[equity and common law, separation of – injunction – promissory note]

Lang v. McEachren

Supreme Court of New South Wales

Dowling C.J., 12 February 1841

Source: Sydney Gazette, 13 February 1841

EQUITY SIDE

            LANG V. SPILLSBURY AND MCEACHERN. - Mr. A’Beckett moved for an injunction to restrain the defendants from collecting certain debts due to the Colonist newspaper, which, together with the copyright and other materials of the newspaper, it appeared, had been assigned to Mr. James Noble, as trustee, in trust among other things to pay certain Bills of Exchange amounting to £15,000, given by the defendants to Mr. Andrew Lang. The bills being dishonoured, the trustee had resumed possession of the printing presses, &c. connected with the paper; but the books of accounts, containing the credits of the business had been removed by the defendants, who refused to give them up, and were collecting and appropriating to their own use the debts due to the concern. - Injunction granted.

Dowling C.J., 12 February 1841

Source: Australian, 13 February 1841

            Lang v. McEachern and Others. - Mr. A’Beckett, on the behalf of the plaintiff in this case, applied to the Court for a special injunction, in order to restrain the defendants from collecting any of the outstanding debts remaining due to the proprietors of the late Colonist newspaper, on the ground that certain bills to the amount of £1500, payable at three, six, and nine months, and granted by the defendants to the plaintiff, had not been duly satisfied. His Honor remarked, that as an answer to this application had not been opposed in Court, he should grand the injunction applied for, subject, however, to the chance of being annulled upon a sufficient cause to that effect being shewn by the defendants.

Dowling C.J., 19 February 1841

Source: Australian, 20 February 1841

            Lang v Spilsbury and another. - An application was made to the Court by Messrs. Foster and Broadhurst, in this case, to set aside the injunction granted on Friday last, restraining the defendants from collecting any sums due on account of the Colonist newspaper. This application was made on the following grounds, namely; that the defendants, Messrs. Spilsbury and McEachern had taken charge of the Colonist, in the first instance, at the urgent request of Mr. Lang, who, having discovered that the property was in a ruinous state, and that he was losing rather than gaining by the concern, proposed that the defendants should purchase the same, in consideration of three promissory notes payable at distinct periods; and on the understanding that, in the event of their not finding the profits of the business sufficient to pay its expenses, they should be at liberty to give up its possession; when the before-mentioned notes should be returned to them by the plaintiff, unless the property in question should have been deteriorated or lessened in value by, the wilful neglect or mismanagement of the defendants, the defendants also agreeing to renew the notes in question for a period of from two to three years. On the faith of these promises, which were expressed in a letter under the hand of the plaintiff, the defendants joined in a deed of sale, by which the property was legally placed in their possession, and trustees were appointed to carry out the terms of the agreement, and it was under these terms that the defendants gave up the possession of the Colonist some time since to Mr. Noble, on behalf of the original proprietors, by whom the whole of that property was disposed of to the proprietors of the Sydney Herald for £800. All monies therefore which might accrue to the concern during the time when it was under the management of the defendants would be payable to them alone.

            Messrs. A’Beckett and Hustler spoke at considerable length in support of the injunction, and argued that according to the terms of the deed of sale the defendants were bound to surrender all the outstanding assets belonging to the concern at the time when they should give up possession of it. His Honor decided that the injunction should be set aside, the defendants having in his opinion shewn a sufficient cause to that effect, the continuance or discontinuance of the injunction, he remarked, was the only point which was then at issue, and being satisfied on that score, he did not think himself called upon to go any further into the case, or to pronounce an opinion upon its nature.

Dowling C.J., 21 May 1841

Source: Sydney Herald, 22 May 1841

COURT OF EQUITY

Friday. – Before Sir James Dowling, in Chambers.

            On Friday, the 14th instant, an application was made before His Honor the Chief Justice, at his residence, by the defendants in the suit Lang and others v. McEachren and another, in order that the plaintiffs might be compelled to make their election whether they would proceed at law or in equity, they having proceeded in both Courts to recover the alleged value of the late Colonist newspaper, when an order in compliance with the application was granted. Yesterday the plaintiff in the suit moved the Court to have the above order set aside, when after counsel had been heard on both sides the application was refused with costs.

Stephen J., 23 June 1841

Source: Sydney Gazette, 26 June 1841

            Andrew Lang v. James Spilsbury and James McEachern

            This was an action upon the defendants’ three joint and several promissory notes in favor of the plaintiff.

            The plaintiff proved the defendants’ signatures to the notes.

            The defence was that the notes were given for the purchase of the Colonist newspaper, upon the terms of the notes being cancelled provided the newspaper were returned to the plaintiff with the same circulation as it had at the time of the sale.

            Verdict for the plaintiff, for £1623.

            The Solicitor-General and Mr. Foster for the plaintiff; Mr. Broadhurst for the defendants.

Andrew Lang v James Spilsbury and James McEachern

This was an action by the same plaintiff against the same defendants upon other promissory notes.         

Verdict for the plaintiff, for £338 11s.

The Solicitor-General and Mr. Foster for the plaintiff; no appearance for the defendants.

Andrew Lang v James McEachern

This was an action upon the defendant’s promissory note to the plaintiff.

Verdict for the plaintiff for £108 5s.

The Solicitor-General and Mr. Foster for the plaintiff; no appearance for the defendant.