[injunction – bills of exchange]

Grant v. Wilkinson and Knight

Supreme Court of Van Diemen’s Land

In banco, Pedder C.J. and Montagu J., 28 and 31 May 1839

Source: Tasmanian, 7 June 1839[1]

            Mr. Harrison prayed the Court for an injunction to restrain the defendant, Knight, from negotiating three bills of exchange for £300 each, under the following circumstances; Goods to a considerable amount, had been sent out in 1824, by the house of Wilkinson, of London, to meet which, the plaintiff had remitted colonial produce - but no settlement, nor adjustment had been made between them up to the present time. On the 21st January last, Mr. Knight arrived from London, with a power of attorney, to recover £1,500 from Mr. Grant, alleged to be due to Mr. Wilkinson. At this time, Mr. Grant was in ill health, and on the 28th April last, gave Mr. Knight three bills of exchange for £500 each; but, upon going over his books, he, on the 22d May, found, that the balance was in his favor, upwards of £1,000, without including the three bills of exchange. To restrain Knight from negotiating these bills, the present injunction was prayed for.

            Mr. Justice Montagu. - Unless you can show some impropriety, on the part of Mr. Knight, or swindling act, we do not sit here, as a bench of clerks, to settle disputed accounts; it seems to me, the Equity of the matter is strongly against you.

Chief Justice. - This appears to me to be the case. The plaintiff received from Wilkinson of London, goods, for which he was to make returns in money or Colonial produce; he sent the latter, and it is sold at a loss; this was 1824; but he is not able to vouch for his accounts up to 1839, and his plea goes, that he had not been able to make out his accounts, his books being in the hands of Messrs. Bethune and Grant, from whom he could not obtain them; he could, however, have taken measures to have compelled them to have delivered up the books; in 1839, out comes this gentleman, Mr. Knight, from England, with a power of attorney from Wilkinson to compel the payment of the £1,500, alleged to be due; the plaintiff, being unwell, unwittingly gives the bills of exchange for £1,500, and, now, finding Wilkinson to be in his debt, he prays for an injunction to restrain Mr. Knight from negotiating these bills.

Mr. Harrison. - That is my case.

Chief Justice. - Then I can see no grounds for the injunction. It would be very easy, if a claim was made against a party, to put off the present pressure, by giving negotiable instruments, and then come into this Court and call upon us to put our hands upon them, until an answer could be filed; and, as one of the parties resided in England, it would occupy at least nine months.

Injunction refused.

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 [31 May 1831]

            This was a motion made by Mr. Harrison, upon the last sitting of the Court, for an injunction to restrain the defendants from negotiating three bills of exchange for £500 each, given by plaintiff to Knight, as agent for Wilkinson under a power of attorney. The Court now delivered its judgment.

            Sir John Pedder. - This was an application made by Grant for an injunction to restrain the defendants from negotiating three bills of exchange until answer or further orders. As he had stated, at the time, the application was made, he was still of opinion, that the affidavit, upon which this application was made, was so loose, so vague, and so unsatisfactory, that it made out no grounds, upon which to grant the injunction, and he should be guilty of a great direliction of duty, if he granted the present application. He would shortly go over the grounds upon which the application rests. His Honour then went over the case, as previously reported, by which it appeared, that the plaintiff had remitted to Wilkinson upwards of £1,000, independently of the three bills. His Honor, in continuation, observed, that he had no doubt, if a party came before a Court of Equity, stating, that, while labouring under ill health, and his mind impaired, advantage had been taken of him and that his hopes or fears had been worked upon, or that, by false representation, he had been induced to accept the bills, and these statements were supported by proper evidence, no doubt the Court would interfere, or, where it was a clear case of mistake, he was not prepared to say, that the Court would not grant relief. The first thing was quite clear, that no fraud could be greater than taking advantage of a man’s aberration of mind, that was clearly not made out here, and he could not think of granting the application upon that ground at least, neither was sufficient ground of mistake set forth.  If they intended to impute fraud, it should have been set forth with sufficient distinctness upon the face of the bill, that the party might have answered it. The application must be refused.

Mr. Justice Montagu fully concurred in the opinion of the Chief Justice.