in plaintiff's and half in defendant's hand writing, proved the transaction; viz.

Sydney, September 23, 1832.

Mr. M. Hindson, To Mr. P. De Mestre. Dr.

For rent of No. 7, Macquarie-place, up to this date, £100.  Received G. Nichol's note for £71, and F. Mitchell's note for £35 1s.

(Signed)P. DE MESTRE.

Both these notes were discounted at the bank of New South Wales, and when they arrived at maturity were retired.  For some cause or other, on the 2d of the ensuing month Mr. De Mestre put an execution into plaintiff's house for a year's rent, when the goods were replevied.  The present action was now brought to prove whether the rent had or had not been paid.

The defence to the action was, that the whole case was an attempt at fraud, and that the written document produced showed that on the very face of it.  It was proved that on the 19th September, four days before the last payment of rent was said to have taken place, a bill drawn by plaintiff in favor of defendant for £150, and discounted at the Bank of Australia, fell due, but was not retired by plaintiff, and Mr. De Mestre was under the necessity of doing so; there was also another bill for £200 obliged to be retired by defendant under similar circumstances, on the 6th October, both of which were now in his hands; it was therefore contended that it was clear the notes of Mitchell and Nichols were received by defendant as part payment of the dishonored bill for £150, it being a principle of law, that where several accounts were owing, the creditor had a right to place any money he received to which account he thought proper, as defendant had one here.

Judge Burton put the case to the Assessors on the following point: - Whether on the 23d Sept. When the note was written and signed by Mr. De Mestre, he took the notes in payment of rent then due, or as a collateral security for other debts.

The Assessors found a verdict for the plaintiff, damages forty shillings.

Messrs. Foster and F. Stephen for plaintiff, Messrs. Wentworth and C. H. Chambers for defendant.

Published by the Division of Law, Macquarie University