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

Cummings v. MacKenzie (No. 1) [1847] NSWSupC 16


Supreme Court of New South Wales

Therry J., 19 April 1847

Source: Sydney Morning Herald, 21 April 1847, in Supreme Court Collection, Vol. 1, pp 107-108 [1]


BEFORE his Honor Mr Justice THERRY.


His HONOR pronounced judgment in this case as follows:-

This is an application for a special injunction to restrain proceedings under an alias execution for the sum of £2982 10s. 5d., issued by the defendant M'Kenzie against the plaintiff, Thomas Cummings. A perusal of the affidavits on both sides satisfies me that the plaintiff (Cummings) is entitled to equitable relief, though the complicated nature of the accounts renders it no easy matter to determine the extent to which he is entitled to it, and the terms on which it should be afforded. It was admitted by counsel on both sides, that English precedents furnish no precise guide marking out the course to be pursued in the present instance: and the novel and unusual mode of dealings between the plaintiff and defendant leaves the Court to the exercise of its discretion on a review of all the circumstances submitted to its consideration. It is impossible altogether to separate the present case of Thomas Cummings from that of William Cummings: for the judgment has been obtained upon two out of four joint and several promissory notes which the present plaintiff signed for the accommodation of William Cummings, and as a surety for him. It will not then, I apprehend, be contended but that any payment on account of these notes by William Cummings should operate to the extent of such payments as a relief of his surety - the present plaintiff. The proceedings, with reference to these notes as they appear on affidavit are briefly these: - In January 1844, M'Kenzie brought an action on the first two of four promissory notes, one for £990, and the other £1070, against Thomas Cummings, which came on for trial at the Bathurst Circuit Court, in March, 1844, when a verdict was obtained for the plaintiff - as Thomas Cummings alleges - and it is not denied, - by consent - on the supposition that the action was brought on the last two notes. It may be said, and indeed it was contended that the present plaintiff had an opportunity of defending this action - and his negligence precluded him from the equitable relief he now sought. This argument would have been entitled no doubt to much weight, were it not that the plaintiff Mackenzie had previously given under his own hand a memorandum dated April, 1843, by which he had admitted that these two bills were "due and paid." Such a memorandum was certainly calculated to lull the defendant Thomas Cummings into a belief that the action was brought for two bills, which were due and unpaid, and not for bills which Mackenzie had himself admitted to have been paid. It is stated in the affidavit of Mr. Mackenzie, that the sole object of that memorandum being given, was to state his belief that the signature of Jeremiah Grant to the notes were genuine. If so, the language of the memorandum should have been confined to the purpose for which it was given, but I cannot advert to the expressions in the memorandum acknowledging that the two first notes had been paid, without being strongly impressed that it had a manifest tendency to excuse the misapprehension into which Thomas Cummings was led, namely, - that the action was brought to recover the two last and not the two first notes. A close attention no doubt, to the amounts sued upon, might have protected Cummings from this error, yet some excuse is afforded him by the conduct of the plaintiff, for his having fallen into it. It is admitted, moreover, that the defendant in the action made no defence on the merits. It was a verdict taken by consent. It is a question on which I do not now feel called upon to decide, whether or not the taking of the bill of exchange and promissory note referred to in the affidavit of Mr. Mackenzie, intended to secure the two original promissory notes, and on one of which he admits partial payments to have been made, may be deemed to the extent of these securities as a payment of these notes - but a point which in considering this case, mainly arrested my attention is, that I do not observe in reply to the strong body of facts contained in the affidavits of Thomas Cummings and Robert Johnson a clear and distinct allegation by the defendant, that the amount of the two first notes for which the action was brought, and which led to the judgment on which the present alias execution has issued has not been now paid and satisfied. It may be that the amount of the verdict was not paid at the time of the trial, but since the execution for £2680 against William Cummings on his warrant of attorney, in 1843, it is sworn that the defendant admitted had received £1500. The last sentence he of the affidavit in which it is sworn that "there is now justly due and owing to the defendant Mackenzie, in respect of the four original notes hereinbefore referred to, a balance upwards of two thousand six hundred pounds, is not a denial of fact, that the amount due on the two first notes had been paid. It is consistent with this that the judgment on the two first notes may have been paid. I have read Mr. Holden's affidavit attentively; the plain and obvious import of which is, that though the execution which did issue for £2688, might have been issued for a larger sum, or at least that Mr. Cummings was indebted to M'Kenzie in a larger sum; yet, from the complicated state of the accounts and malicious use to which he apprehended any error might be perverted, he did not deem it prudent to advise the issuing of the execution for a larger sum. Giving to this statement the full credit which is due to it, yet Cummings was entitled to believe that the sum for which the execution did actually issue was the amount and the whole amount, in which he stood indebted to M'Kenzie, on the warrant of attorney. Upon the whole, there does appear to me, on these affidavits on behalf of the plaintiff, such a series of uncontradicted facts deposed to, that the amount due upon these notes has been paid, that I consider sufficient grounds have been laid for granting the special injunction prayed for, but subject to terms, as the plaintiff is indebted as a surety in another sum, altogether independent of these notes. But though I were in error in this view, as it is sworn to, that the verdict was one taken by consent and under a mistake of facts, namely - that the action was brought for the last instead of the first of the notes - and that statement is uncontradicted - in equity and good conscience, this plaintiff is entitled to relief. The equitable terms which I deem it right to impose, are suggested by the nature of the transaction, and by the admissions made in the plaintiff's own affidavits. Now, it is admitted in these affidavits, that on the plaintiff's own promissory notes what he terms an inconsiderable balance is due to the defendant. The term "inconsiderable balance" is a very vague term, and from it alone it would be impossible to form a conjecture even of what amount may be due from the use of so indefinite a term; but in a subsequent passage of Mr. Johnson's affidavit it is stated that the Master has made a report of what is due upon the notes, and though that report has not been yet confirmed, yet it is referred to by Cummings himself as the sum found by the Master to be due, and insisted on by him as a foundation on which to rest his present application. The accuracy of this finding is not denied or questioned, and may therefore reasonably be deemed to represent, at least for the purpose of the present application, the sum which the plaintiff's own affidavit describes under the name of an "inconsiderable balance" I think then that upon the principle that those who seek equity should be desirous to do equity, the special injunction in this case to restrain the issuing of execution until answer, or further order should be granted, on the condition contained in the order I now propose to make.

Ordered - That if the plaintiff Thomas Cummings do, on or before the third day of May, pay the sum of five hundred and ninety six pounds and nine shillings into this Court, to the credit of this cause, subject to the further order of this Court; then it is ordered that the defendant, William Henry Mackenzie, be restrained, by the injunction of this Court, from issuing any execution on the judgment for £2,600, obtained by the said defendant, against the present plaintiff, in the Circuit Court, at Bathurst, in March, 1844, - until the said defendant shall fully answer the plaintiff's bill, or this Court make other order to the contrary. But if the said Thomas Cummings shall not pay the said sum within the time mentioned, then the defendant Mackenzie be at liberty to proceed, under the alias writ of execution; he undertaking not to levy thereon for a greater sum than £596 9s.


[1] See also Cummings v. MacKenzie (No. 2), 1847; MacKenzie v. Cummings, 1847; Cummings v. MacKenzie, 1848.

Published by the Division of Law, Macquarie University