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

Leslie v. Wilson [1839] NSWSupC 4

injunction - Admiralty - foreign attachment - bottomry bond

Supreme Court of New South Wales

Willis J., 5 February 1839

Source: Sydney Herald, 9 February 1839[1]

SUPREME COURT. -- In Equity.

Tuesday, February 5. -- Before Mr. Justice Willis.

Leslie v. Wilson, Brothers. -- This was an application, on motion, for a special injunction, on the coming in of the answer, to restrain the defendants from proceeding in the further execution of a decree in the Vice-Admiralty Court; from proceeding on a judgment of foreign attachment; and to restrain proceedings at law generally.

The bill stated the plaintiff (being in Scotland) to be the registered owner of the Nimrod; that he sent the brig from Scotland in 1834, to be employed in these seas, for his benefit, under the care of F. W. Hepburn, Commander, who married a sister of the plaintiff; that Hepburn continued commander till March, 1836, when he appointed Joseph Bennett commander; that previous to, and after such appointment, Hepburn assumed the character of ``owner," and appointed the defendants agents of the vessel, giving them a carte blanche over the brig; that Hepburn died in November, 1836; that defendants procured administration to his effects, and swore he was indebted to them in £727 1s. 8d. on account of the brig: that after Hepburn's death the defendants assumed the entire control and management of the vessel, as they had previously done: expended £627 1s. 8d. in repairs, and by threats and menac[e] compelled Bennet to give them a bottomry bond for £1,400, including not only the £727 1s. 8d., but also the repairs pretended to have been necessary afterwards: that the defendants employed the vessel in the New Zealand trade; that Bennett not having paid the bottomry bond proceedings were commenced thereon in April, 1838, in the Vice-Admiralty Court, in which suit (the decree in which we reported fully at the time) the Judge pronounced for the advances after the death of Hepburn, declaring the bond void as to the £727 1s. 8d.; that while the proceedings in that Court were pending the defendants proceeded against plaintiff under the Foreign Attachment Act (he never having been in this Colony): that in that proceeding one of the defendants swore the plaintiff was indebted to them in £1,600 or or £1,700; that defendants obtained judgment in that suit for £700, being the same amount with which they had indebted Hepburn's estate; that the defendants assumed to themselves the character of owners of the brig, and treated Bennett as their servant; that they never advanced money to Bennett on bottomry, nor consulted him as to the necessity for repairs: that the defendants were not justified in their dealings with the brig, and that they never at any time communicated with the plaintiff respecting her: that the brig was sold under the decree of the Vice-Admiralty Court for £1,000, considerably less than her real value.  The charges in the bill proceeded upon the improper dealings by the defendants with Hepburn and the brig, upon Hepburn's representations that he was virtual owner, although the defendants knew that the plaintiff was the legal and registered owner, and never required any authentic proof from Hepburn that he was acting upon the authority of the owner.  The bill charged that the brig ought to have made gains; and that defendants were indebted to the plaintiff, and should account, &c.: and the bill concluded by stating the insolvency of the defendants.

The defendants, by their answer, admitted the plaintiff's legal ownership; but attempted to shelter themselves, in their dealings and transactions, on the statements of Hepburn, that he was really the beneficial owner, while the plaintiff was the nominal and responsible owner.  The answer also admitted all the material allegations of the bill, denying fraud, but in one part admitting, and in another denying threats to Bennett to o[b]tain the bottomry bond: stated accounts to have been rendered by the defendants to the agents of the plaintiff, which contained errors in his favour; that they were willing to account: also, that the defendants were in embarrassed circumstances.

After hearing counsel for the plaintiff and defendants, but without requiring the plaintiff's counsel to reply,

His Honor said he had no hesitation in granting an injunction, as prayed, upon the merits confessed by the answer.

Counsel for the plaintiff -- The Attorney-General and Mr. Broadhurst.  Solicitor, Mr. Minithorpe.

Counsel for the defendants -- Messrs. A'Beckett, Foster, and Windeyer.  Solicitors, Messrs. D. Chambers and Holden.

 

Notes

[1] See also Sydney Gazette, 12 March 1839.

Published by the Division of Law, Macquarie University