Burton J., 28 February 1838

Kentish v. Jones.  The plaintiff in this case is the editor of The Sydney Times and the defendant is a printer residing in Bridge-street.  This was an action to recover compensation for an illegal distraint.

The plaintiff rented an office of the defendant for which he agreed to pay a rent of £13 a quarter; at the expiration of the second quarter a further agreement was entered into by which the plaintiff agreed to pay £25 a quarter, £10 to be allowed for certain repairs.  At the end of three quarters when there was a large sum due by the plaintiff to the defendant on a general account for printing &c., the defendant distrained for £51 rent due, the next day however only claiming £41, the alterations for which the £10 was agreed to be allowed, having been completed.  The defendant furnished the plaintiff with an account of all that was due to him, the three first items on the debit side of which were the three quarters' rent; on the other side credit was given for two payments amounting to £23 8s. 6d.  These payments Kentish insisted were on account of rent and tendered £15 which he said was all that was due; Jones however said they were made on the general account and refused to take the £15, and, after keeping possession the usual number of days, called a sale when Mr. Kentish paid the sum he claimed under protest, and commenced his action for the illegal levy.

His Honor said, that the defendant had furnished an account in which the three quarters' rent were made the first items; and that it is a well-known principle in law, that all payments on an account must go towards liquidating the first items.  It was evident that the defendant had levied £23 8s 6d too much, which the plaintiff was entitled to recover.  He was also entitled to receive such moderate compensation as the assessors considered he was entitled to, in consequence of having a keeper in his house and a bellman at the door.  But they would recollect that the defendant did not appear to be actuated by malice, but had acted merely under a mistake.  Verdict for the plaintiff.  Damages, £50.

Counsel for the plaintiff, Mr. Foster; for the defendant Messrs. Windeyer and Check.

Notes