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

Sherwin v. Edwards [1841] NSWSupC 11

injunction - chemists - pharmacy - partnership - restraint of trade clause

Supreme Court of New South Wales

Dowling C.J., 8 February 1841

Source: Sydney Herald, 9 February 1841[1]

SUPREME COURT. - EQUITY SIDE

            Monday. - Before the Chief Justice.

            Sherwin v. Edwards and Huntley. Mr. Windeyer rose to move the Court to grant an injunction on an affidavit which detailed the following circumstances:-- That in 1838 the deponent, Mr. Sherwin, and the defendants, Messrs. Edwards and Huntley, of Pitt-street, entered into a joint co-partnershlp to carry on the business of chemists, druggists, &c., and continued to do so for about two years, when becoming mutually dissatisfied, they agreed to dissolve the partnership; the applicant was empowered to wind up the affairs of the firm, receive all moneys, pay all debts, &c., after which he was to make out a statement of affairs; it was stipulated that within four months after Mr. Huntley should receive his share of the profits, in terms of the agreement of copartnership, and that deponent should pay to the then defendant, John Alabaster Edwards, the sum of £1000. It appeared that the agreement was entered into on or about the 28th Nov., 1838, one of the stipulations of which was that a set of books should be kept on the premises where the business was carried on, in which should be entered a full account of all receipts, disbursements, and debts, due to and by the firm. On the 30th Nov., 1840, it was determined to dissolve the firm, and on the 16th Jan., 1841, Mr. Alfred Reynolds Huntley carried off the books of the firm. It appeared also from the affidavit, that Mr. Huntley had since then been collecting the moneys due to the firm, and applying them to his own private use; also that during the time of partnership the said William Huntley had appropriated the moneys of the firm to his own purposes, and had contracted private debts in the name of the firm. Mr. Windeyer admitted that the notice which had been served on the defendants might be objected to, having only been given on Saturday, but as it was the practice of the Court in extreme cases to grant injunctions even before the summons was issued, and as the present was in his opinion such a case, he thought the Court was called on in the exercise of its summary jurisdiction to grant an injunction to restrain the defendant from collecting moneys or transacting business in the name of the firm; also to prevent the said defendant from using the books of the said firm, as by the terms of the dissolution of partnership it was mutually agreed that the defendants should not carry on business in Sydney for twelve months from that time.

            Mr. Broadhurst followed on the same side, and cited several cases in support of the application.

            His Honor said it appeared to him that on the face of the affidavit, there was aprima faciae case in support of the application. As it was sworn that books were to be kept, and that the proper depository for these books was the premises, where the business of the firm was carried on. It had also been sworn that the deponent was the party who had been appointed to wind up the business of the firm, and it was therefore a reasonable inference that to enable him to do so, the books should remain on the premises and be accessible to him. He should, therefore, grant the application, which might be discharged, should sufficient grounds be shown in the answer, or by fresh matter.

Notes

[1]              See also Australian, 11 February 1841.

Published by the Division of Law, Macquarie University