The hearing of this case was resumed, Mr. R. E, Wainewright again appearing for the plaintifis and Sir. LIS. Wilkinson for the defendant. The case had been adjourned from the last occasion for his Lordship to consider whether there was any case for the defendant's counsel to answer.
Upon taking his seat, his Lordship said I think I have already explained to you, Mr. Wilkinson and Mr. Wainewright, that the case must go on—I cannot atop it at this stage. It is unnecessary for me to say more.
Mr. Witkrxsox than proceeded with his argument on behalf ut the defendant, and was going on to refer to proceedings which took place in 1878 between Raphael and Benjamin, when his Lordship interposed and said he could not go so far back unless something very startling depended upon Dr. Winxnssox then proceeded to rei correspondence to show that at the time of the sale of the property Raphael believed Benjamin to be indebted to him.
His Lonpseip—That seems to me to be immaterial. As the case stands at present, I think the plaintiffs have made out strong case. The agreement of April 19th 1881, to my mind shows the clearest possi ble intention on the part of the defendant to waive any possible claim to lien; but I go further than that, It seems to me that th whole of the plaintifis' case establishes this fact—that the property account is separate from the general accounts. As to lien, as the matter now stands, the accounts, which it is suggested Mr. Raphael accepted, show that the -purchase money was practically paid in advance and therefore there was nothing to have lien for. Unless you can satisfy me that the agreement bears. totally different construction from that which the plaintiffs put upon it and which Cam inclined to put upon it, I must decide against you.
Mr. Witxrssox said he was quite prepared to show that. After reading further correspondence, the learned counsel said he would proceed to call evidence to prove that the accounts upon which the plaintiffs relied did not show in any way that Raphael was indebted to Benjamin on the property account.
Cuantes Hexny Dattas, public acccuntant, called and examined by Mr. Wilkinson, said he had made a summary and restatement of the account rendered Benjamin in the suit of Raphael v. Benjamin. It was up to March Sist, 1881. Phe property account did not throw any light on the position of the parties with regard to the payment of the purchase money. It appeared to be a copy of an account standing in Benjamin's own ledger, and showed that property was acquired on the account for Tls. 27,730, and sold for Tls. 30,000. The account did not state that Raphael had been credited with the half of 30,000, but that the property account had been credited. The effect of crediting the account in that way was not to credit one of the half owners with the amount; but in the other accounts put in Raphael was credited with Tls. 27,730, and that was where he obtained payment, and not in the pro-account, Tt did not show at any time whether Raphael was indebted to Benjamin or Benjamin to Raphael in rospect of the property. If the accounts were correct, Raphael had been paid or had got an equivalent for the purchase money.
Mr. Wiixinsoy—Are you able, without going into the accuracy of the accounts, to determine whether Raphael ever was paid for the property 1 Witness—If he was paid for the property he was paid in account. If the account always showed a credit in his favour, I should say ko was not paid; but if the account, properly made out, showed a balance against him, I suppose that would be considered payment.
His Lonnsurp—That is a question of law, Mr. Wirxrxson—You have gone very carefully into the accounts; are you able to state broadly any circumstances with regard to the accounts bearing upon the accuracy of the items charged against Raphael 7—that is to say, whether Raphael chargeable with the items charged to His Lonvsurr—This is a one-sided account, and we cannot presume it is absolutely accurate.
Witness—I found that in the accounts at this time (April 1881) and in the next few weeksfollowingthere were several large cash payments made by Benjai to Raphael.
accounts which are made up tu Deoom: ber Sist, 1882, by Mr. Corner, show that enormous losses accrued up to September, 1880; and looking at it rather a tical man than as an accountant, it seems impossible that, if these losses wei perly chargeable to Rapha must have known them in the winter of 1880, should in the spring of 1881 be continuing to make cash payments, after al traneestions between the parties had been closed.
In further examination, the witn the accounts he had been to pri showed that, leaving, everything else out, the amount that ought to have been due for the property only on March 1st, 1881, was Tls. 16,746; but if the whole of Mr. Corner's accounts were correct ti was merged in them and had been paid for, ination by Mr. Wainewright, witness said accounts of the same nature could be kept in. different way, What the accounts showed was that the property was originally bought: from Rajhael for the joint account of Raphael and jamin for Tls. 27,730, and that amount was credited to Raphael's individual account.
A number of other questions having been put to the witness with regard to the tinction between the different kinds of uc: counts connected with the case, Janes BucwaNax, (who made an affirmation in place of taking the customary oath), property and estate agent and sharebroker, was called by Mr. Wilkinson and examined as to the inferences to be drawn from entries in the accounts.
At the conclusion of the witness's examination, his Lordship observed that Mr. Wilkinson had better call his principal witness at once, and that the learned counsel had taken up a good deal of time in proving things that were not disputed.
Mr. Wingrxsow replied that he would call the defendant next day. His case was that payment had not been made for the Property.
The case was then adjourned till Tuesday at ten o'clock,
Text read from the printed page and cleaned; old type leaves the occasional error.